Notes On Human Rights Law

NOTES ON
HUMAN RIGHTS LAW

For
9th Semester BBA LLB(Hons.)
Collaborated By on 01/06/2018
ANSU SARA MATHEW, ANUSREE S.V, EBIN EMERSON, ADITHYA RAGHUNADHAN,
VIGNESH R. ARYA LAKSHMI, ASHWIN MENON V. & AJAY RATNAN

9/5 BBA LLB(Hons.)
GOVERNMENT LAW COLLEGE, KOZHIKODE
CONTENTS
Title Page No.
MODULE 1 1-30
MODULE 2 31-52
MODULE 3 53-86
MODULE 4 87-117
MODULE 5 118-135
MODULE 6 136-141
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NOTES ON HUMAN RIGHTS LAW
Module 1
Human Rights – Nature and Sources – International Movements for Protection of Human
Rights – Universal Declaration of Human Rights – International Covenant on Civil and
Political Rights – Socio Economic and Cultural Rights.
NATURE AND MEANING
Human beings are born equal in dignity and rights. These are moral claims which are
inalienable and inherent in all individuals by virtue of their humanity alone, irrespective of
caste, colour, creed, and place of birth, sex, cultural difference or any other consideration.
These claims are articulated and formulated in what is today known as human rights. Human
rights are sometimes referred to as fundamental rights, basic rights, inherent rights, natural
rights and birth rights.
The concept of human right is based on the assumption that human beings are born equal in
dignity and rights. These are moral claims which are inalienable and inherent in all human
beings by virtue of the member of the humanity alone. Today these claims are articulated and
formulated and then called as human rights. All human beings are born free and equal in dignity
and rights. But man has made him not equal in many ways. Some were made privileged and
some were not. These rights have been designated to be universal in application, inalienable in
exercise and inherent to all persons. Human beings are entitled to some basic and natural rights
otherwise their life would be meaningless.
Definitions:
The term “Human”, according to the oxford dictionary, means Relating to or characteristic of
humankind. Human Being means a man, woman, or child of the species Homo sapiens,
distinguished from other animals by superior mental development, power of articulate speech,
and upright stance.
Rights are those essential conditions of social life without which no person can generally
realize his best self. These are the essential conditions for health of both the individual and his
society. It is only when people get and enjoy rights that they can develop their personalities
and contributes their best services to the society.
Human Rights are those minimal rights which are available to every human being without
distinction of language, religion, caste, nationality, sex, social and economic conditions of the
society. Human rights are on the increasing demands of the mankind for a life in which the
inherent dignity and worth of each human being will receive respect and protection. These
rights enable individuals to fully use their intelligence, talents and conscience to satisfy
spiritual and other needs.
Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every
individual must have against the State, or other public authority, by virtue of his being a
‘member of human family’ irrespective of any consideration.
Prepared by ANSU SARA MATHEW, ANUSREE S.V, EBIN EMERSON, ADITHYA RAGHUNADHAN, VIGNESH R.
ARYA LAKSHMI, ASHWIN MENON V. & AJAY RATNAN Page | 1
The United Nations Centre for Human Rights defines Human Rights as “those rights which are
inherent in our nature and without which we cannot live as human beings”
The Universal Declaration of Human Rights which adopted on Dec.10th 1948, defines human
rights as “rights derived from the inherent dignity of human person”
The Protection of Human Rights Act 1993 states” Human Right means rights relating to life
liberty, equality and dignity of the individuals guaranteed by the constitution or embodied in
the International Covenants and enforceable by courts in India.”
Human rights are referred as a fundamental rights, basic rights, inherent right, natural rights
and birth rights. Human rights are rights of exceptional importance and belong to every
individual by virtue of being a human. These rights are necessary to ensure the dignity of every
person as a human being irrespective of race, religion, language, caste, sex or any other reason.
The concept of Human right is based on the notion of equality of human being. The features of
human rights are they are universal incontrovertible and subjective.
Human rights are universal means they belong to each of us regardless of ethnicity, race,
gender, sexuality, age, religion, political conviction or type of government. They are
incontrovertible means they are absolute and innate. Human rights are subjective means they
are properties of individual subjects who possess them because of their capacity of rationality,
agency and autonomy. The notion of universality has been criticized for its blindness towards
the issues of cultural differences. When human rights are guaranteed by a written constitution
they are known as fundamental rights because a written constitution is the fundamental law of
the state.
IMPORTANCE OF HUMAN RIGHTS
Human rights are, in the first instance, moral rights and they derive their strength on ethical
grounds. Human rights are inconceivable without the primary right of freedom of thought and
expression which recognizes dignity and individuality of every human beings and derives its
justifiability from moral and ethical considerations It has been appreciated that without human
right, humanity cannot progress. That is why, over the past sixty years, the individual human
being has gradually acquired an increasing number of internationally recognized human rights
and obligations. During and at the time of the two World Wars, we witnessed the deprivation
of the human values and rights. However, after the Second World War, many nations became
independent and they could protect the rights and the liberty of the people. They legalized the
human rights by incorporating the provisions in the constitution and through proper legislation.
The UN Charter very clearly specified the importance of the human rights. The UN Charter
has declared that the purpose of United Nation is “to achieve international co-operation in
solving international problems of an economic, social, cultural and humanitarian character and
in promoting and encouraging respect for human rights and for fundamental freedom for all
without distinction as to race, sex, language or religion”. Universal Declaration of Human
Rights stated the importance of the human rights in Article 1, which declares, “All human
beings are born free and equal in dignity and rights”. The rights and freedom contained in the
declaration were regarded as being available to all without distinction of race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status.
Human Right s Conference called by the United Nations General Assembly in 1968 declared
that since human rights and fundamental freedoms are indivisible, the full realization of civil
and political rights without the enjoyment of economic, social and cultural rights is impossible.
The core of human right includes: - 1. The right to respect human right and dignity. 2. The
prohibition of selfdom, slavery, bonded labour and torture. 3. The protection from the arbitrary
deprivation of liberty 4. The prohibition of discrimination on racial, religious, linguistic or
similar reasons.
THEORIES OF HUMAN RIGHTS
As for as the nature of human rights is concerned, two main approaches, the philosophical and
pragmatic approach were adopted to explain the nature of human rights from time to time.
I. The Philosophical or Theoretical Approach:
The philosophical or theoretical approach has been categorized in five more theories to explain
the rights of man. These are:
a) The Natural Rights Theory: According to this theory the human rights are inherent in the
very nature of human being. Humans possess these rights because of the very fact that it is a
human, a whole, a master, a master of itself and of its acts by natural law. Therefore, the growth
of concept of the 'Rights of Man' has been closely associated with the traditional natural law
theories, as a matter of fact the notion of individual rights has never been projected as a special
feature in these theories, and law as such implies both duties and rights.
b) The legal Right Theory: According to this theory, the rights are the creation of state. As
such, they are neither absolute nor inherent in the nature of man. All rights such as right to life,
liberty or property are artificially created by the law of the land. These fundamental rights are
the right of self-preservation, which can be protected by state only in better manner than by
any other means/ This theory extended that these rights can be recognized by the state only for
its enforcement, and if state cannot recognize it, it cannot be enforced.
c) The Historical Theory of Rights: The historical theory maintains that the rights are the
creation of historical process. A long-standing custom in the course of time concretize in the
specific form of right.
d) The Social Welfare Theory of Rights: This theory is also known as the Social Expediency
theory. The advocates of this theory are of the opinion that law, custom and natural rights all
are conditioned by social expediency.
e) The Idealistic Theory of Rights; The idealistic theory of rights is also known as personality
theory of rights. This theory insists on the inner developments of man, on the development of
his full potentiality. Hence, it treats rights of personality as a supreme and absolute right.
According to this theory all other rights have been denied from right of personality and are
conditioned by it.
II. Pragmatic Approach:

Besides, philosophical or theoretical approach, another way to look at the meaning and nature
of human rights is pragmatism. Every right whether perceived as inalienable or otherwise can
have validity and effectiveness only through some process or institution. Thus, it cannot be
defined without reference to some institutional structure. As a room cannot be defined without
reference to the walls. So Human Rights cannot be defined without reference to institutional
settings, therefore, it is important that there exists an internally agreed upon catalogue of human
rights, which should be minimal definitional guide to understand the essence of human rights
and fundamental freedom.
SOURCES OF HUMAN RIGHTS LAW
Since time immemorial, states and peoples have entered into formal relationships with each
other. Over the ages, traditions have developed on how such relationships are conducted. These
are the traditions that make up modern ‘international law’. Like domestic law, international
law covers a wide range of subjects such as security, diplomatic relations, trade, culture and
human rights, but it differs from domestic legal systems in a number of important ways. In
international law there is no single legislature, nor is there a single enforcing institution.
Consequently, international law can only be established with the consent of states and is
primarily dependent on self-enforcement by the same states. In cases of non-compliance there
is no supra-national institution; enforcement can only take place by means of individual or
collective actions of other states.
This consent, from which the rules of international law are derived, may be expressed in various
ways. The obvious mode is an explicit treaty, imposing obligations on the states parties. Such
‘treaty law’ constitutes a dominant part of modern international law. Besides treaties, other
documents and agreements serve as guidelines for the behaviour of states, although they may
not be legally binding. Consent may also be inferred from established and consistent practice
of states in conducting their relationships with each other. The sources of international law are
many and states commit to them to different degrees. The internationally accepted
classification of sources of international law is formulated in Article 38 of the Statute of the
International Court of Justice. Forming one of the regimes of international law, human rights
law has the same source with the former.
A. International conventions, whether general or particular;
B. International custom, as evidence of general practice accepted as law;
C. The general principles of law recognised by civilised nations;
D. Subsidiary means for the determination of rules of law such as judicial decisions and
teachings of the most highly qualified publicists.
A. International Conventions
International treaties are contracts signed between states. They are legally binding and impose
mutual obligations on the states that are party to any particular treaty (states parties). The main
particularity of human rights treaties is that they impose obligations on states about the manner
in which they treat all individuals within their jurisdiction. Even though the sources of
international law are not hierarchical, treaties have some degree of primacy. Nowadays, more
than forty major international conventions for the protection of human rights have been
adopted. International human rights treaties bear various titles, including ‘covenant’,
‘convention’ and ‘protocol’; but what they have in common are the explicit indication of states
parties to be bound by their terms. Human rights treaties have been adopted at the universal
level (within the framework of the United Nations and its specialised agencies, for instance,
the ILO and UNESCO) as well as under the auspices of regional organisations, such as the
Council of Europe (COE), the Organisation of American States (OAS) and the African Union
(AU) (formerly the Organisation of African Unity (OAU)). These organisations have greatly
contributed to the codification of a comprehensive and consistent body of human rights law.
Universal Conventions for the protection of Human Rights
Human rights had already found expression in the Covenant of the League of Nations, which
led, inter alia, to the creation of the International Labour Organisation. At the San Francisco
Conference in 1945, held to draft the Charter of the United Nations, a proposal to adopt a
‘Declaration on the Essential Rights of Man’ was put forward but was not examined because
it required more detailed consideration than was possible at the time. Nonetheless, the UN
Charter clearly speaks of ‘promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language or religion’ (Article
1, para. 3). The idea of promulgating an ‘international bill of rights’ was developed
immediately afterwards and led to the adoption in 1948 of the Universal Declaration of Human
Rights (UDHR).
The UDHR, adopted by a resolution of the United Nations General Assembly (UNGA),
although not a treaty, is the earliest comprehensive human rights instrument adopted by the
international community. On the same may that it adopted the Universal Declaration, the
UNGA requested the UN Commission on Human Rights to prepare, as a matter of priority, a
legally binding human rights convention. Wide differences in economic and social
philosophies hampered efforts to achieve agreement on a single instrument, but in 1954 two
draft conventions were completed and submitted to the UNGA for consideration. Twelve years
later, in 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR)
and the International Covenant on Civil and Political Rights (ICCPR) were adopted, as well as
the First Optional Protocol to the ICCPR, which established an individual complaints
procedure. Both Covenants and the Optional Protocol entered into force in 1976. A Second
Optional Protocol to the ICCPR, on the abolition of the death penalty, was adopted in 1989 and
entered into force in 1991.
The ‘International Bill of Human Rights’ consists of the Universal Declaration of Human
Rights, the ICESCR, and the ICCPR and its two Optional Protocols. The International Bill of
Rights is the basis for numerous conventions and national constitutions. Besides the
International Bill of Human Rights, a number of other instruments have been adopted under
the auspices of the UN and other international agencies. They may be divided into three groups:
a) Conventions elaborating on certain rights, inter alia:
The Convention on the Prevention and Punishment of the Crime of Genocide (1948)
ILO 98 concerning the Right to Organise and to Bargain Collectively (1949)

b) Conventions dealing with certain categories of persons who may need special
protection, inter alia:
The Convention relating to the Status of Refugees (1951), and the 1967 Protocol thereto
The Convention on the Rights of the Child (1989) Optional Protocol to the Convention on the
Rights of the Child on the involvement of children in armed conflicts (2000)
The International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (2000)
c) Conventions seeking to eliminate discrimination
ILO 111 concerning Discrimination in respect of Employment and Occupation (1958)
UNESCO Convention against Discrimination in Education (1960)
The International Convention on the Elimination of All Forms of Racial Discrimination (1965)
International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)
The Convention on the Elimination of All Forms of Discrimination against Women (1979) and
its Optional Protocol (2000)
The UN Charter encourages the adoption of regional instruments for the establishment of
human rights obligations, many of which have been of crucial importance for the development
of international human rights law. The Council of Europe adopted in 1950 the European
Convention for the Protection of Human Rights and Fundamental Freedoms, supplemented by
the European Social Charter in 1961, the European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment in 1987, and the Framework Convention
on National Minorities in 1994.
The American Convention on Human Rights was adopted in 1969, under the auspices of the
Organisation of American States. This Convention has been complemented by two protocols,
the 1988 Protocol of San Salvador on Economic, Social, and Cultural Rights and the 1990
Protocol to Abolish the Death Penalty. Other Inter-American Conventions include the
Convention to Prevent and Punish Torture (1985), the Convention on the Forced
Disappearances of Persons (1994), and the Convention on the Prevention, Punishment and
Eradication of Violence against Women (1995).
In 1981, the Organisation of African Unity, now the African Union, adopted the African
Charter on Human and Peoples’ Rights. Two protocols to the Charter have been adopted: the
Additional Protocol on the Establishment of the African Court on Human and Peoples’ Rights
(1998), and the Protocol on the Rights of Women in Africa (2003). Other African instruments
include the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969),
and the African Charter on the Rights and Welfare of the Child (1990).
B. International custom
Customary international law plays a crucial role in international human rights law. The Statute
of the International Court of Justice refers to ‘general practice accepted as law’. In order to
become international customary law, the ‘general practice’ needs to represent a broad
consensus in terms of content and applicability, deriving from a sense that the practice is
obligatory (opinio juris et necessitatis). Customary law is binding on all states (except those
that may have objected to it during its formation), whether or not they have ratified any relevant
treaty. One of the important features of customary international law is that customary law may,
under certain circumstances, lead to universal jurisdiction or application, so that any national
court may hear extra-territorial claims brought under international law. In addition, there also
exists a class of customary international law, jus cogens, or peremptory norms of general
international law, which are norms accepted and recognised by the international community of
states as a whole as norms from which no derogation is permitted. Under the Vienna
Convention on the Law of Treaties (VCLT) any treaty which conflicts with a peremptory norm
is void. Many scholars argue that some standards laid down in the Universal Declaration of
Human Rights (which in formal terms is only a resolution of the UNGA and as such not legally
binding) have become part of customary international law as a result of subsequent practice;
therefore, they would be binding upon all states. Within the realm of human rights law, the
distinction between concepts of customary law, treaty law, and general principles of law are
often unclear.
C. General principles of law
In the application of both national and international law, general or guiding principles are used.
In international law, they have been defined as ‘logical propositions resulting from judicial
reasoning on the basis of existing pieces of international law’. At the international level, general
principles of law occupy an important place in case-law regarding human rights. A clear
example is the principle of proportionality, which is important for human rights supervisory
mechanisms in assessing whether interference with a human right may be justified. Why are
general principles used? No legislation is able to provide answers to every question and to
every possible situation that arises. Therefore, rules of law or principles that enable decision-
makers and members of the executive and judicial branches to decide on the issues before them
are needed. General principles of law play two important roles: on the one hand, they provide
guidelines for judges, in particular, in deciding in individual cases; on the other hand, they limit
the discretionary power of judges and of members of the executive in their decisions in
individual cases.
D. Subsidiary means for the determination of rules of law
According to Article 38 of the Statute of the International Court of Justice, judicial decisions
and the teachings of the most qualified publicists are ‘subsidiary means for the determination
of rules of law’. Therefore, they are not, strictly speaking, formal sources, but they are regarded
as evidence of the state of the law. As for the judicial decisions, Article 38 of the Statute of the
International Court is not confined to international decisions (such as the judgements of the
International Court of Justice, the Inter-American Court, the European Court and the future
African Court on Human Rights); decisions of national tribunals relating to human rights are
also subsidiary sources of law. The writings of scholars contribute to the development and
analysis of human rights law. Compared to the formal standard setting of international organs
the impact is indirect. Nevertheless, influential contributions have been made by scholars and
experts working in human rights fora, for instance, in the UN Sub-Commission on the
Promotion and Protection of Human Rights, as well as by highly regarded NGOs, such as
Amnesty International and the International Commission of Jurists.
HISTORICAL PERSPECTIVES AND DEVELOPMENT OF HUMAN RIGHTS

&
INTERNATIONAL MOVEMENT FOR PROTECTION OF HUMAN RIGHTS
There is no clear-cut theory regarding the origin of human right. There exist different
viewpoints regarding the origin of human right. Some scholars trace the origin of human rights
to religious tradition. Another argument is that human right is highly indebted to the
enlightenment. The necessary condition for enlightenment, which combined to bring an end to
the middle ages in Europe, includes scientific revolution, rise of mercantilism, launching of
maritime exploration of the globe, the consolidation of the nation states and emergence of
middle class. All these contributed the development of human rights. It is also said that the
roots of the rights can be traced in the Babylonian Law. Babylonian king Hammurabi issued a
set of laws called Hammurabi’s code. In India the drama of Vedic period created the moral
basis for human rights. Human rights are also based on the concept of Natural Law and Natural
rights.
The origin of the concept of natural law can be traced to the stoics. Stoic thinkers postulated a
cosmopolitan philosophy, guided by the principle of equality of all men and universal
application of natural law based on reason. In the evolution of human rights this concept of
natural law played a prominent role. Cicero was the strong supporter of the stoic theory of
natural law. Romans applied the stoic concept of natural law in the formation of body of legal
rules for the administration of justice. They developed this body of rules on the basis of customs
and by the application of reason.
The concept of human right was conspicuous in ancient Greece and in India. The ancient Kings
in India cared for the welfare of the people. The rights of people are mainly recognized and
protected by moral and spiritual dictated and the whole thing got derived from natural law
which was the ruling law. In the evolution of human rights, the modern school of natural law,
led by Hugo Grotius made great contributions. He made natural law and that natural law theory
got transformed into the natural rights theory.
Natural Rights Theory
Proponents of natural rights explained that natural rights are rights belonging to a person by
nature and because he was a human being, not by virtue of his citizenship in a particular country
or membership in a particular religious or ethnic group. Thomas Hobbes (1588- 1679), John
Locke (1632-1704), Jean Jacques Rousseau (1712-1778) are the three main thinkers who
developed the natural rights theory. John Locke who urged that certain rights are ‘natural’ to
individuals as human beings, having existed even in the ‘state of nature’ before the
development of the societies and emergence of the state. Rousseau is regarded as the greatest
master of Natural Law School. He proclaimed that men are bestowed with inalienable rights of
liberty, equality and fraternity. His concepts became the basis for the French Declaration of the
Rights of Man and of the citizen. The American Independence Movement of 1776 and the
French Revolution of 1789 were inspired by the ideal of natural rights and both movements
were sought to challenge governments that curtailed the natural rights of the people. In addition
to the contributions of the above three thinkers, we may make a mention of Thomas Paine
(1731-1809). Thomas Paine, an American revolutionary thinker developed the doctrine of
natural rights without linking it to Rousseau’s social contract theory. He held that rights are
natural because they were bestowed upon man by God himself.
Development of Human Rights
The human rights which we are enjoying today is developed though varies stages. The
important landmarks in the development of human rights are the following documents and
struggles:
1. Cyrus Cylinder
1. Magna Carta of 1215
2. Influence of Social Contract Theory
3. English Bill of Rights of 1689
4. American Declaration of Independence of 1776
5. American Bill of Rights of 1791
6. French Declaration of the Rights of Man of 1789
7. The Bolshevik Revolution of Russia of 1917
8. Universal Declaration of Human Rights of 1948
9. International Covenants on Human rights.
Cyrus Cylinder (c539-530BC)
Cyrus II, King of Persia, began his reign by decreeing reforms on this clay cylinder. Most
notably, he declared that exiled slaves could return to their homelands and implies that there
will be religious freedom throughout the Persian Empire.
The Cylinder gained new prominence in the late 1960s when the last Shah of Iran called it "the
world's first charter of human rights". The cylinder was a key symbol of the Shah's political
ideology and is still regarded by some commentators as a charter of human rights, despite the
disagreement of some historians and scholars.
Magna Carta (1215)
The Magna Carta is considered as the first charter of liberty. It was signed by the king John of
England in 1215. The main theme of the Magna Carta was protection against the arbitrary acts
of the king. The 63 clauses of the charter guaranteed certain basic civil and legal rights to
citizens and protected the barons from unjust taxes. The king was compelled to grant the
charter, because the barons refused to pay heavy taxes unless the king signed the charter. In
reality, the Magna Carta was merely a compromise of the distribution of powers between king
and his nobles. It gave certain concessions (not rights as we understand them today), to clergy,
landlords and nobles and consequently restricted the powers of the king to the extent of those
concessions were concerned.
Influence of Social contract theory
The doctrine of social contract was closely linked with the theory of natural law because the
basis upon which the natural law theories were formulated was the same for the social contract
also. These doctrines became popular during 16th and 17th century through the writings of
Thomas Hobbes, John Locke, and Jean Jacques Rousseau. Thomas Hobbes wrote his book
Leviathan in 1651.
According to Hobbes man entered into social contract and put the natural state to end. This
contract led to the creation of common wealth or state. And the ruler was also the outcome of
that contract. Since the ruler did not take part in the contract he was not bound to observe the
conditions of the contract. After the contract the civil society came in to existence. According
to Hobbes, the people surrounded all their power to the king through the contract, except the
right of self- preservation Hobbes was an exponent of absolute monarchy. John Locke wrote
two books. They are ‘Essays Concerning Human Nature’ and ‘Essays on civil government’.
According to Locke, man entered into two contracts that is social and political. The social
contract led to the creation of the society and the political contract led to the formation of the
government. Locke believed that people did not transfer all their rights to the king through the
contract. The king was given only the right to life, the right to property and the right to security.
So, the king is only trustee. The people reserve the right to dethrone the king if he fails to
safeguard the security of the people. Rousseau wrote the book ‘the Social Contract’.
According to Rousseau, people transferred all their rights to society and put the natural order
to an end. Rousseau regarded the real will of the society as the General Will. He considered
General Will as sovereign. This General Will forms the basis of government. Rousseau
regarded government is an institution functioning under the General Will of the people.
The English Bill of Rights (1689)
This English document set out political and civil rights, including the freedom to elect Members
of Parliament, the protection of free speech in Parliament and that the king or queen could not
interfere with the law.
The English Bill of Rights declared that the king has no overriding authority. Principles like
Limited monarchy and parliamentary supremacy etc. was declared during that period. The Bill
of Rights states that: - 2. The king should not exercise suspending or dispending power; 3. No
standing Army should be maintained without the consent of the parliament; 4. No taxation
without the consent of the parliament; 5. Parliament is the sole authority to decide who should
rule England; 6. The people should have the right to send petition to the king; 7. Annual grants
were to be given to the king by the parliament; 8. Arbitrary courts are to be abolished; 9.
Parliament was to be freely elected and the members were to have freedom of speech. The
toleration Act passed by the parliament granted religious freedom to the people.
The French Declaration of the Rights of Man and of the Citizen (1789)
This French Declaration set out the universal and inalienable rights of men/citizens (not women
unfortunately!) It stated that all are born equal and free, all can participate in civil and political
life, can think and speak freely, be presumed innocent until proven guilty and that all have the
right to own private property.
The Declaration of the Rights of Man was a product of French Revolution. The slogan of the
revolution was liberty, equality and fraternity. The French revolution gave a fatal blow to
absolute monarchy and a death blow to feudalism and led to the establishment of French
Republic. All the special privileges were abolished and the society came to be organized on the
basis of equality. On 17th august 1789, the National Assembly proclaimed the Rights of Man
and of the Citizens. These rights were formulated in 17 articles. It declared that ‘’’Men are born
free and equal in rights….” The aim of all political association is to preserve the natural rights
of man. These rights are liberty, property, security and resistance to oppression. The
recognition of universality of these rights was the turning point in the evolution of human
rights. The following rights man and citizen have been recognized, among others, in the French
declaration.
American Declaration of Independence
America was the colony of Britain. There were 13 colonies in America. These colonies were
revolted against England for their independence. The main reason for the revolt was that the
British government was of the view that the colonies also should share in the expenses incurred
in their administration. With this view the British government started to take various regulatory
measures under which it introduced certain new taxes. This resulted into militant opposition by
the American people. They argued that, since they did not have their representatives in British
parliament, it had no right to impose taxes upon them. ‘No taxation without representation’
was the main slogan during that period. The state declared independence in 1776. The
Declaration of Independence was done on July 4th 1776. This famous document was drafted
by Thomas Jefferson. Americans made their claim for independence on the basis of inalienable
rights of men, popular sovereignty and the right of revolution, but at the time of drafting the
constitution in 1787 they did not include the bill of rights in the constitution. They did it in
1791by adopting ten amendments to the constitution. These amendments are known as Bill of
Rights and form part of their constitution.
US Bill of Rights
The first ten amendments of the American constitution constitute the American Bill of rights.
James Madison proposed as many as twelve amendments in the form of a Bill of Rights in
1791. Ten of these were ratified by the State legislatures. These ten constitutional amendments
came to be known as the Bill of Rights in America. The constitutional settlements in the US
and the attached Bill of Rights provided a model for the protection of human rights. After 1791
many other amendments were also made in the constitution of America. Followings are the
important amendments: - The first amendment provides freedom of religion, freedom of press,
freedom of expression and the rights of assembly. The fourth amendment provides protection
of individual against unreasonable search and seizure. The fifth establishes the rue against the
self-incrimination and the right to due process of law.
The Russian Revolution
The Russian was the greatest social uprising of the world since the French Revolution. Russian
revolution took place in 1917. It was the first successful communist revolution of the world.
The revolt was against the naked exploitation of the masses by the autocratic ruler and the
wealthy feudal nobles. The revolution brought a though change in the political, social and
economic life of the people and established the first proletariat government of the world. H.G.
Wells concerned it as “the greatest event after the advent of Islam”.
The Bolshevik Revolution in Russia (1917) went a step further. It emphasized that economic
and social rights were as important as the civil and political rights. Many economic and social
rights had been included in the soviet constitution. It is gratifying to note that the socialist
revolution in Russia introduced socio-economic dimensions to the concept of rights, which
were neglected in the events and documents of English, American and French revolutions.
While the three revolutions emphasized the first generation (civil and political) rights, the
October Revolution of Russia popularized socio- economic rights; such as right to work, social
security, protection of the family, right to adequate standard of living, right to education, health
and right to join trade unions. These are second generation rights or positive rights.
The formation of League of Nations and ILO
The League of Nation was not mentioned about the provisions of human rights. But the ILO,
which was formed in 1919, was an organization, worked for maintain justice and rights. The
standards determining the conditions of industrial workers, established in the beginning of the
twentieth century, became the subject of further international agreements, elaborated by
International Labour Organization. It promoted the conditions of the workers, internationally.
Later on, it became an important specialized agency under the UN
Adoption of Universal Declaration of Human Rights
The Universal Declaration of Human Rights(UDHR) was adopted by the General Assembly of
the United Nation on 10th December 1948.The declaration is not a legally binding document;
It is an ideal for all mankind. In the words of Eleanor Roosevelt, it proclaims “a common
standard of achievement for all people and all nations”. In its final form, it comprises of alert
of civil, political, economic, social and cultural rights to which all persons are entitled.
Universal Declaration is a declaration of principles directed to the peoples of the world. This
has been considered as one of the greatest achievements of the UN. It has been maintained that
“the Universal Declaration of Human Rights has had a significant influence on the development
of standards that states are not only respected but also has legal commitment to be respected”.
Classification of Human Rights
Human rights are generally classified into three. They are;

1. The First-Generation rights
2. The Second-Generation Rights
3. The Third-Generation rights
Some Human Rights have evolved and developed as a reaction to oppressive institutions,
policies and practices of the rulers. These are the first-generation rights. The second and third
generation rights are concerned to be responses to the economic and political oppression that
was the by-product of colonialism and industrial capitalism.
Karel Vasek, a former director of Human Rights and Peace Division of the UNESCO was the
major proponent of the classification of rights in to three generations. He stated that civil and
political rights constitute the first-generation rights. Social, economic and cultural rights
constitute the second-generation rights. The group rights, such as the right to development and
environmental rights formed the third generation of rights.
The first-generation rights i.e. civil and political rights provide for certain basic Rights
guarantees for an individual in relation to state; they involve the inviolability of the individual
against any invasive action by the state. These are distinct from second generation rights, which
generally require action by the state to provide certain basic needs or amenities to the
individual. In other words, civil and political rights demand freedom from coercive action by
the state against an individual; while economic, social and cultural rights necessitate certain
actions and provisions by the state in order for it to fulfil its obligations. First generation
articles are included in the Articles 3to 21 of the UDHR while Article 22 to27 deal with
second generation rights. Demands have come from some developing countries to focus on
some group rights, as it is claimed that their societies are less individualistic than western
countries. Consequently, third generation rights have been developed to provide for the relation
between individuals and the state.
Third generation Rights include: the right to self-determination, right to development, right to
participate in and benefit from the common heritage of mankind and the right to a healthy
environment; amongst many other collective rights. Civil and political rights cannot be enjoyed
in the absence of basic social economic and cultural rights. The interdependence of the rights
must be acknowledged and provided for so as to ensure a better life. In short, we can say that
first generation rights are related to liberty; second generation rights to equality; and third
generation rights are related to fraternity.
The World Conference on Human Rights of1993, proclaimed the Vienna Declaration and
Programme of Action. That declaration asserted that ‘all human rights are universal,
indivisible, interdependent, and inter-related. The declaration also stated that human rights and
fundamental freedom would have to be respected and promoted by all states irrespective of
their political, economic and cultural systems. In the international level, under the initiatives of
the UN different Covenants were signed to maintain the different categories of rights. They
are: -
The International Covenant on Civil and Political Right
The UN prepared International Covenant on Civil and Political Right in1966, contains a lot of
civil and political rights. The various rights contained in this covenant are, mainly civil and
political rights, which are not new rights. These are the rights that had; developed in course of
a long period of time since the time of Greek city states and concretized in the form of Magna
Carta of 1215, the Bill of Rights of the American Declaration of Independence and the French
Declaration of the rights of man and of the citizen. These rights were also included in the
European Convention on Human Rights and in Inter- American and African instruments. It
also manifested in the constitutions of many countries.
The International Covenant on Economic Social and Cultural Rights
The international covenant on economic social and cultural rights signed in 1966. These are
Second Generation rights. As the main source of the origin of the civil and political rights is
considered to be the American and French revolution so economic and social rights are
considered to be originated in the Russian Revolution of 1917and in the Paris peace conference
of 1919.
Collective Rights –Third Generation Human Rights
Louis B Sohn has argued that individuals are also members of such units groups or
communities as a family, religious community, social club trade union, professional
association, racial group, people, nation and state. Therefore, that international law not only
recognizes inalienable rights of individuals but also recognize certain collective rights
exercised jointly by individuals who are grouped in to larger communities including people
and nation Karek Vasak says the collective rights can be realized only “through the concerted
efforts of all the actors on the social scene; the individual, the state, public and private bodies
and the international community”. The effective exercise of collective rights is precondition to
the exercise of other rights political or economies or both. The most cherished belonging to the
third-generation rights are the right to self-determination, the right to development and right to
peace.
INTERNATIONAL BILL OF HUMAN RIGHTS
The International Bill of Human Rights was the name given to UN General Assembly
Resolution 217 (III) and two international treaties established by the United Nations. It consists
of the Universal Declaration of Human Rights (adopted in 1948), the International Covenant
on Civil and Political Rights (ICCPR, 1966) with its two Optional Protocols and
the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966). The two
covenants entered into force in 1976, after a sufficient number of countries had ratified them.
In the beginning, different views were expressed about the form the bill of rights should take.
In 1948, General Assembly planned the bill to include UDHR, one Covenant and measures of
implementation. The Drafting Committee decided to prepare two documents: one in the form
of a declaration, which would set forth general principles or standards of human rights; the
other in the form of a convention, which would define specific rights and their limitations.
Accordingly, the Committee transmitted to the Commission on Human Rights draft articles of
an international declaration and an international convention on human rights. At its second
session, in December 1947, the Commission decided to apply the term "International Bill of
Human Rights" to the series of documents in preparation and established three working groups:
one on the declaration, one on the convention (which it renamed "covenant") and one on
implementation. The Commission revised the draft declaration at its third session, in May/June
1948, taking into consideration comments received from Governments. It did not have time,
however, to consider the covenant or the question of implementation. The declaration was
therefore submitted through the United Nations Economic and Social Council to the General
Assembly, meeting in Paris.
Later the draft covenant was divided in two (decided by the General Assembly in 1952),
differing with both catalogue of rights and degree of obligations – for example, the ICESCR
refers to the "progressive realisation" of the rights it contains. In 1998 it was hailed as
"A Magna Carta for all humanity".
UNIVERSAL DECLARATION OF THE HUMAN RIGHTS
In 1946, the United Nations established a commission on human rights which started the work
on an international bill of rights –consisting of a universal declaration of human rights and the
two covenants and protocols. In the first stage of this programme, during 1946- 1948, drafted
and recommend to the General Assembly, the Universal Declaration of Human Rights which
was unanimously adopted by it on 10th December 1948.
The declaration was proclaimed “as a common standard of achievement for all peoples and all
nations” (even those which were not UN members) and was accepted as a unanimous
interpretation of the Charter by the most authoritative UN organ, the General Assembly. It
catalogued almost all-important rights, civil and political and economic, social and cultural
rights-which were not defined in the year charter. Though it is a non-binding instrument, it has
acquired moral and legal status. It is recognized in international law as customary law.
The preamble of the declaration pointed out its significant feature. It states that the individual,
not the state or the government, is “the foundation of freedom, justice and peace in the world”.
The universal declaration inspired three regional human rights commissions.
The council of Europe adopted a European Convention on Human Rights in 1950 by which it
established the European commission and Court of Human Rights. In 1969, the Organization
of American States adopted a similar convention of human rights and the Organization of
African Unity (now African Union) adopted in 1981, the African charter on human and
people’s rights. The declaration has been translated into nearly 360 local and regional
languages. The declaration is the best known and the most sited human rights document in the
world. The Universal Declaration of Human Rights stands as a common standard of
achievement where all people’s or all nations, to the end that every individual and every organ
of society keeping this declaration constantly in mind, shall strive by teaching and education
to promote respect for these rights and the freedom and by progressive measures, national and
international , to secure their universal and effective recognition and observance , both among
the peoples of member states themselves and among the peoples of territories under their
jurisdiction.
The Universal Declaration of Human Rights consists of a Preamble and 30 articles. The
declaration set forth the human rights and fundamental freedom to which all men and women
without distinction everywhere in the world are entitled. Article 1 of UDHR, lays down the
philosophy upon which the declaration is based. It reads “All human beings are born free and
equal in dignity and rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood”. The Universal Declaration was adopted by the
UN General Assembly on 10th December 1948. The adoption of such a declaration was an
historic event and one of the greatest achievements of the UN. Now the people all over the
world celebrate the human right day on every year the 10th December.
Importance of the declaration

1. The Declaration of human Right was the first of its kind in the history of International
organization.
2. The declaration became one of the most remarkable developments in the law of nations
3. The declaration acquired a political and moral authority.
4. The declaration has exercised profound influence on the constitution of new nations and
regional agreements
5. The Indian constitution was also greatly influenced by the UDHR
A Critical Appraisal
The important criticism levelled against UDHR are briefly described below
1. UDHR is highly individualistic in nature. Every right included in the UDHR is supposed to
be addressing an individual human being. It reduces the role of society in shaping the self and
rights of the individual and also reduces the role of the state in bestowing the individual citizens
with certain positive entitlements.
2. The UDHR was criticized as a replica of the American Bill of Rights because of its supports
to the liberal democratic idea of human rights which was not sufficient to satisfy the vision of
communist countries about human rights
3. The importance given to the civil-political rights over the socio-economic rights was
considered as an agenda popularized the liberal democratic vision of human rights at the
international level during and after the cold war.
4. The human rights in the UDHR completely neglected the minority rights in the opinion of
communitarians
5. Feminist scholars criticize that, it hardly gives any sufficient space for the rights of women
and gender issues
6. The cold war politics was evident in the making of the UDHR
7. The Euro-centric nature of Human Rights has been criticized by the orient from an eastern
perspective against west. It led to the argument that the UDHR was aiming at the westernization
of the agenda of human rights in the international politics.
8. There is also a criticism that there is an acute shortage of legal mechanism and institutional
apparatus to ensure the enforceability of rights given to all in the international politics. In other
words, the UDHR has no force of law.
UDHR RELATED CASE LAWS/ JUDICIAL ATTITUDE
Satwant Singh Sawhney v. Asst. Passport Officer, Government of India the Supreme Court
held that in the light of the Universal Declaration stating “Everyone has the right to leave any
country including his own”, the Right was available only to normal citizens i.e. it was not
available and not applicable to criminals avoiding penalties or political agitators etc., likely to
create International tension or to persons who may disgrace our country abroad. The case,
which was concerned with the issue of right to movement, the Hon’ble Supreme Court held
that as under the Universal declaration of human rights, "Everyone has the right to leave any
country including his own" and it being applicable to normal persons did does not apply to
criminals avoiding penalties or political agitators, etc. likely to create international tensions or
persons who may disgrace our country abroad.
The landmark case of Kesavananda Bharati Sripadagalvaru v. State of Kerala, with the
text of the judgement running in hundreds, an important aspect of human rights was involved.
The Court took into consideration, that while our fundamental rights and directive principles
were being fashioned and approved of by the Constituent Assembly, on December 10, 1948,
the General Assembly of the United Nations adopted a Universal Declaration of Human Rights
and though the Declaration was not being a legally binding instrument but an authority to show
how India understood the nature of Human Rights.
The Court also considered the argument of Mr. Palkhivala, who contended that apart from
Article 13(2) fundamental rights were based on Universal Declaration of Human Rights and
being natural rights, were outside the scope of amendment. On this basis and on comparison of
the position of the Fundamental Rights in the Indian Constitution, the Court propounded the
theory of basic structure and came to hold that the Fundamental rights were also a part of the
basic structure and being as such was thus being inviolable and could not be curtailed by any
amendment what so ever.
In the judgement given in the Chairman, Railway Board and others v. Mrs.Chandrima as,
the Supreme Court observed that the Declaration has the international recognition as the Moral
Code of Conduct having been adopted by the General Assembly of the United Nations. The
applicability of the Universal Declaration of Human Rights and principles thereof may have to
be read, if need be, into the domestic jurisprudence.
Recently in Justice K. Puttuswamy vs. Union of India, the nine judge Constitutional bench
also recognized the significance of UDHR and found that the declaration very righty guides in
comprehending the principles of Right to Privacy.
The International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on Civil and Political Rights (ICCPR) is a

multilateral treaty adopted by the United Nations General Assembly with resolution 2200A
(XXI) on 19 December 1966, and in force from 23 March 1976 in accordance with Article 49
of the covenant. Article 49 allowed that the covenant will enter into force three months after
the date of the deposit of the thirty-fifth instrument of ratification or accession. The covenant
commits its parties to respect the civil and political rights of individuals, including the right to
life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights
to due process and a fair trial. As of February 2017, the Covenant has 169 parties and six more
signatories without ratification.
The ICCPR is part of the International Bill of Human Rights, along with the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration
of Human Rights (UDHR).
The ICCPR is monitored by the United Nations Human Rights Committee (a separate body to
the United Nations Human Rights Council), which reviews regular reports of States parties on
how the rights are being implemented. States must report initially one year after acceding to
the Covenant and then whenever the Committee requests (usually every four years). The
Committee normally meets in Geneva and normally holds three sessions per year.
History
The ICCPR has its roots in the same process that led to the Universal Declaration of Human
Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San
Francisco Conference which led to the founding of the United Nations, and the Economic and
Social Council was given the task of drafting it. Early on in the process, the document was split
into a declaration setting forth general principles of human rights, and a convention or covenant
containing binding commitments. The former evolved into the UDHR and was adopted on 10
December 1948.
The States Parties to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall promote the realization of
the right of self-determination, and shall respect that right, in conformity with the provisions
of the Charter of the United Nations.
Drafting continued on the convention, but there remained significant differences between UN
members on the relative importance of negative Civil and Political versus positive Economic,
Social and Cultural rights. These eventually caused the convention to be split into two separate
covenants, "one to contain civil and political rights and the other to contain economic, social
and cultural rights." The two covenants were to contain as many similar provisions as possible
and be opened for signature simultaneously. Each would also contain an article on the right of
all peoples to self-determination.
The first document became the International Covenant on Civil and Political Rights and the
second the International Covenant on Economic, Social and Cultural Rights. The drafts were
presented to the UN General Assembly for discussion in 1954 and adopted in 1966. As a result
of diplomatic negotiations the International Covenant on Economic, Social and Cultural Rights
was adopted shortly before the International Covenant on Civil and Political Rights. Together,
the UDHR and the two Covenants are considered to be the foundational human rights texts in
the contemporary international system of human rights.
Content:
The unifying themes and values of the ICCPR are found in Articles 2 and 3 and are based on
the notion of non-discrimination. Article 2 ensures that rights recognized in the ICCPR will be
respected and be available to everyone within the territory of those states who have ratified the
Covenant (State Party). Article 3 ensures the equal right of both men and women to the
enjoyment of all civil and political rights set out in the ICCPR. The rights protected under the
ICCPR include:
The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three
articles, divided into six 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 recognises 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) obliges parties to legislate where necessary to give effect to the rights
recognised in the Covenant, and to provide an effective legal remedy for any violation of those
rights. It also requires the rights be recognised "without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status," and to ensure that they are enjoyed equally by women. The rights can
only be limited "in time of public emergency which threatens the life of the nation," and even
then no derogation is permitted from the rights to life, freedom from torture and slavery, the
freedom from retrospective law, the right to personhood, and freedom of
thought, conscience and religion.
Part 3 (Articles 6 – 27) lists the rights themselves. These include rights to:
• physical integrity, in the form of the right to life and freedom from torture and slavery
(Articles 6, 7, and 8);
• liberty and security of the person, in the form of freedom from arbitrary arrest and
detention and the right to habeas corpus (Articles 9 – 11);
• procedural fairness in law, in the form of rights to due process, a fair and impartial trial,
the presumption of innocence, and recognition as a person before the law (Articles 14, 15,
and 16);
• individual liberty, in the form of the freedoms of movement, thought, conscience and
religion, speech, association and assembly, family rights, the right to a nationality, and
the right to privacy (Articles 12, 13, 17 – 24);
• prohibition of any propaganda for war as well as any advocacy of national or religious
hatred that constitutes incitement to discrimination, hostility or violence by law (Article
20);
• political participation, including the right to the right to vote (Article 25);
• Non-discrimination, minority rights and equality before the law (Articles 26 and 27).
Many of these rights include specific actions which must be undertaken to realise them.
Part 4 (Articles 28 – 45) governs the establishment and operation of the Human Rights
Committee and the reporting and monitoring of the Covenant. It also allows parties to recognise
the competence of the Committee to resolve disputes between parties on the implementation
of the Covenant (Articles 41 and 42).
Part 5 (Articles 46 – 47) clarifies that the Covenant shall not be interpreted as interfering with
the operation of the United Nations or "the inherent right of all peoples to enjoy and utilize
fully and freely their natural wealth and resources".[19]
Part 6 (Articles 48 – 53) governs ratification, entry into force, and amendment of the
Covenant.
Limitations:
Article 4 of ICCPR allows for certain circumstances for States Parties to derogate from their
responsibilities under the Covenant, such as during times of public emergencies. However,
State Parties may not derogate from Articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18.
Optional Protocols:
There are two optional protocols to the ICCPR which gives additional human rights
protections.
First Optional Protocol:

This protocol allows victims claiming to be victims of human rights violations to be heard. The
Human Rights Committee (Committee), which is established by the Covenant, has the
jurisdiction to receive, consider and hear communications from victims. The first Optional
Protocol came into force with the Covenant. There are currently 35 signatories and 115 parties
to this protocol.
Second Optional Protocol:
This protocol aims to abolish the death penalty. It was entered into force on July 11, 1991 and
it currently has 37 signatories and 81 parties.
The Second Optional Protocol creates an absolute (or ‘non-derogable’) individual human right
not to be executed and prohibits the execution of anyone under the law of a ratifying country.
The Protocol also carries two important implications:
(1) It prohibits the reintroduction of the death penalty.
(2) It obliges a country in all circumstances to ensure it exposes no one to the real risk of
execution.
The Protocol’s preamble highlights the importance of the abolition of the death penalty for the
protection and development of human rights and assumes States’ adherence to this goal.
Under the Second Protocol, a State’s principal responsibility is to ban executions in its
jurisdiction and, immediately on ratifying the Protocol, to take the necessary measures to
abolish the death penalty if it is not already the case. Given that the Protocol specifically bans
executions, a signatory State must commute the sentences of persons already condemned to
death. The Protocol obliges States Parties not to expose anyone to the actual risk of execution,
whatever the circumstances.
The Protocol is monitored by the Human Rights Committee, one of the organs made up of
independent experts set up by the United Nations to supervise the application of its treaties.
States Parties are obliged to submit regular reports to the committee on the actual respect on
their territory of the rights contained in the treaty. In some cases, the committee can also
examine interstate complaints. The ratification of a treaty has consequences for a State. If it
breaks its obligations, it can be held accountable. This is the case with the Second Protocol.
Enforcement
Article 2(2) of ICCPR provides that State Parties are to take the “necessary steps…. to adopt
such laws or other measures as may be necessary to give effect to the rights recognized in the
present Covenant.” Countries that have ratified the ICCPR must takes steps in their own
jurisdictions to recognize the acceptance of this international covenant because, in
“international law, a signature does not usually bind a State. The treaty is usually subject to a
future ratification, acceptance, approval or accession.” In Canada, the accession process
involves a series of reviews and consultation by the federal government and followed by a
tabling of the treaty in Parliament.
In addition to State Parties’ formally adopting and recognizing the ICCPR in their jurisdiction,
Article 28 of ICCPR provides for a Human Rights Committee (Committee) to be established
for monitoring the State Parties’ implementation of the Covenant. State Parties are required to
submit reports to the Committee for review, on measures used to adopt and give effect to the
rights enshrined in the ICCPR.
As mentioned above, the First Optional Protocol allows victims of human rights violation to
be heard by the Committee. However, the ICCPR also provides in Article 41 that a State Party
who claims another State Party is not fulfilling its obligations to implement ICCPR, may make
written submissions to the Committee for consideration. Also, non-governmental organizations
(NGOs) may also participate in ensuring that values under the ICCPR are protected by
submitting ‘shadow reports’ and highlight areas for consideration by the Committee.
The ICCPR entry into force on 23 March, 1976 and India acceded it on 10 April, 1979. It is an
accepted principle of international law that a treaty is binding on a State from the date of
ratification/accession. Hence the enforcement of human rights treaties in the Indian courts
required to be probed from the date of their respective ratification/accession by India.
ICCPR RELATED CASE LAWS/ JUDICIAL ATTITUDE
It is in this context that the judgment of the Kerala High Court in Xavier v. Canara Bank Ltd.
deserves to be mentioned at the first place. The question arose on whether Article 11 of the
ICCPR 1966, viz., that no one shall be imprisoned merely on the ground of inability to fulfil a
contractual obligation has become part of the Municipal Law of this Country consequently
conferring right to remedial action at the instance of an aggrieved individual of this Country.
The High Court held that individual citizens cannot complain about their breach in the
municipal courts even if the country concerning has adopted the covenants and ratified the
optional protocols.
The Xavier was decided on 10th September 1969 and at that time ICCPR was not in force. It
came into force on 23rd March 1976 and India acceded to it only on 10th April 1979. Thus,
legally ICCPR cannot be the subject matter of enforcement.
The learned Judge Hon’ble Mr. Justice V.R. Krishna Iyer (as he then was) has completely lost
site of these basic tenets of International Law and held that “the remedy for breaches of
International Law in general is not be found in the law courts of the State because International
Law per se or proprio vigore has not the force or authority of civil law, till under its inspirational
impact actual legislation is undertaken….”. With due respect to the learned Judge, what best
he could have said was that ICCPR has not yet come into force and India has not even signed
it and accordingly Article 11 of ICCPR cannot be pressed into muchless be agitated before the
Court.
Eleven years later Xavier confronts Hon’ble Mr. Justice V.R Krishna Iyer in the name of Jolly
George Varghese on the same set of facts but this time before the Supreme Court as the learned
Judge was elevated to the Supreme Court by then. The issue in Jolly George Varghese v.
Bank of Cochin was whether a person could be arrested and detained in civil prison in terms
of Section 51 of Code of Civil Procedure196 (herein after as CPC) for non-payment of decreed
amount as against the right guaranteed under Article 11 of ICCPR to which India was a party
by then, which says that “no one shall be imprisoned merely on the ground of inability to fulfil
contractual obligation”. Inter alia, the issue was one of interpretation between Article 11 of
ICCPR and Section 51 of CPC. The case was very important one as the Supreme Court was
dealing with a case wherein there was a conflict between domestic law and international treaty
right to which India became Party just eight months ago and any result would have far reaching
effect on the subsequent cases involving invocation of international human rights treaties
before Indian courts and it is submitted that Jolly George was the first real case that offered a
great opportunity for the Supreme Court to apply and interpret an international human rights
treaty into the corpus-juris of India.
The Court observed that U.N. Resolutions and Covenants mirror the conscience of mankind
and inseminate, within the member States, progressive legislation; but till this last step of actual
enactment of law takes place, the citizen in a world of sovereign States, has only inchoate rights
in the domestic Courts under these international covenants. The Court adopted harmonious
construction reading Article 11 of ICCPR into the Section 51 of CPC. The Court observed at
para 12 that “Article 11 of ICCPR only interdicts imprisonment if that is sought solely on the
ground of inability to fulfil the obligation.
The impact of Article 11 of ICCPR is very much visible. Article 11 prohibits imprisonment on
every ground of inability whereas Section 51 lays down certain grounds on which a person can
be detained in civil prison. The Court read Article 21 of Indian Constitution and Article 11 of
ICCPR into Section 51 of CPC and held that interpreted in that way Section 51 of CPC cannot
be unfair, unreasonable and cannot be struck down.
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
The International Covenant on Economic, Social and Cultural Rights (ICESCR) together with
its sister Covenant, the International Covenant on Civil and Political Rights (ICCPR), and the
Universal Declaration, form the International Bill of Human Rights which is the pillar for
human rights protection within the United Nations.
The ICESCR was adopted by General Assembly Resolution 2200 A (XXI) of 16 December
1966. The Covenant reflects the commitments adopted after World War II to promote social
progress and better standards of life, reaffirming faith in human rights and employing the
international machinery to that end.
Since the ICESCR is an international human rights treaty, it creates legally binding
international obligations to those States that have agreed to be bound by the standards contained
in it. As of November 2006, 155 States are parties to the ICESCR, thus, it can be seen as a
treaty that reflects global consensus on the universal human rights standards that apply to the
economic, social and cultural fields.
Overview of the Rights Envisaged in the ICESCR

The Preamble of the Covenant recognises, inter alia, that economic, social and cultural rights
derive from the "inherent dignity of the human person" and that "the ideal of free human beings
enjoying freedom of fear and want can only be achieved if conditions are created whereby
everyone may enjoy his economic, social and cultural rights, as well as civil and political
rights." Furthermore, the overarching principles of the Covenant are: (1) equality and non-
discrimination in regard to the enjoyment of all the rights set forth in the treaty; and (2) States
parties have an obligation to respect, protect and fulfil economic, social and cultural rights.
The Covenant recognises the following rights:

• The right to work (Article 6);
• The right to just and favourable conditions of work (Article 7);
• The right to form and join trade unions and the right to strike (Article 8);
• The right to social security including social insurance (Article 9);
• The right to protection and assistance for the family and the prohibition of child labour
(Article 10);
• The right to an adequate standard of living for oneself and one's family, including
adequate food, clothing and housing and to the continuous improvement of living
conditions (Article 11);
• The right to the highest attainable standard of physical and mental health (Article 12);
• The right to education, the freedom of parents to choose schools other than those
established by public authorities (Articles 13 and 14); and
• The right to take part in cultural life and to benefit from scientific progress (Article 15).
States Parties to the ICESCR

States become parties to an international treaty through ratification or accession. When a
country becomes a State party to the ICESCR, it voluntarily accepts a range of legally binding
obligations to promote the realisation of economic, social and cultural rights at the national
level. Moreover, upon ratification or accession to the ICESCR, a State party is also offering
itself to the scrutiny of an international committee of independent experts (the Committee on
ESCR) on the basis of these norms and standards.
It is also important to note that when governments become States parties to the ICESCR, they
can identify that they will not be bound to particular provisions. This is known as "entering a
reservation." Sometimes States parties can also make declarations and these have the same
effect as reservations.
The Office of the United Nations High Commissioner for Human Rights has posted the full
text of the ICESCR, including all of the reservations from different States on their website. The
list of countries that have signed the ICESCR is also included.
The Committee on Economic, Social and Cultural Rights
The Committee on Economic, Social and Cultural Rights is the supervisory body of the
International Covenant on Economic, Social and Cultural Rights. It was established under
United Nations Economic and Social Council (ECOSOC) Resolution 1985/17 of 28 May 1985
to carry out the monitoring functions assigned to the ECOSOC in Part IV of the ICESCR.
The ECOSOC is the primary body dealing with the economic, social, humanitarian and cultural
work of the United Nations system. ECOSOC oversees five regional economic commissions
and six "subject-matter" commissions, along with a sizeable system of committees and expert
bodies. ECOSOC is composed of 54-member States, elected by the United Nations General
Assembly for three-year terms.
The Committee on Economic, Social and Cultural Rights is composed of eighteen independent
experts. Members of the Committee are elected by ECOSOC by secret ballot from a list of
persons who qualify as "experts in the field of human rights" and who have been nominated
for that purpose by the States parties. Members are elected for four years and are eligible for
re-election
The Committee meets in Geneva and normally holds two sessions per year, consisting of a
three-week plenary and a one-week pre-sessional working group. The Committee also
publishes its interpretation of the provisions of the Covenant, known as general comments.
ICESCR RELATED CASE LAWS/ JUDICIAL ATTITUDE
In Daily Rated Casual Labour Employed under P & T Department v. Union of India, the
petitioners sought Writ of Mandamus directing the Union of India to regularize their services
and payment on par with other employees of Post and Telegraph Department. The Supreme
Court disposed of the petition directing the Union of India to frame a policy within eight months
regularizing the services of the petitioners.
The Court said the classification of employees into casual employees and regular employees
for the purpose of payment of salary/remuneration is violative of Article 14 of the Constitution
and against the spirit of Article 7 of ICESCR that provides for equal pay for equal work, fair
wages, safe and healthy working conditions and equal opportunity in promotion, rest, leisure
and remuneration during public holidays.
IMPLEMENTATION OF INTERNATIONAL LAWS IN INDIA
India’s contribution to international law, especially in the field of humanitarian laws,

environment conservation and protection, technology and trade laws, cannot be
overemphasised. At the same time, India has harmonised many of its domestic laws with
international principles and norms in order to fulfil its international commitments. Prominent
in this exchange are human rights, environmental laws, the intellectual property laws,
arbitration law, trade law and space laws. The implementation of international law in India can
be looked at either from the perspective of the role played by each governmental organ, or from
the stand point of each field of law.
Relation between International Law and Indian Law
The application of international law in the municipal sphere in India can be understood through
the interpretations by the courts in its various decisions. India’s approach to international law
can be looked at from two perspectives – Indian law vis-a-vis treaties and Indian law vis-a-vis
international customs.
India follows the dualist theory of international law. Therefore, international law principles and
norms cannot be invoked in municipal courts without being expressly incorporated into the
domestic law. The courts have held that in the light of the provisions of Article 51 treaties to
which India is an assenting party should be implemented in good faith, but at the same time,
the executive cannot be directed to follow the treaty in absence of a domestic law.
However, paradoxically treaties are considered self-executing, that is, they apply in the
municipal sphere automatically, except where it requires an amendment to the Constitution or
an existing law, or where a new law is required to be enacted. Therefore, the Courts can take
aid of the treaty principles not inconsistent with the provisions of laws of India. Customary
international law, on the other hand, is not considered to become part of municipal law
automatically. Therefore, where there is a conflict between municipal law and customary
international law, the former will prevail. Nevertheless, the courts have played an active role
in the implementation of India’s international obligations and have taken cognizance of both
treaty as well as customary principles of international law in cases involving violations of
human rights or questions of environmental law. Although Article 51 mandates respect for
international law, it is not an enforceable Article. Article 253 confers exclusive power on the
Parliament with respect to international affairs. But the Constitution contains no express
provision settling the relation and status of international law in Indian courts.
Fundamental Duties
Article 51A gives effect to the declaration in Article 29(1) of the Universal Declaration of
Human Rights, which emphasises the duties owed by individuals to the community at large.
These duties benefit community and also help in the full flourishing of the individual.
International Peace and Security, and International Relations. Indian Constitution is one
of the few constitutional texts in the world which expressly provides for fostering of
international relations. The text of Article 51 reads as follows:
51. Promotion of international peace and security – The State shall endeavour to –Promote
international peace and security; Maintain just and honourable relations between nations;
Foster respect for international law and treaty obligations in dealings of organised peoples with
one another; and Encourage settlement of international disputes by arbitration."
Article 51 mandates the State to endeavour to promote international peace and security, to
maintain good relations with other nations, to respect international law and to settle
international dispute by peaceful means. This Article is inspired from the Declaration of
Havana adopted on 30th November, 1939. The Declaration proclaimed the ‘unshaken faith’ of
the parties in international co-operation and promoting international peace and security.
Clause (c) of this Article obligates India to respect international law. A combined reading of
this with Part III of the Constitution facilitated the judiciary in developing human rights and
environmental jurisprudence in India. Clause (d) of the Article provides for ‘settlement of
international disputes by arbitration’. It should be remembered that Article 51 is part of the
Directive Principles which are not enforceable. Nevertheless, highest importance is given to
international law and the courts in India have done so.
Powers of the Executive in matters of International Law and Relations
By virtue of Article 73, the powers of the Government of India extend to matters in respect of
which the Parliament has the power to make laws, subject to constitutional provisions or any
law made by the parliament on that behalf. As per Article 253, the Parliament can enact laws
to implement international obligations, notwithstanding the constitutional distribution of
powers. So far, in India, there is no legislation that limits the power the executive in matters of
international law and relations. Hence, we can state that the executive has extensive powers in
this regard.
The power of the executive is vested in the President of India and is exercised by directly or
through officers subordinate to him.
Treaty Making Power
As mentioned above, there is no law in India that restricts the exercise of powers by the
Government of India under Article 73. This enables to executive to incur any kind of treaty
obligations. The legal status of such international obligations in respect of the Constitution can
be analysed by a study of various judgments of the Supreme Court. This peculiar situation
arises due to the lack of clear provisions as to the status of international treaties in the
Constitution, that is, regarding adoption of international law into Indian law. Article 51
obligates respect for international treaties. Article 253 confers powers on the Parliament to
make laws to implement international agreements. Here we have to draw a distinction between
formation of treaty and adoption of that into domestic legal system. Making laws is the
exclusive domain of the legislature.
Therefore, generally, ratification (approval) by the legislature is necessary to make the treaty
binding on the State. Whereas, the executive is the agency of the State, that can incur legal
obligations on the State’s behalf. But, as already explained, there are no fetters on the
executive’s power in respect of international law. Therefore, the Supreme Court held that
international law forms part of municipal law except when they are inconsistent with the
provisions of municipal law. To sum up, the current position in India is that approval of the
Parliament is required only for treaties that affect the rights of the citizens or which require a
new, or change in an existing, municipal law.
The powers of the Parliament

The power of legislating is divided by territorial extent and competence over subject matter.
The Parliament can make laws for the whole of India on subjects specified in List I of Schedule
VII, and the legislature of the any State can make laws applicable within the territory of that
State over the subjects contained in List II. List III is designated as Concurrent List over which
the Parliament as well as the legislature of the States can exercise jurisdiction, subject to the
overall power of the Parliament. Article 253 confers exclusive power on the Parliament to
enact laws to implement international agreements. The Article reads as under:
“253. Legislation for giving effect to international agreements – Notwithstanding anything in

the foregoing provisions of this Chapter, Parliament has power to make any law for the whole
or any part of the territory of India for implementing any treaty, agreement or convention with
any other country or countries or any decision made at any conference, association or other
body."
This power overrides even the other provisions in Chapter 1 of Part XI of the Constitution
which deals with the distribution of powers between the Union and the States, as explained
above. The provisions of Article 253, therefore, gives power to the Parliament to enact laws on
matters listed in List II of Schedule VII, in order to implement international treaties,
agreements, conventions or decisions taken international conference, association or other body.
Hence, the power of the Parliament on matters of international law can be stated to be plenary.
Further, the residuary power of legislating is also with the Parliament. This enables the
Parliament to legislate on matters not listed in Schedule VII.
The Parliament also possesses the power to admit foreign territories into the Union by way of
a law (Article 2). But, if territory of India has to be ceded, a constitutional amendment will be
required, as the Constitution does not specifically empower the Parliament to do so.
Implementation of Human Rights in India
Fundamental rights under the Indian Constitution and the international humanitarian law
contain similar principles and values. Developments in international law have paved way to
various human rights legislations in India. A greater role is being played by the judiciary in
developing human rights jurisprudence in India based on international principles.
The Fundamental Rights and Directive Principles in the Constitution echo international human
rights principle. Special legislations and provisions like the Child Labour (Prohibition and
Regulation) Act, 1986, the Mental Health Act 1987, the Human Rights Act, 1993, the Persons
with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
and the Right of Children to Free and Compulsory Education Act (or the Right to Education
Act), 2009 have also been enacted to ameliorate the marginalised sections of the society. The
Indian judiciary has broadly interpreted the scope of the fundamental rights to best further the
objectives of human rights. It has relied upon various international norms and principles in
order to recognise and enforce various rights. Human rights in India, thus, has greatly
benefited from international law.
In India, SC has held in several cases such as Vishakha vs State of Rajasthan, Randhir vs Union
of India, Unnikrishnan vs State of Karnataka, that domestic laws of India, including the
constitution are not to be read as derogatory to International law. An effort must be made to
read the domestic law as being in harmony with the international law in case of any ambiguity.
At the same time, the constitution is still the supreme law of the land and in case of any directly
conflict the constitution will prevail.
Cairo Declaration on Human Rights in Islam (CDHRI) 1990
The Cairo Declaration on Human Rights in Islam (CDHRI) is a declaration of the member
states of the Organisation of Islamic Cooperation adopted in Cairo, Egypt, on 5 August
1990, which provides an overview on the Islamic perspective on human rights, and
affirms Islamic sharia as its sole source. CDHRI declares its purpose to be "general guidance
for Member States [of the Organization of Islamic Cooperation] in the field of human rights".
This declaration is widely acknowledged as an Islamic response to the Nations’ Universal
Declaration of Human Rights(UDHR), adopted in 1948. It guarantees many of the same rights
as the UDHR and serves as a living document of human rights guidelines prescribed for all
members of the OIC (Organization of Islamic Cooperation) to follow, but restricts them
explicitly to the limits set by the sharia. This greatly restricts rights with respect to the Universal
Declaration, since for example, women and members of other religions do not have the same
rights as men under sharia, and that freedom of expression can be severely limited for religious
reasons: for example, blasphemy can even now be punishable by death, in clear opposition to
the Universal Declaration of Human Rights.
The CDHRI was adopted in 1990 by members of the Organisation of the Islamic Conference.
It has been signed by 45 states so far. In 1992, the CDHRI was presented to the United Nations
Commission on Human Rights, where it was strongly condemned by the International
Commission of Jurists.
The CDHRI has been criticized for being implemented by a set of states with widely disparate
religious policies and practices who had "a shared interest in disarming international criticism
of their domestic human rights record."
The CDHRI has been criticised for failing to guarantee freedom of religion, in particular the
right of each and every individual to change their religion, as a "fundamental and non-
derogable right". In a joint written statement submitted by the International Humanist and
Ethical Union (IHEU), a non-governmental organization in special consultative status, the
Association for World Education (AWE) and the Association of World Citizens (AWC), a
number of concerns were raised that the CDHRI limits human rights, religious freedom, and
freedom of expression. The statement concludes that "The Cairo Declaration of Human Rights
in Islam is clearly an attempt to limit the rights enshrined in the UDHR and the International
Covenants. It can in no sense be seen as complementary to the Universal Declaration."
In September 2008, in an article to the United Nations, the Inquiry writes that the CDHRI
"undermines equality of persons and freedom of expression and religion by imposing
restrictions on nearly every human right based on Islamic Sharia law."
Module 2
Enforcement of Human Rights through the U.N – Right to Development- National and
International Dimensions
Enforcement of Human Rights Through UN
The idea of human rights pre-dates the United Nations. When the United Nations was formed
in 1945, there was overwhelming consensus among the participating member states at San
Francisco Conference that the maintenance of international peace and security, one of the
primary aims, with which the organization was established, was not possible without the
promotion of human rights and fundamental freedoms
All the six principal organs of the United Nations make effective contribution to promote and
protect human rights and fundamental freedom throughout the world. Four specialized agencies
namely, the international organization, the united national educational, scientific and cultural
organization, the world health organization and food and agricultural organization of the United
Nations are successfully carried out their activities in the human rights field. Seven monitoring
committees –the committee on the elimination of discrimination against women, the committee
on economic, Social and Cultural Rights, the committee against tortures, the group of three and
the Committee on the Rights of the child –have been recently established. Their functions are
to monitor and supervise the implementations of concerned multilateral treaties which are
meant to ensure the enjoyment of human rights and fundamental freedoms by everyone without
distinction.
Structures of The United Nations Human Rights Bodies and Mechanisms
The relevant functions and powers of these bodies with regard to promotion and protection of
human rights are discussed below:
General Assembly
The General Assembly is essentially a deliberative, supervisory and reviewing organ of the
United Nations. Article 10 of the U.N. Charter gives the General Assembly two primary
functions. It authorizes the Assembly to discuss any question or any matter within the scope of
the present charter except provided in Article 12 and may make recommendations to the
members of the United Nations or to the security council or to both on such questions or
matters.
One of the main committees of the General Assembly is Social, Humanitarian and Cultural
Committee (Third Committee); normally matters relating to Human Rights are referred to third
committee. An important part of the committee’s work focuses on the examination of Human
Rights questions including reports of the special procedures of the newly established Human
Rights Council. The Committee also discusses the advancement of women, the protection of
children, indigenous issues, the treatment of refugees, the promotion of fundamental freedoms
through the elimination of racism and racial discrimination and the promotion of the right to
self-determination.
Under Article 13 (1) (b) of the charter, the General Assembly has two principal obligations in
matters of Human Rights (1) to initiate studies and to make recommendations for the purpose
of assisting in the realisation of Human Rights and fundamental freedoms for all without
distinction as to the race, sex, language or religion; and (2) promoting International co-
operation in the economic, social, cultural, educational and health fields. The recommendations
which the General Assembly makes on matters of Human Right are technically not legally
binding on states.
The General Assembly may establish such subsidiary organs, as it deems necessary for the
performance of its functions. Among the organs so established are several which are concerned
with Human Rights issues such as decolonization, Apartheid and assistance to vulnerable
groups of people. Through such bodies, the Assembly’s work proceeds continuously
throughout the year. These bodies may be discussed as follows. The General Assembly may
establish such subsidiary organs, as it deems necessary for the performance of its functions.
Among the organs so established are several which are concerned with Human Rights issues
such as decolonization, Apartheid and assistance to vulnerable groups of people. Through such
bodies, the Assembly’s work proceeds continuously throughout the year. These bodies may be
discussed as follows.
Security Council
Security Council is one of the principal organs of the United Nations. It is primarily concerned
with maintenance of International peace and security. But it also deals with the Human Right
problems. Article 39 of the U.N. Charter provides “The Security Council shall determine the
existence of any threat to the peace, breach of the peace or act of aggression and shall make
recommendations or decide what members shall be taken in accordance with Article s 41 and
42, to maintain or restore International peace and security. In discharging its duties, the Security
Council is required under Articles 24 to act in accordance with the purpose and principles of
the United Nations. It is provided under Article 34 of the U.N. Charter that the Security Council
may investigate any dispute or any situation which might lead to International friction or give
rise to a dispute, in order to determine whether the continuance of the dispute or situation is
likely to endanger the maintenance of International peace and security. The Security Council,
when dealing with disputes or situations likely to endanger the maintenance of International
peace and Security and when taking action under chapter VII of the U.N. Charter has repeatedly
made pronouncements for the Promotion and protection of Human Rights.
The Economic and Social Council [ECOSOC]
The Economic and Social Council is under the authority of the General Assembly. It is the
principal organ of the United Nations. Its primary concern lies with the promotion of economic
and social progress, better standards of human welfare and observance of Human Rights and
fundamental freedoms. In fact, it has very wide term of reference which includes:
1. It may make or initiate studies and reports with respect to International, Social,
Economic, Cultural, Educational, health and related matters and may make
recommendations with respect to any such matters to the General Assembly, to the
members of the United Nations and to the specialized agencies concerned.
2. It may make recommendations for the purpose of promoting respect for, and observance
of, Human Rights and fundamental freedoms for all.
3. It may prepare draft conventions for submission to the General Assembly, with respect
to matters falling within its competence
4. It may also call, in accordance with the rules prescribed by the United Nations,
International conferences on matters falling within its competence
5. It may also co-ordinate the activities of the specialized agencies through consultation
with and recommendations to such agencies and through recommendations to the
General Assembly and to the members of the United Nations. However, as a matter of
practice, the Council has addressed its recommendations to non-member states, to
subsidiary bodies of the General Assembly, to International Conferences, to Inter-
Governmental and Non-Governmental Organizations, to people and to individuals in
addition to the General Assembly and Specialized Agencies.
6. The Council may also furnish information to the Security Council and shall assist the
Security Council upon its request
7. Article 68 of the U.N. Charter requires the Council to setup commissions in the
economic and social fields and for the promotion of Human Rights. The Council meets
during two ordinary sessions per year. In addition, an organizational session is held
early in the year and sometimes resumed are held prior to or even during the General
Assembly. The Council would therefore appear to hold considerable potential as an
organ for responding urgently to situations of violations. The annual Human Rights
agenda might even be more rational and effective if Human Rights questions which are
now considered at the second regular session.
The Trusteeship Council

This Council was originally established to preside over the so called “dependent areas” with in
the International Trusteeship system under Article 75 of the U.N. Charter. It is one of the
principal organ of the United Nations. As per Article 76 of the U.N. Charter one of the basic
objectives of the trusteeship system is to encourage respect for Human Rights and Fundamental
Freedoms for all without distinction as to race, sex, language or religion. The goals and tasks
of the Council largely fulfilled and it is therefore now mostly obsolete. Currently the trusteeship
Council only meets if and when a scenario requires it.
The International Court of Justice [ICJ]
The International Court of Justice has been instrumental in deciding some contentious cases
involving such questions of Human Rights, as “the right of asylum, the rights of aliens, the
Rights of the Child, the question of the continued existence of the mandate for South West
Africa, the questions of seizure and holding as hostages of members of the united states
diplomatic and consular staff in Iran and the respect of basic humanitarian principles.
The General Assembly and the Security Council have requested on various occasions for the
advisory opinion of the International Court of Justice. The matters on which opinions sought
were concerned with the International status of south West Africa and with Western Sahara,
reservations concerning the convention on the prevention and punishment of the crime of
Genocide, the consequences of the continued presence of South Africa in Namibia and the
status of special reporters of the sub-commission on prevention of Discrimination and
protection of Minorities
Moreover, the number of International Instruments concerning the implementation of Human
Rights provide for the submission of dispute relating to interpretation of the instrument or its
implementation to the International Court of Justice. The International Court of Justice is
indeed a sine qua non for the establishment of Rule of Law in inter-state relations. The
International Court of Justice has been in the vanguard of the development of International law.
The Secretariat
The secretariat is one of the principal organs of the United Nations. The secretariat comprises
of a secretary General and the staff as the organization may require. The Secretary General is
appointed by the General Assembly Upon the recommendation of the secretary Council. He is
designated as “The Chief Administrative Officer of the organization”. The Secretary General
acts in that capacity in all meetings of the General Assembly Security Council, the Economic
and social Council and the Trusteeship Council and performs such other functions as maybe
entrusted to him by these organs. He also makes an annual report to the General Assembly on
the work of the organization. The secretariat is in charge of carrying out programs designed by
other branches of the United Nations, such as peace keeping missions, International dispute
mediation and studying economic, cultural, Human Rights or social trends. It also handles
administrative details, such as speech and documents translations, UN news and information
releases and International conference co- ordinations. The secretariat deals with the Human
Rights questions through the division for the advancement of women of the centre for social
Development and Humanitarian Affairs and the office of legal Affairs. The office of legal
Affairs assists the International Law commission and legal committee of the General Assembly
when they deal with in Human Rights question. Besides, there are other elements of the
secretariat, such as the Department of Political and Security Council Affairs, the Department
of Political Affairs, Trusteeship and Decolonization and the Department of Public Information,
which assist different organs of United Nations in dealing with Human Rights questions.
The International Law Commission
It was established by General Assembly resolution 174 (II) 174 of 21st November 1947 has for
its object the promotion of the progressive development of International law and its
codification. The members of the commission sit in their personal capacity and not as
representatives of their Governments. It may happen that General Assembly invited the
Commission to deal with particular legal problems. This was the case when the Assembly, in
its resolution 36/106 of 10th December, 1981, invited the commission to resume its work with
a view to elaborating the draft code of offences against the peace and security of mankind, the
full text of which had been submitted by commission to the Assembly in 1954.
The Special committee on Decolonization
It was established by the General Assembly in its resolution 1654 (XVI) of 27th November,
1961 with the purpose of monitoring implementation of the Declaration on the Granting of
independence to colonial countries and peoples. The basic function of the declaration, states
that all peoples have a right to self – determination. It reviews the political, economic, and
social situations in each of the remaining non – self – governing territories on the United
Nations list. Each year the secretariat prepares for the committee working papers on the
developments in these territories. During its annual sessions the committee hears petitions from
the territories, who speak about the concerns and aspirations of their people. The Committee
also holds annual seminars in the pacific or in the Caribbean regions in order to understand
better the conditions in the remaining Non-Self-Governing Territories and to make it easier for
their representatives to communicate with the committee and with each other.
The Special Committee Against Apartheid
In its resolution 1761 (XVII) of 6th November, 1962 the General Assembly established the
special committee on the policies of Apartheid of the Government of Republic of South Africa
with the mandate “to keep the racial policies of the Government of South Africa under review
when the Assembly is not in session” and “to report either to the Assembly or to the Security
Council or to both as may be appropriate, from time to time”. The official website of The 5.2.1
(c) The Special Committee Against Apartheid In its resolution 1761 (XVII) of 6th November,
1962 the General Assembly established the special committee on the policies of Apartheid of
the Government of Republic of South Africa with the mandate “to keep the racial policies of
the Government of South Africa under review when the Assembly is not in session” and “to
report either to the Assembly or to the Security Council or to both as may be appropriate, from
time to time.
United Nations Council for Namibia
The purpose of its establishment was administration of Namibia until the achievement of its
independence. Along with the Council, a United Nations commissioner was also appointed by
the General Assembly to look after such executive and administrative task as were entrusted to
it by the Council. The United Nations Council for Namibia was made responsible to bring
about the implementation of United Nations resolutions on Namibia, to represent Namibia in

International organisations and conferences, to provide material assistance to Namibians and
to disseminate information.
Special Committee to Investigate Israeli Practices Affecting the Human Rights of the
Palestinian People and Other Arabs of the Occupied Territories.
It was established by United Nations General Assembly Resolution 2443 (XXIII) of 19th
December 1968 in order to monitor respect for and implementation of Human Rights in
occupied Territories. The Special committee reports to the General Assembly 8 The elections
for the Namibia’s constituent Assembly were held in November 1989 under United Nations
supervision. The constitution of Namibia was ratified by the Assembly on 9 February, 1990.
147 on matters related to Israeli settlements, the applicability of the fourth Geneva Convention
and the Palestinian right of return. The Committee comprises representatives of three-member
states appointed by the present General Assembly.
Committee on the Exercise of the Inalienable Rights of The Palestinian People
This committee was established in 1975 by resolution 3376 of the United Nations General
Assembly. The committee oversee the programme of implementation to enable the Palestinian
people to exercise their inalienable right to self-determination without external interference,
national independence and sovereignty and to return to their homes and property. The
Committee reports to the Assembly annually. As the mandate for the committee expanded, the
UN established the division for Palestinian Rights as its secretariat.
The United Nations High commissioner for Refugees (UN HCR)
The Office of the UNHCR was established on January 1951 by the General Assembly. It is an
important organ of the United Nations set up to solve the problems of refugees, displaced
persons, stateless persons and returnees, in accordance with the provisions of the charter and
the provisions of Article 14 of the Universal Declaration of Human Rights. The High
commissioner is elected by the General Assembly on the nomination of the secretary General
and is responsible to the Assembly.
The work of UNHCR is humanitarian, Social and non-political. Its basic tasks are to provide
International protection to the refugees within the High commissioner’s mandate and to seek
permanent solutions to their problems by facilitating their voluntary repatriation or their
assimilation within new national communities. The UNHCR initially focused its efforts on
aiding refugees and displaced persons in Europe after World War II, but in later decades the
effort was shifted to resettling refugees who were victims of war, political turmoil or natural
disasters in Africa and parts of Asia and Latin America. UNHCR has been an active office for
the cause of refugees.
The U.N. High Commissioner for Human Rights (OHCHR)
The High Commissioner will be appointed by the Secretary–General for a four-year term
subject to the approval by the General Assembly. The High Commissioner will report, annually
to the Commission on Human Rights and through the Economic and Social Council to the
General Assembly with a branch office in New York. The High Commissioners’ principal
location will be in Geneva. Under the direction and authority of the secretary General of the
U.N, the High commissioner will “promote and protect the effective enjoyment by all the civil,
cultural, economic, political and social Rights” and will play an important role in removing the
current obstacles and in meeting the challenges to the full realization of all Human Rights and
will prevent violations throughout the world.
The Office of the High Commissioner for Human Rights works to offer the best expertise and
support to the different Human Rights monitoring mechanisms in the United Nations system
such as U.N. Charter based bodies including the Human Rights Council and bodies created
under the International Human Rights treaties and made up of independent experts mandated
to monitor State parties in compliance with their treaty obligations. The Office of the United
Nations High commissioner for Human Rights represents the world commitment to universal
ideals of human dignity. The United Nations High Commissioner for Human Rights, in 1994
established a Human Rights Hotline, a 24-hour facsimile line that will allow the office of the
High Commissioner for Human Rights in Geneva to monitor and react rapidly to Human Rights
emergencies. The Hot line is available to victims of Human Rights violations, their relatives
and Non-Governmental Organisations. The Hot line is valuable to those wishing to establish
urgent, potentially lifesaving contact with the special procedures branch of the office of the
High Commissioner for Human Rights
The United Nations Children’s Fund [UNICEF]
It was created by the United Nations General Assembly on December 11, 1946 to provide
emergency Food and health care to children in countries that had been devastated by the world
war-II. In 1953, UNICEF became a permanent part of the United Nations system. UNICEF
provides long term Humanitarian and developmental assistance to children and mothers in
developing countries. The General Assembly has performed important functions in the social,
economic and cultural fields and in the fields of Human Rights. Besides this, uniting for peace
resolution, 1950 conferred upon the Assembly important powers relating to the maintenance
of International peace and Security.
United Nation Charter-based institutions
1.Human Rights Council
The General Assembly in its 60th plenary session decided to replace the U.N. Commission on
Human Rights by Human Rights Council, aiming to strengthen the world body’s machinery to
promote and protect Human Rights and fundamental freedoms. Accordingly, the new Human
Rights Council came into existence with the main purpose of addressing situations of Human
Rights violations and make recommendations on them. The Human Rights Council based in
Geneva and it is the subsidiary organ of the General Assembly.
The establishment of the Human Rights Council in the place of criticized commission on
Human Rights implies a deep responsibility towards all persons, organizations and government
that expect to be a guarantee for a major enforcement of Human Rights around the world. This
new Human Rights Council will be permanent and directly subsidiary to the General Assembly,
which will enable it to deeply analyse Human Rights violations in any and all countries. The
H.R.C‟s work shall be guided by the principles of university, impartiality, objectivity non-
selectivity and International dialogue and co-operation37 and it shall have to report in time to
all bodies and agencies like Security Council may prevent or stop gross and systematic
violations of Human Rights.
Functions and Powers of the council
A) Promote human rights education and learning as well as advisory services, technical
assistance and capacity-building to be provided in consultation with and with the consent of
member States concerned
B) Serve as forum for dialogue on thematic issues on all human rights
C) Make recommendation to the General Assembly for the further development of international
law in the field of human rights
D) Promote the full implementations of human rights obligations undertaken by states and
follow up to the goals and commitments related to the promotion and protection of human
rights emanating from United nations conference and summits
E) Undertake a universal periodic review, based on objective and reliable information’s, of
the fulfilment by each state of its human rights obligations and commitments in a manner which
ensures universality of coverage and equal treatment with respect to all States ; the review shall
be a cooperative mechanism, based on an interactive dialogue , with the full involvement of
the country concerned and with consideration given to its capacity-building needs ; such a
mechanism shall complement and not duplicate the work of treaty bodies; the council shall
develop the modalities and necessary time allocation o the universal periodic review
mechanism within one year after holding of its first session
F) Contribute, through dialogue and cooperation, towards the prevention of human rights
violation and respond promptly to human right emergencies
G) Assume the role and responsibilities of the commission on Human Rights relating to the
work of the Office of the United Nations High Commissioner for Human rights, as decide by
the Generally assembly in its resolution 48/141 of 20Dec. 1993
H) Work in close cooperation in the field of human rights with Govt. regional organizations,
national human rights institutions and civil society
I) Make recommendations with regard to the promotion and protection of human rights
J) Submit an annual report to the General Assembly
2. Sub- commission on Prevention of Discrimination and protection of Minorities
The Sub-commission on prevention of Discrimination and protection of Discrimination and
protection of Minorities is the main Subsidiary organ of the commission on Human Rights. It
was established by the Commission in1947. It consists of twenty-six experts, elected by the
commission with due regard for equitable geographical representation. There are provisions
for single alternate for each member. Half of the members and alternative are elected every two
years. Experts serve for a term of four years and may be re-elected. The functions of the Sub-
commission are as follows
1) To undertake studies, particularly in the light of the UDHR and to make recommendations
to the Commission on HR, and to make recommendations to the discrimination of any kind
relating to HR concerning the prevention of discrimination of any kind relating to HR and
fundamental freedoms and the protection i\of racial, national, religious and linguistic minorities
2) To review developments in the field of slavery and the slave trade in all their practices and
manifestations, including the slavery- like practices of apartheid and colonialism, the traffic in
persons and the exploitation of the prostitutions of others
3) To perform any other functions which may be entrusted to it by the Economic and Social
Council or the Commission on Human rights.
3.The Commission on the Status of women
The Commission on the status of women is a functional commission of the Economic and
Social Council which was established in 1946, dedicated exclusively to Gender Equality and
advancement of women. At present the commission consists of one representative from each
of the 45-member states elected by the economic and social Council on the basis of equitable
geographical distribution. The Functions of the commission are: a) To prepare
recommendations and reports to the ECOSOC on the promotion of women rights in political,
economic, civil, social and educational fields; and b) To make recommendations to the Council
on urgent problems requiring immediate attention in the field of women’s rights with the object
of implementing the principle that men and women shall have equal rights and develop
proposals to give effect to such recommendations. The Commission submits a report on each
session to the Council. The Commission on the status of women is one of the commissions of
the United Nations that do not limit participation to state only.
The Commission on the status of women has consistently promoted the advancement of
women. It has been instrumental in expanding the recognition of women’s rights, in
documenting the reality of women’s lives throughout the world, in shaping global policies on
Gender Equality and Empowerment of Women in ensuring that the work of the UN in all areas
incorporates a gender perspective. It continues to play a critical role by bringing together
Governments, UN entities, NGO‟s and other International and Regional Organizations to
promote women’s rights and advance Gender Equality.
4. Treaty monitoring bodies
The Committee on Economic, Social and Cultural Rights
The International covenant on Economic, Social and cultural Rights, 1966 is the only United
Nations Human Rights treaty which did not establish a committee to oversee and monitor the
implementation of the covenant. The committee on Economic Social and Cultural Rights was
established by the United Nations Economic and Social Council to carry out the monitoring
functions assigned to the to the United Nations Economic and social Council in part IV of the
Covenant. It is the body of independent experts that monitors implementation of the

International covenant on Economic, Social and cultural Rights by its State parties. It strives
to develop a constructive dialogue with State parties and seeks to determine through a variety
of means whether or not the norms contained in the covenant are being adequately applied in
states parties and how the implementation and enforcement of the covenant could be improved
so that all people who are entitled to the rights enshrined in the covenant can actually enjoy
them in full. State parties are obliged to submit regular reports the committee on how the rights
are being implemented.
The Committee on the Elimination of Discrimination against Women
The Committee on the Elimination of Discrimination against Women was established pursuant
to the Convention on the Elimination of all forms of Discrimination Against Women. It is the
body of independent experts that monitors implementation of the Convention on the
Elimination of all forms of Discrimination against Women. The Committee consists of 23
experts on the women’s rights from around the world. In the election of persons to the
committee, consideration is given to equitable geographical distribution and to the
representation of different civilizations and legal systems. The committee’s main function is to
monitor the implementation of the convention based on consideration of reports from State
parties.
The implementation machinery under the Convention on the Elimination of all forms of
Discrimination against Women is very weak and far from satisfactory by any standard. The
committee has no teeth. It cannot compel the States parties to give effect to the provisions of
the convention. It may simply make suggestions and general recommendations based on the
examination of reports and information received from the State parties. Indeed, it is much
weaker than the Human Rights Committee established under the International Covenant on
civil and political rights. The convention of the Elimination of All forms of Discrimination
against Women is also conspicuous by absence of provisions relating to inter-state
communication systems.
The Committee against Torture
The committee against Torture was established pursuant to the convention against Torture and
other cruel, Inhuman or Degrading Treatment or punishment. The primary functions of the
committee are to monitor the implementation of the convention by examining reports submitted
by states parties, to receive individual communications concerning violations of the convention
by states parties which have accepted the optional procedure under Article 22 of the convention
and to conduct inquiries into alleged systematic practice of Torture in states which have
accepted the procedure under Article 20.
Under the convention, all states parties are obliged to submit regular reports to the committee
on how the rights are being implemented. States must report initially one year after acceding
to the convention and then every four years. The committee examines each report and addresses
its concerns and recommendations to the state party in the form of “concluding observations”.
In addition to the reporting procedure, the convention establishes three other mechanisms
through which the committee performs its monitoring functions: the committee may also, under
certain circumstances, consider individual complaints, or communications from individuals

claiming that their rights under the convention have been violated, undertake inquires, and
consider inter-state complaints.
The Committee on the Rights of the Child
The committee on the Rights of the Child was established under the convention on the Rights
of the Child. The main function of the committee is to monitor the implementation of the
convention on the Rights of the Child based examination of state reports in close cooperation
with the United Nations Children’s Fund (UNICEF), Specialised Agencies and other
competent bodies including Nongovernmental Organizations (NGO’s). It also monitors
implementation of two optional protocols to the convention, on involvement of children in
armed conflict and on sale of children, child prostitution and child pornography. All State
parties are obliged to submit regular reports to the committee on how the rights are being
implemented. States must report initially two years after acceding to the convention and then
every five years. The committee examines such report and addresses its concerns and
recommendations, to the state party in the form of “concluding observations”. The committee
reviews additional report which must be submitted by states who have acceded to the two
option protocols to the convention. The committee cannot consider individual complaints,
although child rights may be raised before other committees with competence to consider
individual complaints.
The Committee on the Rights of the Child
The committee on the Rights of the Child was established under the convention on the Rights
of the Child. The main function of the committee is to monitor the implementation of the
convention on the Rights of the Child based examination of state reports in close cooperation
with the United Nations Children’s Fund (UNICEF), Specialised Agencies and other
competent bodies including Nongovernmental Organizations (NGO’s). It also monitors
implementation of two optional protocols to the convention, on involvement of children in
armed conflict and on sale of children, child prostitution and child pornography. The
committee cannot consider individual complaints, although child rights may be raised before
other committees with competence to consider individual complaints.
The committee publishes its interpretation of the content of Human Rights provisions, known
as general comments on thematic issues and organizes days of general discussion. The
committee is required to submit reports on its activities every two years to the General
Assembly through the Economic and social Council 110. The implementation machinery under
the convention is very weak. The Committee on the Rights of the Child has no teeth. It can
simply make suggestions and recommendation. Therefore, International co-operation and
sincere national efforts are required to improve the lot of millions of children who are the
victims of violation of Human Right all over the world.
The Committee on the Elimination of Racial Discrimination
The committee on the Elimination of Racial Discrimination was established under the
International convention on the Elimination of All forms of Racial Discrimination. The
committee monitors the implementation of the convention by examining reports submitted by

states parties which are due every two years. The states parties are to submit their report within
one year of becoming parties to the convention and then once every two years 112. The
committee is required to send annual report to the General Assembly through the Secretary-
General of the United Nations. In its report the committee may make general recommendations
and proposals on the basis of the review of the reports and information received from the states
parties. In additions to the reporting procedure the convention establishes three other
mechanisms through which the committee performs its monitoring functions: the early warning
procedure, the examinations of individual and the examination of inter-state complaints. The
committee also publishes its interpretation of the content of Human Rights provisions, known
as general recommendation on thematic issues and organizes thematic discussions.
The Committee on the protection of Rights of all Migrant Workers and Members of their
Families
The committee on the protection of Rights of all Migrant Workers and Members of their
Families was established under the International convention on the protection of the Rights of
all Migrant Workers and Members of their Families. All States parties are obliged to submit
regular reports to the committee on how the rights are being implemented. States must reports
initially one year after acceding to the convention and then every five years. The committee
will examine each report and address its concerns and recommendations to the State party in
the forms of “concluding observations”. The committee will also, under certain circumstances
be able to consider individual complaints or communications from individuals claiming that
their rights under the conventions have been violated after 10 State parties have accepted this
procedure in accordance with Article 77 of the convention. At the moment, two States have
accepted this procedure. The committee also organizes days of general discussion and can
publish statements on themes related to its work and interpretations of the content of the
provisions in the convention. The committee shall present an annual report to the General
Assembly of the United Nations on the implementation of the present convention, containing
its own considerations and recommendations based, in particular, on the examination of reports
and any observations presented by State parties.
The Committee on the Rights of Persons with Disabilities
The Committee on the Rights of Persons with Disabilities was established pursuant to the
convention on the Rights of Persons with Disabilities 116. It is the body of 12 independent
experts that monitors the implementation of the convention on the Rights of Persons with
Disabilities and its optional protocol. All State parties are obliged to submit regular reports to
the committee on how the rights are being implemented.
All State parties are obliged to submit regular reports to the committee on how the rights are
being implemented. States must report initially within two years of accepting the convention
and there after every four years. The committee examines each report and shall make such
suggestions and general recommendations on the reports as it may consider appropriate and
shall forward these to the convention the state party concerned. The optional protocol to the
convention gives the committee competence to examine individual complaints with regard to
alleged violations of the convention by State parties to the protocol. This convention contains
a unique provision regarding the role of civil society in monitoring its implementation. Article
33 of the convention states that Civil Society shall be involved and participate fully in
monitoring process established by State parties, thus giving Civil Society a central role in
promoting the implementation of the convention.
Human rights committee
UDHR, ICCPR, ICESCR-Details already provided in 1st module.
Right to Development
“The right to development is an inalienable human right by virtue of which every human person
and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural
and political development, in which all human rights and fundamental freedoms can be fully
realized.” (Article 1.1, Declaration on the Right to Development) “The human right to
development also implies the full realization of the right of peoples to self-determination,
which includes, subject to the relevant provisions of both International Covenants on Human
Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth
and resources.” (Article 1.2).
The Declaration on the Right to Development (RTD) which stated unequivocally that the right
to development is a human right, was adopted by the UN in 1986 by an overwhelming majority,
with the US casting the single dissenting vote. This Declaration came almost 38 years after the
adoption of the Universal Declaration of Human Rights, according to which human rights
constituted both civil and political rights (Articles 1 to 21) and economic, social and cultural
rights (Articles 22 to 28).
The first article of the text of the Declaration on the Right to Development succinctly puts
forward the concept of the right development. It states, “The right to development is an
inalienable human right by virtue of which every human person and all peoples are entitled to
participate in and contribute to and enjoy economic, social, cultural, and political development
in which all human rights and fundamental freedoms can be fully realised”. First, there is a
human right that is called the right to development, and this right is ‘inalienable’, meaning it
cannot be bargained away. Then, there is a process of “economic, social, cultural, and political
development”, which is recognised as a process in which “all human rights and fundamental
freedoms can be fully realised”. The right to development is a human right, by virtue of which,
“every human person and all peoples are entitled to “participate in, contribute to and enjoy”
that processes of development.
According to this provision, the RTD has five main characteristics: • The RTD is inalienable.
• It is a process securing the right to participation. • It is a process in which all human rights
and fundamental freedoms should be realised • It is an individual and collective right.461 •
The RTD underlines the right of people to self-determination.
The process of development, “in which all human rights and fundamental freedoms can be fully
realised,” would lead to, according to Article 2, clause 3, “the constant improvement of the
well-being of the entire population and of all individuals, on the basis of their active, free and
meaningful participation in development and in the fair distribution of benefits resulting there
from”. Article 8 elaborates this point further by stating that the measures for realising the right
to development shall ensure, “equality of opportunity for all” in their access to basic resources,
education, health services, food, housing, employment and in the fair distribution of income.
The realisation of the right would also require that women have an active role in the
development process, and that “appropriate economic and social reforms should be carried out
with a view to eradicating all social injustices”. To realise this process of development to which
every human person is entitled by virtue of his right to development, there are responsibilities
to be borne by all the concerned parties; ‘the human persons’, ‘the states operating nationally’,
and ‘the states operating internationally’. According to Article 2, clause 2, “all human beings
(persons) have a responsibility for development individually and collectively,” and they must
take appropriate actions, maintaining “full respect for the human rights and fundamental
freedoms as well as their duties to the community”. Human persons thus are recognised to
function both individually and as members of collectives or communities and to have duties to
communities that are necessary to be carried out in promoting the process of development.
Sources for the Right to Development
The right to development was proclaimed in the Declaration on the Right to Development,
adopted in 1986 by the United Nations General Assembly (GA) in its resolution 41/128. This
right is also recognized in the African Charter on Human and Peoples' Rights and the Arab
Charter on Human Rights and re-affirmed in several instruments including the 1992 Rio
Declaration on Environment and Development, the 1993 Vienna Declaration and Programme
of Action, the Millennium Declaration, the 2002 Monterrey Consensus, the 2005 World
Summit Outcome Document and the 2007 Declaration on the Rights of Indigenous Peoples.
Duty bearers for the Right to Development
Under the Declaration, “States have the primary responsibility for the creation of national and
international conditions favourable to the realization of the right to development” (Article 3).
According to the high-level task force on the implementation of the right to development “the
responsibility for the creation of this enabling environment encompasses three main levels: (a)
States acting collectively in global and regional partnerships (second preambular paragraph
and Article 3); (b) States acting individually as they adopt and implement policies that affect
persons not strictly within their jurisdiction (Article 4); and (c) States acting individually as
they formulate national development policies and programmes affecting persons within their
jurisdiction (Article 2).”
United Nations Mechanisms dealing with the Right to Development
The intergovernmental open-ended Working Group on the Right to Development was
established in 1998. The Working Group meets once a year and reports to the Human Rights
Council (HRC) and the GA. Its mandate is inter alia: (a) to monitor and review progress made
in the promotion and implementation of the right to development as elaborated in the
Declaration, at the national and international levels, providing recommendations thereon and
further analysing obstacles to its full enjoyment…; (b) to review reports and any other
information submitted by States, United Nations agencies, other relevant international

organizations and non-governmental organizations on the relationship between their activities
and the right to development; and (c) to present for the consideration of the HRC a sessional
report on its deliberations, including advice to the Office of the United Nations High
Commissioner for Human Rights (OHCHR) with regard to the implementation of the right to
development, and suggesting possible programmes of technical assistance at the request of
interested countries with the aim of promoting the implementation of this right. Until April
2010, the Working Group was supported by the high-level task force on the implementation of
the right to development, established in 2004 with the composition of five independent experts,
to provide expert advice to the Working Group. At the request of the Working Group, the high-
level task force proposed a set of criteria and corresponding operational sub-criteria3 for the
implementation of the right to development.
Mandate of the High Commissioner and OHCHR concerning the Right to Development
GA resolution 48/141 which established the post of High Commissioner (HC) explicitly
includes the mandate “to promote and protect the realization of the right to development and
to enhance support from relevant bodies of the UN system for this purpose.” The right to
development has been consistently highlighted by the GA and the HRC which both request the
Secretary-General and the HC to report annually on progress in the implementation of the right
to development including activities aimed at strengthening the global partnership for
development between Member States, development agencies and the international
development, financial and trade institutions. UN agencies and international institutions
involved in the work of human rights and development as well as the right to development
include UNDP, UNCTAD, UNFCCC, ECA, the World Bank, IMF, WTO, UNESCO, WIPO,
WHO, the Global Fund and ICTSD.
What is the added value of the Right to Development?
The right to development provides a comprehensive framework and approach to the policies
and programmes of all relevant actors at the global, regional, sub-regional and national levels
as this right –
• integrates aspects of both human rights and development theory and practice;
• encompasses all human rights – civil, political, economic, social and cultural;
• requires active, free and meaningful participation;
• involves both national and international dimensions of State responsibilities including
in the creation of an enabling environment for development and favourable conditions
for all human rights;
• demands comprehensive and human-centred development policy, participatory
development processes, social justice and equity;
• embodies the human rights principles of equality, non-discrimination, participation,
transparency, accountability as well as international cooperation in an integrated
manner;
• implies the principles of self-determination and full sovereignty over natural wealth and
resources;
• facilitates a holistic approach to the issue of poverty by addressing its systemic and
structural causes;
• strengthens the basis for pro-poor growth with due attention to the rights of the most
marginalized;
• fosters friendly relations between states, international solidarity, cooperation and
assistance in areas of concern to developing countries, including technology transfer,
access to essential medicines, debt sustainability, development aid, international trade
and policy space in decision-making.
How can the right to development be operationalized in practical terms?
With the purpose of translating the right to development from political commitment to
development practice, the criteria proposed by the high-level task force were designed to serve
as an operational tool to:
• assess the extent to which States are individually and collectively taking steps to
establish, promote and sustain national and international arrangements that create an
enabling environment for the realization of the right to development;
• serve as a useful tool for stakeholders to assess the current state of the implementation
of the right to development and facilitate its further realization at the international and
national levels;
• contribute to mainstreaming the right to development in the policies and operational
activities of relevant actors at the national, regional and international levels, including
multilateral financial, trade and development institutions; and
• evaluate the human rights implications of development and trade policies and
programmes. The operationalization of the right to development also requires
application of the above-mentioned human rights principles and good governance to
the activities of all relevant stakeholders at both the national and international levels.
International Dimensions
Different countries or groups of countries promote different views on the RtD. The perceptions
of what the RtD could mean or what its realization would require could not be more diverse.
The following paragraphs reflect some of the most prominent positions:
Germany
Germany supports and agrees to the concept of the Right to Development. However, it
emphasizes the fact that the RtD does not necessarily focus on international cooperation,
stressing instead that the primary duty to create an enabling environment lies with the
developing states themselves. The RtD is not viewed as entailing any specific c legal obligation
of individual states vis-à-vis any other particular state. Germany fully endorses the concept that
the RtD means “growth with equity.” From Germany’s point of view, the RtD and a rights-
based approach to development attach importance to both development outcomes and
processes of development.
United States
The US position shows some ambiguity. While the US has accepted the RtD in key documents,
administration officials reject any responsibilities that could arise from an application of the
RtD and generally vote against resolutions that would advance the RtD. While President Bush
called for implementation of the Monterrey Consensus and the creation of a “genuine
partnership between developed and developing countries to replace the donor-client
relationship,” representatives of the US in international fora continued to object to resolutions
on the RtD. The main objection to such resolutions was that the US understands the term RtD
“to mean that each individual should enjoy the right to develop his or her intellectual or other
capabilities to the maximum extent possible through the exercise of the full range of civil and
political rights. “The US is willing to “talk about an individual’s right to development,” but not
a “nation’s right to development, […], for the simple reason that nations do not have human
rights.” The US also rejects, consequently, the elaboration of a legally binding instrument on
the RtD.
United Kingdom / European Union (EU)
During the time of its EU presidency, the UK strongly promoted a new approach to
development cooperation. The basic ideas are laid down in its paper “Rethinking
Conditionality.” According to the UK submission to the 2005 meeting of the High-Level Task
Force on the RtD, the UK’s “understanding of what makes aid effective is changing.” An
overriding principle of its new approach in development cooperation is therefore to move away
from classic notions of conditionality to a broader understanding of partnership, which involves
leaving decisions about the development processes largely up to partner countries. The UK is
“committed to supporting partner governments to fulfil their human rights obligations and will
agree with governments how to assess progress in this area.”
African Union (AU) and Non-Aligned Movement (NAM)
In the 1981 African (Banjul) Charter on Human and Peoples’ Rights, the RtD appears as a right
of peoples, not individuals. As such a right, it is also incorporated into several national
constitutions. The members of the AU committed themselves in the Banjul Charter, which
dates to a time prior to the Declaration on the Right to Development, to an understanding of
the RtD that is not shared by many developed states.
It agrees that national action and international cooperation must reinforce each other and calls
on donors to operationalize the Monterrey Consensus and come to a mutual understanding on
partnerships that would set out principles of good governance and good donorship. In their
view, the current discussion focuses too narrowly on the national dimension of the RtD and
neglects the international aspect.
National Dimensions (India)
The Constitution of India, drafted roughly around the same period as the Universal Declaration
of Human Rights, provides for a separate chapter on the protection and promotion
of Fundamental Rights. However, unlike the Universal Declaration that does not
distinguish between sets of rights (civil, political, economic, social and cultural), the Indian
Constitution makes a fundamental distinction between justiciable and non-justiciable rights.
While the protection and promotion of civil and political rights is legally binding upon the
State, the responsibilities of promoting economic, social and cultural rights are relatively less
explicit. Enlisted as Directive Principles of State Policy, these do not enjoy the justiciable status
of fundamental rights but are nevertheless important as they embody policy guidelines that are
to be progressively realised and observed by the State in good faith.
The possibility of the implementation of the right to development in India remains as yet a
largely untested proposition. Keeping in mind the constraints— political, social, economic, and
cultural— that typically inhibit development efforts in low and middle-income countries, as
well as the contradictions and challenges confronting development within the country, there
exists a strong case for exploring how the right to development approach may be adopted in
the Indian context.
The right to development is a right to a process, not just outcomes, based on the five principles
of rights-based approach— equity, non-discrimination, transparency, accountability and
democratic participation.
The right to development requires the realisation of all rights in an integrated manner rather
than viewing them as discrete components. Trade-offs among rights or between rights and
economic growth that lead to the diminution of the enjoyment of any right are inconsistent with
the right to development.
There exists a strong connection between the realisation of all the rights taken together in the
right to development and the need for economic growth in relaxing the constraints of resources,
technology and institutions.
As a country, the Indian experience with development provides an interesting test case.
Predominantly capitalist in orientation, traces of feudal life still exist in certain parts of the
country that pose a challenge to the democratic norms of modern society. Bonded wage labour
as opposed to free employment, small-scale labour-intensive manufacturing units vis-a vis
larger and fully automated units of production, the co-existence of a relatively small organised
sector with a massively huge and heterogeneous unorganised sector, are a few reflections of
the complexities involved.
Right to Development in the Context of the Indian Development Experience
For example, while India ranks high in terms of global competitiveness (rank 57), India’s social
indicators remain weak by most measures of human development. In terms of human
development ranking, India ranks at par with countries having lower per capita incomes (rank
127). Desperately low achievements in attaining equity of opportunities to basic goods and
services, such as schools and hospitals, make the application of the rights-based approach to
development imperative in India.
The application of the right to development in India mainly reflects a legal argument for the
protection of minority rights, such as women’s rights, Dalit rights and Adivasi rights in cases
on affirmative action in education, land acquisition and labour rights. For instance, in a
judgment on the constitutionality of customary law in Bihar in 1996, which had until then
excluded tribal women from the inheritance of property, the right to development was used to
argue for an amendment of the discriminatory law ‘…to ensure that women have an active role
in the development process. Appropriate economic and social reforms should be carried out
with a view to eradicate all social injustice’ (Madhu Kishwar vs. State of Bihar). There is,
however, a risk of misuse involved as exemplified by a judgment in 2010 on the land
acquisition for the construction of the Yamuna Expressway. There it was argued that ‘…the
scales of justice must tilt towards the right to development of the millions who will be benefited
from the road and the development of the area, as against the human rights of 35 petitioners
therein…’ (Nand Kishore vs. State of U.P.). In my mind, this interpretation, uses the right to
development for a utilitarian legal argument to justify human rights restrictions.
To sum up, the dominant definition of development in terms of economic growth is challenged
by the United Nations declaration on the right to development which redefines development as
the fulfilment of all human rights for all people. The study of the juridification of the right to
development in Indian case law showed that the right can either become an instrument for the
protection of minority rights when it is used according to its redefinition of development as a
human right. There is, on the other hand, a danger involved when the redefinition of
development as put forth in the declaration is turned towards its exact opposite and the right to
development, thereby, becomes an instrument to justify human rights restrictions of particular
groups of people for the purpose of the public interest and development of the people of India.
The rights approach to development requires us to re-examine the ends and means of
development. If improvement of well-being of the people based on the enjoyment of rights and
freedoms is the objective of development, economic growth consisting of the accumulation of
wealth and gross national product would not be an end in itself. It can be one of the ends and
can also be a means to some other ends, when ‘well-being’ is equivalent to the realisation of
human rights. As Amartya Sen would have put it, a prosperous community of slaves who do
not have civil and political rights cannot be regarded as a community with well-being.
ROLE OF NON-GOVERNMENTAL ORGANISATIONS IN PROTECTING HUMAN

RIGHTS
Non-government Organizations (NGO's) are voluntary organizations. They are formed by

people who want to work for the welfare of people in general and the less privilege and help
less in particular. The Government, central or state has it limitations in providing welfare
measures like means of livelihood, education and health services to people who need them.
Lack of funds, lack of manpower, public protest and pressure from political parties are some
of the problems faced by the government in providing welfare measures to people. On the other
hand, NGO's have better network of manpower.
The Peoples Union for Civil Liberties, The Chipko movement and The Narmada Bachao
Andolan are the most active NGO' s in India. Their role in the protection of human rights is as
follows.
People’s Union for Civil Liberties (PUCL)

This is a Delhi – based NGO. At the outset it is necessary to know the situation in which the
PUCL was founded in 1976 by Jayaprakash Narayan, the great Gandhian leader. In the
beginning he formed a national group named, Citizens for Democracy (CFD) in 1974 along
with similar groups in Delhi, Madras, Mumbai and Calcutta for opposing the autocratic
functioning of the government of India. Later on, emergency was declared by the government.
During the emergency, fundamental rights and civil liberties of people were suppressed Again
the National Security Act was passed in 1980. This is a repressive law which introduced
preventive Detention of people under the pretext of national security. In a response to this act,
the PUCL was revitalized in 1980. It insisted that the civil liberties of people must be protected
at any cost. It also pledged to work against any type of discrimination that encroaches civil
liberties of the weaker sections of society like children, women etc
People have Right to live. This also includes the Right to food and livelihood. On the basis of
this, in 2001, the PUCL filed Public Interest Litigation (PIL) in the Supreme Court. The six
states in India such as Orissa, Maharashtra, Gujarat, Rajasthan, Himachal Pradesh, and
Chattisgarh were hit by acute drought. People in these states were starving. Still the state
governments were not providing food to people. These droughts hit people were not in a
position to purchase food grains. On the basis of the PIL filed by the PUCL, the Supreme Court
directed the respective state government to provide food to the drought affected people free of
cost. Thus, the Right to life of people was protected.
People’s Union for Democratic Rights (PUDR): This organization positively states that the
underprivileged people have Right to organize themselves and to agitate or revolt for bringing
about total change in the socio economic and political system if it does not ensure solutions to
their problems. This organization also filed a case in the Supreme Court for protecting the
economic rights of Asiad workers. They were paid less than minimum wages. The court
declared that it amounts to forced labour and it also violates the article 23 of the constitution
of India. And thus, the justice was done to the Asiad workers.
The Chipko Movement.: This movement was started by Sunderlal Bahuguna and
Chandiprasd Bhat in 1970. It spread in Garhwal region of Himalayas which is the source of
great rivers like the Ganga and the Yamuna. The Uttar Khand faced environmental problems
like soil erosion, drying up of the sources of water due to clearing of forests. People started
cutting of trees for commercial purposes. This also caused soil degradation. And it became
essential to protect the environment from its further degradation due to deforestation. The
movement started for this purpose was named as the Chipko Movement. The term `Chipko’
Literally means hugging or embracing trees. Shri Bahuguna started protecting the trees by
embracing them. This is the mass movement of its kind started solely for protecting the trees
and forests.
The Chipko movement is also working for the protection of human rights. Tribal people living
in forests as well as in hilly area earn their livelihood by extracting and selling forest products.
They have Right to Life including the Right to Food, and livelihood. They also have Right to
Unpolluted environment. And the Chipko agitation is consistently working for protecting
mainly the economic and environmental rights of tribal people. Thus, the chipko movement
that started as a campaign for environmental protection has been also protecting human rights
of people.
The Narmada Bachao Andolan (NBA): The Sardar Sarovar project is one of the mega
development projects in India. It is also a multi-purpose project. It was undertaken in 1946 for
providing drinking water to people, supplying water for irrigation and also for the generation
of energy. The project involved the construction of hundreds of small and large dams. This
project is so big that it caused the submergence of lakhs of hectares of agricultural and forest
land and hundreds of villages also. It displaced over a million of people. Most of them are tribal
people. And the most unfortunate part of the project was that these displaced people were not
given adequate compensation for the loss of their land, employment and property. They were
not provided alternative means of livelihood and employment opportunities. Their
rehabilitation was totally neglected and the most fundamental human right of people such as
Right to life that includes the Right to food and livelihood was violated. Their civil liberties
were suppressed. And when people protested against the forced acquisition of land by the
government, they were denied vivid liberties. Their rightful demands for compensation and
rehabilitation were just neglected. The worst part is that several people were also killed.
The NBA: Protector of Human Rights.
It is on this background the NBA was started by Medha Patkar, a social activist. She led the
agitation and worked for the cause of people who were displaced by the project. She mobilized
people for fighting against the violation of human rights of project affected people. In 1994 she
moved the Supreme Court for opposing the rise in the height of Narmada dam. She opposed it
mainly on the ground of environmental damage caused by the dam and the neglect of
rehabilitation of tribal people. The Supreme Court asked the authorities of the project to get
clearance from environmental and rehabilitation authority for the continuation of the
construction of the Narmada dam. Because the court was happy with the rehabilitation work of
displaced people by the Gujarat, Madhya Pradesh and Maharashtra Government, it ordered the
construction of dam upto ninety meters. It is at this juncture, Baba Amte, a great social reformer
and Arundhati Roy, a great Literary figure joined the NBA.
Baba Amte criticised the Supreme Court order and appealed K.R. Narayan, the then president
of India to intervene the Supreme Court order in the interests of people. According to him it is
a prerogative of the President of India to review the Supreme Court order when the fundamental
rights of quite a large number of people are being violated. Thus, though in the beginning the
NBA started as environment protection movement gradually it became the Human Rights
protection movement.
The Amnesty International (AI)
This is another world-famous NGO working for the protection of human rights. It was
established in 1961. The AI mainly deals with the five areas viz women’s Rights, Children
Rights ending Torture and Execution, Rights of Refugees and Rights of prisoners of
conscience. At present the AI is concentrating mainly on controlling the violence against
women and checking the world arms trade. Its main branches are in London and New York.
Module 3
Human Rights and the Indian Constitution – The Human Rights Act, 1993 – The National
Human Rights Commission – Establishment, Powers and Functions of the Human Rights
Commission.
HUMAN RIGHTS AND THE INDIAN CONSTITUTION
The constitution of India, which came into force on 26th January 1950, is almost the most
comprehensive constitution in the world. The preamble, Part III of the constitution consisting
of fundamental rights part IV comprising Directive principles of State Policy, Part IV(A)
contains Fundamental Duties, constitute the human rights framework in our constitution.
The framers of the Indian Constitution were very much influenced by the concept of human
rights contained in the Universal Declaration of Human Rights and guaranteed many of those
rights in our constitution part III and part IV, though separate, carry the common theme of
human rights. When Human rights are guaranteed by a written constitution they are known as
fundamental rights. Fundamental rights are the modern name for what has been traditionally
known as natural rights. They are fundamental because an ordinary legal right is enforced by
the ordinary law of the land and may be changed by the legislature of the country, but the
fundamental rights cannot be altered in the same way. It can be changed only by amending
the constitution itself. Fundamental rights are enforceable against the state. Pundit Jawaharlal
Nehru has said that "a fundamental right should be look upon, not from the point of view of
any particular difficulty of the movement but has something that you want to make permanent
in the constitution”.
Extent of Human Rights Standards Incorporated under the Constitution of India
The Constitution of India guarantees Fundamental Rights, which can be classified into the
following categories. Right to Equality (Articles 14-18), Right to Freedom (Articles 19-22),
Right against Exploitation (Articles 23-24), Right to Freedom of Religion (Articles 25-28),
Cultural and Educational Rights (Articles 29-30), and Right to Constitutional Remedies
(Article 32).
The just understanding and appreciation of the extent of human rights standards incorporated
in the Constitution needs consideration of the International Bill of Human Rights. For this
purpose, the Optional Protocols 1 to the ICCPR and the ICESCR have been excluded as they
deal with specific procedures relating to individual communications. Optional Protocol 2 to
the ICCPR is also excluded because it deals with abolition of death penalty, which India has
not ratified. The discussion on the extent of human rights standards incorporated under the
Constitution of India starts with the examination of civil and political rights followed by the
economic, social and cultural rights enumerated in the UDHR, ICCPR, ICESCR and the
Constitution of India.
Civil and Political Rights
The UDHR, among others, guarantees the right to life, and liberty. The ICCPR, as an
improvisation to the said right guaranteed by the UDHR provides for inherent right to life that
cannot be arbitrarily deprived. According to the ICCPR, right to life is to be protected by law
and any penalty affecting life can only be carried out pursuant to a final judgement rendered
by a competent court. Further, Persons sentenced to death have the right to seek pardon or
commutation of the sentence. Therefore, amnesty, pardon or commutation of the sentence of
death may be granted in all cases. Most importantly, the ICCPR holds that while awarding a
death sentence due recognition to the tender age of the person and motherhood must be given,
and in fact, it goes to the extent of declaring that the sentence of death shall not be imposed
for crimes committed by persons below eighteen years of age and shall not be carried out on
pregnant women. In India, the right to life and liberty is expressly recognized under Article
21 and the provision for seeking pardon or commutation of the offence as provided by the
ICCPR is recognized under Articles 72 and 161 of the Constitution, which empowers the
President and the Governor, respectively, to grant pardon, commute, respite or remit the
sentences. As to the right against sentence of death for the crimes committed by persons below
eighteen years of age and pregnant women, the Constitution does not expressly protect these
rights. However, the Code of Criminal Procedure 1973 gives recognition to the right against
sentence of death of pregnant women. The Juvenile Justice Act protects the case of persons
below the age of eighteen years from imposition of death penalty.
A right against slavery or servitude, slavery and the slave trade are guaranteed by the UDHR
including its prohibition in all forms. Similarly, Article 8 of the ICCPR provides rights against
slavery and the slave trade in any of its forms. In addition, the ICCPR holds that no one shall
be held in servitude and no one shall be required to perform forced or compulsory labour. In
India, Article 23 of the Constitution states that traffic in human beings and beggar and other
similar forms of forced labour is prohibited. However, this provision in the Constitution does
not make use of the expression ‘slavery’ or ‘servitude’, as mentioned in the International Bill
of Human Rights. Forced labour and beggar in a wider sense may be seen as specie of slavery.
The UDHR provides for equality before the law and equal protection of the law, without any
discrimination. This right is protected by Article 26 of the ICCPR, which in addition states
that the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status. In India,
Articles 14 and 15 of the Constitution recognize the right to equality before law, equal
protection of laws and right against discrimination.
The UDHR provides for a right to an effective remedy by the competent national tribunals for
acts violating the Fundamental Rights granted to him by the constitution or by law. Article 3
(a) of the ICCPR recognizes this right in the form of an obligation of all States Parties. In
India, Articles 32 and 226 of the Constitution guarantee a right to move the Supreme Court or
the High Court, respectively, for the purpose of enforcement of Fundamental Rights.
The right against arbitrary arrest and detention is recognized by the UDHR. Similarly, but in
addition to the UDHR, Article 9 of the ICCPR states that everyone has the right to liberty and
security of person and no one shall be subjected to arbitrary arrest or detention, and that no
one shall be deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law. Article 9 of the ICCPR also confers a right to the arrested
to be informed, at the time of arrest, of the reasons for his arrest or charges levied against him.
Additional safeguard to arrested or detained persons on a criminal charge is provided by the
Covenant in the following manner. It provides that a detained or arrested person shall be
brought before a judge or other officer authorized by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release. It shall not be the general rule that
persons awaiting trial shall be detained in custody, but release may be subject to guarantees
to appear for trial. The Article further provides for a right to take proceedings before a court
on the lawfulness of his detention and the victim of unlawful arrest or detention shall have an
enforceable right to compensation. In India, joint reading of Articles 21 and 22 would suggest
that most of the rights provided against arrest and detention is also recognized under the
Constitution. Besides, Sections 50, 50-A, 56 and 57 of the Code of Criminal Procedure 1973
supplements the conferrals found in the Constitution. These Sections deal with the
abovementioned protections against arbitrary arrest. However, it must be noted that a right to
compensation in cases of arbitrary arrest and detention is not explicitly found in the
Constitution.
The UDHR states that everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence. No one shall be held guilty of any penal offence because
of any act or omission that did not constitute a penal offence, under national or international
law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time the penal offence was committed. Similarly, Paras 2 and 3 of
Article 14 of the ICCPR states that any person charged with a criminal offence has the right
to be presumed innocent until proved guilty in accordance with law and in the determination
of any criminal charge, everyone shall be entitled to the following minimum guarantees, in
full equality:
(a) “To be informed promptly and in detail in a language which he understands of the nature
and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate
with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of
his own choosing; to be informed, if he does not have legal assistance, of this right; and to
have legal assistance assigned to him, in any case where the interests of justice so require, and
without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language
used in court; and
(g) Not to be compelled to testify against himself or to confess guilt.”
In addition, this provision also provides recognition to the tender age of the accused, which
obligates the States to provide for different treatment to such persons with intent to promote
their rehabilitation. This apart, without discrimination, every convicted person has the right to
get his conviction reviewed by a higher tribunal in accordance with law. Upon such review,
when a conviction has been reversed or the convict has been pardoned on the ground that there
has been an injustice, the victim of punishment shall be compensated according to law. Lastly,
Article 14 of the ICCPR holds that no one shall be liable to be tried or punished again for the
same offence for which he has already been finally convicted or acquitted in accordance with
the law. Article 15 of the Covenant on Civil and Political Rights confers a right to be tried and
punished in accordance with law and right against higher penalty. According to the latter part
of the provision, no higher punishment can be inflicted upon any person than what was
prescribed by law, which was in force at the time of commission of the offence, however, a
change in law that reduces sentence, it can benefit the offender. Under the Constitution, there
is no express provision to consider a person as innocent until his guilt is proven. Nevertheless,
the Courts in India have been referring to the international human rights instruments and
giving effect to this rule. Article 22 (1) to (4) safeguards the rights of the arrested persons and
Articles 20 (1) and (2) of the Constitution protects convicts against higher penalty and double
jeopardy.
Article 13 of the UDHR states that everyone has the right to freedom of movement and
residence within the borders of each State. Article 12 of the ICCPR states that everyone
lawfully within the territory of a State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence. Everyone shall be free to leave any country,
including his own. Article 12 of the ICCPR also provides that the rights guaranteed by it shall
not be subject to any restrictions except those that are provided by law or as are necessary to
protect national security, public order, public health or morals or the rights and freedoms of
others and are consistent with the other rights recognized in the ICCPR and no one shall be
arbitrarily deprived of the right to enter his own country. In India, Article 19 (1) (d) and (e)
of the Constitution recognizes the freedom of movement and residence, which may be
restricted in the interests of the general public and for the protection of the interests of any
Scheduled Tribes. (Article 19 (5)). Right to leave the country is not expressly recognized
under the Constitution.
Article 17 of the UDHR provides for a right to own property alone as well as in association
with others. This right cannot be arbitrarily deprived. Interestingly, right of property is not
recognized under the ICCPR except as grounds specified for prohibition of discrimination.
Whereas, Article 300-A of the Constitution guarantees the right of property to every person
which cannot to be deprived save by authority of law. This recognition is in the form of
constitutional right, which earlier was a Fundamental Right under Article 19 (1) (f) that was
omitted by the Constitution (Forty Fourth) Amendment Act, 1978.
According to Article 18 of the UDHR, everyone has the right to freedom of thought,
conscience and religion, which includes freedom to change his religion or belief, and freedom,
either alone or in community with others and in public or private, to manifest his religion or
belief in teaching, practice, worship and observance. According to Article 18 of the ICCPR,
everyone has the right to freedom of thought, conscience and religion, which includes freedom
to have or to adopt a religion or belief of his choice, and freedom, to manifest his religion or
belief in worship, observance, practice and teaching. This freedom would ensure that no one
is subject to coercion to adopt a religion or belief that is against his choice. Further, the
limitations are clearly laid down in the same provision, according to which, the freedom to
manifest one's religion or beliefs may be subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health, or morals. In addition, Article 27
of the ICCPR guarantees ethnic, religious or linguistic minorities the right to enjoy their own
culture, to profess and practice their own religion, or to use their own language. In India,
Articles 25-28 of the Constitution recognize the freedom of religion which is subjected to
public order, morality, health and other provisions of Part III of the Constitution. Indeed,
Articles 29 and 30 of the Constitution109 are the corresponding provisions for Article 27 of
the ICCPR.
Articles 19 of the UDHR and that of the ICCPR confer the right to freedom of opinion and
expression, where the latter adds right to hold opinions without interference. Under the
Constitution of India, Article 19 (1) (a), the freedom of speech and expression is guaranteed
to all citizens. This freedom is not absolute as it is subjected to reasonable restrictions in the
interests of the sovereignty and integrity of India, the security of the State, friendly relations
with Foreign States, public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence as specified under Article 19 (2).
Article 20 (1) of the UDHR provides for the freedom of peaceful assembly and association.
Article 21 of the Covenant on Civil and Political Rights recognizes the right of peaceful
assembly. Besides, Article 22 of the ICCPR provides for the right to freedom of association
with others, including the right to form and join trade unions for the protection of interests.
Like Article 21, the freedom guaranteed by Article 22 of the ICCPR is subjected to restrictions
that are prescribed by law and which are necessary in a democratic society in the interests of
national security or public safety, public order, the protection of public health or morals or the
protection of the rights and freedoms of others. In the context of India, Article 19 (1) (C) of
the Constitution guarantees to all citizens the freedom to form or join association, trade unions
or co-operative society, which may be restricted only on the grounds of interests of the
sovereignty and integrity of India or public order or morality.
The UDHR proclaims that everyone has the right to take part in the governance of his country,
directly or through freely chosen representatives, and that everyone has the right of equal
access to public service in his country. The will of the people shall be the basis of the authority
of the Government that shall be expressed in periodic and genuine elections, which shall be
conducted by universal, equal suffrage and by secret vote or by equivalent free voting
procedures. The ICCPR not only recognizes the right to take part in governance of the country
but also states that every citizen shall have the right and the opportunity, without any
distinctions to take part in the conduct of public affairs, directly or through freely chosen
representatives; to vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors; and to have access, on general terms of equality, to
public service in his country. In India, Articles 325 and 326 of the Constitution deal with
elections in a manner that is consistent with the principles of the UDHR and the ICCPR.
Besides, Article 16, which provides for equality of opportunity in matters of public
employment, read with Articles 311 and 312 of the Constitution deals with All India Services.
Right to vote is not explicitly recognized in the Constitution.
Economic, Social and Cultural Rights
Article 1 of the UDHR holds that all human beings are born free and equal in dignity and
rights. According to Article 1 of the UDHR human beings are endowed with reason and
conscience with which they should act towards one another in a spirit of brotherhood. The
latter part of this provision is dealt by the Constitution under Article 51A (e), in the form of a
Fundamental Duty.
Article 2 of the ICESCR obligates the States to ensure that all measures to realize the rights
recognized in the Covenant must be taken progressively and they are based on the principle
of non-discrimination. Among them, the first happens to be a right guaranteed by Article 3 of
the ICESCR. It provides that States must ensure equal right to men and women in the
enjoyment of all economic, social and cultural rights set forth in the Covenant. Similarly, in
India Article 38 (2) of the Constitution holds that the State must strive to minimize the
inequalities in income, and endeavor to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but also amongst groups of people residing in
different areas or engaged in different vocations. This would suggest that the underpinning on
which Article 38 is standing is on the principle of non-discrimination.
Article 6 of the ICESCR recognizes the right to work. In India, Article 41 of the Constitution
provides that the State, within the limits of its economic capacity and development, make
effective provision for securing the right to work. Article 41 proceeds to address education
and public assistance in cases of unemployment, old age, sickness and disablement, and in
other cases of undeserved want.
Under Article 7 of the ICESCR, everyone has the right to the enjoyment of just and favourable
conditions of work. This right ensures remuneration which provides all workers, as a
minimum, with fair wages and equal remuneration for work of equal value without distinction
of any kind, in particular women being guaranteed conditions of work not inferior to those
enjoyed by men, with equal pay for equal work; a decent living for themselves and their
families in accordance with the provisions of the Covenant; safe and healthy working
conditions; equal opportunity for everyone to be promoted in his employment to an
appropriate higher level, subject to no considerations other than those of seniority and
competence; rest, leisure and reasonable limitation of working hours and periodic holidays
with pay, as well as remuneration for public holidays. In India, most of these standards are
recognized under Article 39 of the Constitution.
Article 8 of the ICESCR recognizes the right to form trade unions and join the trade union of
one’s choice. This right would help the individuals in promoting and protecting their
economic and social interests, which is also recognized under Article 19(1) (C) of the
Constitution.
Article 9 of the ICESCR guarantees the right of everyone to social security. The Indian
Government in accordance with the directives contained in Article 38 and Article 39 of the
Constitution bears the primary responsibility for developing appropriate system by which it
could provide protection and assistance to its workforce. Since the workforce in India is
increasing, its protection is aimed by various legislations.
Article 10 of the ICESCR holds that special protection should be accorded to mothers before
and after childbirth. Article 10 of the ICESCR further provides that during such period,
working mothers should be accorded paid leave or leave with adequate social security
benefits. Children and young persons should be protected from economic and social
exploitation. Their employment in work harmful to their morals or health, dangerous to life,
or likely to hamper their normal development should be punishable by law. States should also
set age limits below which the paid employment of child labour should be prohibited and
punishable by law. Further Article 11 of the ICESCR deals with the right of everyone to an
adequate standard of living for himself and his family, including adequate food, clothing and
housing, and to the continuous improvement of living conditions, which is recognized under
Article 43 of the Constitution.
Article 12 of the ICESCR provides for a right of everyone to the enjoyment of the highest
attainable standard of physical and mental health. States must take steps for the reduction of
the stillbirth-rate and of infant mortality and for the healthy development of the child; the
improvement of all aspects of environmental and industrial hygiene; the prevention, treatment
and control of epidemic, endemic, occupational and other diseases. In addition, States must
create necessary conditions which would assure to all, medical service and medical attention
in the event of sickness. In India, Articles 47 and 48-A of the Constitution holds the State
responsible for promoting public health and for providing and maintaining cleanly
environment for the people. On recall, it would be clear that Article 12 of the ICESCR in
comparison to Articles 47 and 48-A of the Constitution is specific. This would imply that
provisions of the Constitution are either abstract or general in nature, and alternatively Articles
47 and 48-A of the Constitution may be seen as provisions having wider amplitude.
Article 13 of the ICESCR provides that right to education; primary education shall be
compulsory and available free to all. In addition, Article 26 (1) of the ICESCR states that
everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible
to all based on merit. In India, right to education is recognized in Articles 41, 45 and 21-A of
the Constitution.
Article 15 of the ICESCR states that everyone has the right to take part in cultural life, to
enjoy the benefits of scientific progress and its applications, to benefit from the protection of
the moral and material interests resulting from any scientific, literary or artistic production of
which he is the author. Further, it provides that the States must strive to achieve the full
realization of this right and it shall include those necessary for the conservation, the
development and the diffusion of science and culture. Under the Constitution of India, clauses
(e), (f), (h) and (j) of Article 51 A deals with the protections addressed by Article 15 of the
ICESCR.
As to the extent of recognition given to economic, social and cultural rights under the
Constitution, it is said, “The catalogue of economic and social rights in the Indian Constitution
is extensive as that of the international instruments, though rights are not enforceable through
judicial process. Efforts have been made to achieve some of these rights through legislation.”
The economic social and cultural rights require legislative and executive initiatives.
Distinction between Fundamental Rights and Human Rights Standards
The fundamental distinction between Human rights standards and the Fundamental Rights
lies in the addresses, that is to whom those rights are available. Since the “Fundamental
Rights” relates to a system, they imply affiliation. This would suggest that affiliation by means
of ‘citizenship’ to a system of governance might be required. The Fundamental Rights are
limited to what is prescribed by the Constitution. On the other hand, human rights are
universal in nature and they are more to do with natural rights and natural duties. Human
rights are for all human beings with no requirement as to citizenship or nationality. In the case
of Fundamental Rights, certain Fundamental Rights are exclusively available to citizens,
whereas some other rights are extended to aliens as well.
It is generally observed that the Civil and Political Rights (CPR) are protected under Part-III,
whereas, the Economic, Social and Cultural Rights (ESCR) have been incorporated under
Part-IV of the Constitution. However, the fact that Part III is made enforceable while Part IV
is non-enforceable, it highlights the deviation from international standards where such
distinction in enforceability of CPR and ESCR is not found under Covenants on human rights,
except that ESCR is said to be programmable in nature. Non-enforceability of Part-IV does
not stand for malafide intention of the government.
Both human rights and the Fundamental Rights can be suspended during the times of national
emergency. However, the important distinction between the two is found in the way the IHRL
and the Constitution classifies rights as ‘derogable’ and ‘non- derogable’. That is, Article 4
(2) of the ICCPR proclaims the right to life, prohibition of torture and cruel, inhuman or
degrading treatment or punishment, prohibition of slavery, slave trade and servitude, right
against imprisonment on ground of inability to fulfil a contractual obligation, non-retroactivity
of criminal law, right to recognition as a person before law, freedom of thought, conscience
and religion, and right against discrimination based on race, colour, sex, language, religion or
social origin, cannot be derogated even during a serious emergency situation. Whereas, in
India, Article 359 of the Constitution provides that except Articles 20 and 21, namely
protection in respect of conviction for offences and right to life and liberty, any other
Fundamental Right can be suspended during national emergency. If the national emergency
is proclaimed on the grounds of ‘war’ or ‘external aggression,’ then all six fundamental
freedoms guaranteed by Article 19 gets suspended automatically, without a proclamation by
the President of India in this regard (Article 358). This apart, Article 4 of the ICCPR is not
applicable to all types of public emergencies. Only the threat to life of the nation or to its very
existence may be the ground for derogation. In India, Article 352 of the Constitution deals
with national emergency and according to it, war, external aggression or armed rebellion are
the grounds for proclamation of a national emergency. It is said, “The question whether there
exists a real threat to the security of India or not is to be decided by the executive. The ICCPR
apparently permits this, but if there is no real threat to the life of the nation as such and if an
attempt is made by the executive to misuse the powers, the right of derogation recognised by
the Covenant will not be available. In case of India, the satisfaction of the executive that there
is a threat to the security of India is not beyond judicial review”.
Under the International Human Rights Law, the States can resort to preventive detention only
during emergency. On the contrary, in India, the State can resort to preventive detention both
in emergency and in peacetimes. This establishes the distinction in circumstances in which
deprivation of certain essential rights like right to liberty of a person can be affected. The
Indian Government has passed a number of enactments which authorises preventive detention
(further discussion on the same is held in Chapter VII under ‘Constitutionally Specifically
Incorporated Rights and the Supreme Court’), though the safeguards are made available
against arbitrary detention.
Furthermore, a theory of human rights, in itself, “concludes by bringing a deontological claim,
concerning that which we owe to human beings, and which is linked at least to a moral theory
and probably also to an anthropology. A theory of “fundamental rights” by contrast obliges
us to focus also on that which is capable of contributing to the existence of a society (or also
to recommend them as that which could or should do so): this involves analysis or
prescriptions, which are not expressed in deontological terms, but in ethical, institutional,
politic al or teleological terms. Fundamental Rights must be concretised just as human rights
must be considered in the abstract”.
Next distinction lies in the fact that human rights are protected globally and this involves many
human rights implementation mechanisms, such as, reporting procedure by States, inter-State
communications, Conciliation, individual communication, UPR, and other procedures.
Fundamental Rights are enforceable by the Supreme Court or the High Court in accordance
with the constitutional provisions.
It is pertinent to note that human rights are relatively new concept, and has emerged post-
World War II, while Fundamental Rights are protected by constitutions of various countries
is much of age. Also, there is no consensus on universal human rights’ content and theories
but Fundamental Rights are specific and have the status of basic feature of the Constitution as
recognised by the Supreme Court of India.
One more distinction is that human rights like, right to legal aid, right to work, equal pay for
equal work are recognised under Part IV and not under Part III of the Indian Constitution.
Few other human rights like- right to privacy, right to cleanly environment, right to shelter,
right to found a family, and speedy trial, inter alia, are enumerated neither under Part-III nor
under Part-IV of the Constitution of India. Therefore, it is observed, all Fundamental Rights
are human rights but not vice-versa.
Constitutionally not Specifically Incorporated Human Rights Standards and its

Consequences
This part of the Chapter deals with two aspects. The first aspect deals with the list of rights
that are not-specifically enumerated in the Constitution, and the second aspect deals with the
consequences arising out of such non-incorporation of certain international human rights
standards.
The framers of the Indian Constitution have not given explicit recognition to certain
international human rights standards. They are known as ‘constitutionally not specifically
incorporated human rights’, ‘unspecified rights’, or ‘un-enumerated rights’. They are as
follows:
First, the UDHR states that everyone has the right to life, liberty and security of person. The
Indian Constitution does not recognise ‘security of person’ directly and as a result, it is left to
one’s interpretation to read it as implied in any of the provisions of either Part III or Part IV.
Second, right against slavery or servitude, slavery and the slave trade in all their forms is
guaranteed by the UDHR. The Indian Constitution does not recognise protection against
slavery, slavery trade or servitude.
Third, Article 5 of the UDHR states that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. Right against torture or cruel, inhuman or
degrading punishment or treatment is not expressly provided by the Constitution.
Fourth, Article 7 of the UDHR guarantees a right against discrimination and any incitement
to such discrimination. The later part of this provision, namely, incitement to discrimination
is not expressly provided by any of the provisions of the Indian Constitution.
Fifth, Article 9 of the UDHR protects persons from arbitrary arrest, detention or exile. It is
observed that ‘right against exile’ is not recognised by the Constitution.
Sixth, right to a fair and public hearing before the independent and impartial tribunal in the
determination of one’s rights and obligations and of any criminal charge is guaranteed by the
UDHR. The Constitution has not expressly conferred such a right.
Seventh, Article 12 of the UDHR guarantees a right against arbitrary interference with one’s
privacy, family, home or correspondence, and attacks upon one’s honour and reputation.
Further, it provides that everyone have the right to the protection of the law against such
interference or attacks. Right against arbitrary interference with one’s privacy, family, home
or correspondence, and attacks upon one’s honour and reputation is unspecified in the
Constitution.
Eighth, Article 13 (2) of the UDHR guarantees the right to leave any country, including his
own, and to return to his country. This is not expressly recognised by the Constitution.
Ninth, Article 16 of the UDHR states that men and women of full age, without any limitation
due to race, nationality or religion, have the right to marry and to found a family. They are
entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall
be entered into only with the free and full consent of the intending spouses. The family is the
natural and fundamental group unit of society and is entitled to protection by society and the
State. These important standards are un- enumerated in the Constitution.
Tenth, Article 19 of the UDHR holds that everyone has the right to freedom of opinion and
expression, which includes freedom to hold opinions without interference and to seek, receive
and impart information and ideas through any media regardless of frontiers. The right to seek,
receive information and ideas is not recognised in the Constitution.
Eleventh, Article 20 (2) of the UDHR provides that no one may be compelled to belong to an
association, which is not recognised by the Constitution. Besides, Article 25
(2) of the UDHR holds that motherhood and childhood are entitled to special care and
assistance. All children, whether born in or out of wedlock, shall enjoy the same social
protection. The last aspect of this provision, that is, all children, whether born in or out of
wedlock, shall enjoy the same social protection is not expressly recognised by the
Constitution.
Twelfth, Article 26 (2) of the UDHR holds that education shall be directed to the full
development of the human personality and to the strengthening of respect for human rights
and fundamental freedoms. It further provides that the right to education shall promote
understanding, tolerance and friendship among all nations, racial or religious groups, and shall
further the activities of the United Nations for the maintenance of peace. In matters of
education, parents have a prior right to choose the kind of education that shall be given to their
children. In India, though the Constitution was amended in 2002 to include the right to
education as a Fundamental Right in Article 21-A, but it has not stated the purpose of the
revered right in the aforementioned manner, which perhaps was the ideal way for the
Government of India.
Thirteenth, Article 1 of the ICCPR guarantees the right of self-determination.
However, the same is not recognised under the Constitution.
Fourteenth, Article 10 of the ICCPR provides that all persons deprived of their liberty shall
be treated with humanity and with respect for the inherent dignity of the human person.
Humane treatment of prisoners with respect to their inherent dignity is not expressly
mentioned under the Constitution.
Fifteenth, Article 11 of the ICCPR provides protection from imprisonment in the case of
inability to fulfil a contractual obligation, which is not addressed by the Constitution.
Sixteenth, Article 14 of the ICCPR declares that the press and the public may be excluded
from all or part of a trial for reasons of morals, public order or national security in a democratic
society, or when the interest of the private lives of the parties so requires, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at
law shall be made public except where the interest of juvenile persons otherwise requires or
the proceedings concern matrimonial disputes or the guardianship of children. This is not
specifically addressed by the Constitution, though in the matrimonial cases, or cases involving
the juveniles or in offences against women such as rape, the court in its discretion may decide
to hold in-camera proceedings.
Seventeenth, Article 14 of the ICCPR also recognises when a conviction has been reversed or
the convict has been pardoned by the appellate tribunal shows that there has been an injustice
to the convict, such person shall be compensated according to law. No Fundamental Right in
the Constitution explicitly deals with right to compensation for such injustice.
Eighteenth, Article 9 of the ICESCR guarantees the right of everyone to social security,
including social insurance. Social insurance is not addressed by the Constitution.
Nineteenth, right of protection and assistance to the family for its establishment and while it
is responsible for the care and education of dependent children. Marriage must be entered into
with the free consent of the intending spouses. Para 3 of this provision provides that “special
measures of protection and assistance should be taken on behalf of all children and young
persons without any discrimination for reasons of parentage or other conditions.”The
Constitution has not given recognition to these standards.
Twentieth, Article 11 of the ICESCR obligates the States to recognise the right of everyone
to be free from hunger, and to take, individually and through international cooperation, the
measures, including specific programmes, which are needed to improve methods of
production, conservation and distribution of food by making full use of technical and scientific
knowledge, by disseminating knowledge of the principles of nutrition and by developing or
reforming agrarian systems in such a way as to achieve the most efficient development and
utilization of natural resources. The same is not guaranteed by the Constitution.
Twenty-First, right to travel abroad, right to privacy, right against solitary confinement, right
to human dignity, right to speedy trial, right against custodial violence, right against death
penalty, right to health care and medical assistance, right to shelter, right against handcuffing,
and right to pollution free environment, are not recognised by the Constitution in the guise of
specified rights.
From this list, it is clear that certain international human rights standards are not recognised
by the Constitution. This is a serious deficit in giving recognition to human rights and thus it
has produced some disturbing consequences.
Firstly, the non-recognition to these rights would imply that there would be no binding
obligation for the State or its authorities to protect the constitutionally not specifically
incorporated human rights, which would undoubtedly cause hardship to the people.
Secondly, it is pertinent to note that in addition to non-enumeration of certain human rights
standards, India has not ratified the Convention Against Torture, and it is also not a Party to
the Conventions on the Rights of Migrant Workers and their Families, on Refugees and
Stateless Persons, the ILO Conventions on the abolition of Child Labour, on the rights of
Indigenous and Tribal People, and Optional Protocol to CEDAW and Optional Protocols 1
and 2 to the ICCPR. Also, the Government’s persistent refusal to cooperate with the Human
Rights Council’s special procedures concerning torture, the treatment of human rights
defenders, contemporary forms of discrimination, extrajudicial, summary and arbitrary
executions, sale of children, child prostitution and child pornography, and arbitrary detentions
have resulted in routine atrocities against children, women, instances of human trafficking,
deaths in police custody, atrocities against Dalits, fake encounter killings and disappearances
of persons. These are also recorded in reports, submitted by the Indian Government, certain
civil societies (mentioned below) and the National Human Rights Commission, to the Human
Rights Council. These reports highlight the following issues relating to the enjoyment of
human rights and patterns of violations that exist in India.
The National Human Rights Commission (NHRC) has reported that thirty-five percent of the
complaints that it receives annually are against the police. This shows that police frequently
violate the human rights of the people and the custodial justice remains a problem. Non-
mention of a right against torture, cruel or inhuman and degrading treatment in the
Constitution and non-ratification of the Convention Against Torture has made the armed
forces including police a powerful authority to decide on the nature and the extent to which a
particular nature of treatment to be accorded to individuals who are in their custody. The
report of the NHRC further indicates that jails are overcrowded and remain unhygienic.
Almost sixty-seven percent of prisoners are under-trial, who are unable to raise bail, or
confined far longer than they should be because of the delay in disposal of cases and backlog
of cases. This would suggest that the right to speedy trial is given lesser importance in India.
The Food First Information and Action Network, a human rights organisation in India, in its
report has stated that “difficulties remain in enforcing existing legislation and in ensuring the
implementation of court decisions and access to justice for the poor”. This certainly indicates
that right to good governance is not effectuated in India.
Further, it is important to note that the delay in implementation of all of the Directive
Principles of State Policy has led to denial and deprivation of certain economic, social and
cultural rights which in turn has resulted in violations of the right to life through instances of
suicide, hunger and starvation. In fact, staggering 89,362 farmers have committed suicide
between 1997 and 2005. Ten years later, the Government has successfully continued to fail in
bringing down the number of farmer suicides. On the contrary, there is increase in
feminization of poverty especially with males committing suicide.
The Food First Information and Action Network indicated through its report that the necessary
shift from Public Distribution System to Targeted Public Distribution System in 1997 has not
contributed to addressing the problem of hunger and starvation of millions of Indians. Poverty
itself is not plainly defined by the Government and the criterion to decide which people are
below the poverty line is unclear. Similarly, the Asian Legal Resource Centre, an NGO having
General Consultative status with the Economic and Social Council of the United Nations,
observed that the management of distribution system suffers from corruption, particularly
black-marketing, as well as caste prejudices. It also reported that starvation and
malnourishment affect about fifty-three percent of India’s entire population.141 This would
imply that right to food and right against hunger are not fully respected by the Government of
India. The Food First Information and Action Network has observed that lack of access to
clean drinking water and water for irrigation due to pollution of natural resources including
water and diversion of water for industrial purposes and steps towards privatisation of water
are some of the threats to the right to water of the people in India
Thirdly, the fact that India has not given recognition to the aforementioned international
human rights standards imply that it makes it a country that has inadequately recognized
human rights, which in turn produces important consequence that is it results in deprivation
of the individuals’ right to have all round development. This is because every human right
provides a dimensional growth to individuals, if individuals enjoy all international human
rights, as they are interdependent, then only one can be a well-rounded human being. If certain
of the human rights are not made available to the individuals then they are deprived of having
such all-round development.
Fourthly, the declaration of controversial 1975 national emergency by the then ruling
Government has set no parallel to the use of preventive detention laws depriving the rights of
many in an arbitrary manner. The South Asia Forum for Human Rights has added that the
chronic use of anti-terrorist laws, preventive detention laws and the Armed Forces Special
Powers Act, 1958 have created a situation where the normal methods of 'investigation' have
been replaced by disappearances, illegal detention, custodial torture, sexual violence against
women and summary executions disguised as armed encounters.
Lastly, the distinction between Article 4 of the ICCPR and Articles 358 and 359 of the
Constitution, which deals with derogation of rights in emergency, lead to lesser protection of
the Fundamental Rights enshrined by the Constitution. The consequences that have emerged
from not giving recognition to all international human rights standards needs to be effectively
tackled by the State at the earliest.
Conclusion
The Constitution is inspired by the UDHR and accordingly it has incorporated certain civil
and political rights as Fundamental Rights, and economic, social and cultural rights as
Directive Principles of State Policy. The Fundamental Rights cast negative obligations on the
State and the Directive Principles of State Policy imposes affirmative obligations. The
Protection of Human Rights Act, 1993 is a special legislation in India that aims at better
protection and promotion of human rights by establishing human rights institutions and the
court. However, the Constitution and the aforementioned Act if taken together, still they
account for not giving recognition to certain important international human rights standards
such as right to privacy, right to compensation, right to fair trial, right to dignity, right to
livelihood, right to decent environment, right to found a family, right against inhuman and
degrading treatment. Consequently, poverty, torture, disappearance of persons, fake
encounters, and other important sufferings of humanity as discussed have continued to exist.
India and the Universal Declaration
India was a signatory to the Universal Declaration of Human Rights. A number of fundamental
rights guaranteed to the individuals in Part III of the Indian Constitution are similar to the
provisions of the Universal Declaration of Human Rights. The following chart makes it very
clear.
Table 1: Similarities between Universal Declarations of Human Rights and Indian Constitution
No Name of Right Universal Indian

Declaration Constitution
1 Equality before law Article 07 Articles 14
2 Equality of opportunity in Article 21(2) Article 16(1)
matters of public employment
3 Protection of certain rights Article 19 Article 19(1) A
regarding freedomsof speech, etc,
4 Protection in respect of Article 11(2) Article 20 (1)
conviction for offences
5 Protection of life and personal liberty Article 9 Article 21
6 Prohibition of trafficking in Article 14 Article 23
human beings and forced labor
Freedom of conscience and free
7 Profession practice and propagation of Article 18 Article 25 (1)
religion
8 Protection of Interests of minorities Article 22 Article 29 (1)
9 Right of minorities to establish and Article 20(3) Article 30(1)
administer Educational Institutions
Not a fundamental right
10 Right to property Article 17 (2) after amendment 44, but now
in Article 300A
11 Remedies for enforcement of rights Article 8 Article 32
conferred by this part
Table 2: Similarities between Covenant on Civil and Political Rights and Indian Constitution
Rights Convention on Civil Indian Constitution

And Political Rights
Prohibition of trafficking in Article 8(3) Article 23
human beings and forced labor
Equality before law Article 14(1) Article 14
Prohibition of discrimination on
ground of religion, race, caste, sex or place Article 26 Article 15
of birth
Equality of opportunity in Article 25(c) Article 16(1)
matters of public employment
Protection of certain rights Article 19(1, 2) Article 19
regarding freedom of speech
To assemble peaceably and Article 21 Article 19 (1b)
without arms
To form association or unions Article 22(1) Article 19(1c)
To move freely throughout Article 12 (1) Article 19(1d,e,g)
the territory of India
Protection in respect of Article 15(1) Article 20(1)(2)
conviction for offences Article 14 (7)
No person accused of any offence
shall be compelled to be a witness against Article 14(3g) Article 20(3)
himself
Protection of life and personal liberty Article 6 (1), Article 21
Article 9 (1)
Protection against arrest and Article 9 (2,3,4) Article 22
detention in certain cases
Freedom of conscience And
free profession, practice and propagation Article 18(1) Article 25
of religion
The table below shows that most of the economic, social and cultural rights proclaimed in the
Universal Declaration of Human Rights have been incorporated in part IV of the Indian
Constitution
Convention on Indian
economic, social Constitution
No Name of Right
and cultural rights
1 Equal pay for equal work Article 7a (1) Article39d
2 Provision for just and humane Article 7b Article 42

conditions of work and maternity relief
3 Right to work, to education and Article 6(1) Article 41
public assistance in certain cases
4 Opportunity for children Article 10 (3) Article 41f
5 Compulsory education for children Article 13 (2a) Article 45
6 Living wage, etc, for workers Article 7(a) (11) Article 43
Article 7 (d)
7 Nutrition and standard of living Article 11
WIDER IMPLICATIONS OF RIGHT TO LIFE
Our Apex Court has been expanding over the decades, the dimensions of Art 21 i. e. Right to
Life & Personal Liberty.
In F. C. Mullin vs. The Administrator, Union Territory of Delhi & others (1981 2 SCR
516) Justice Bhagwati observed:
"We think that the right to life includes the right to live with human dignity and all that goes
with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing oneself in diverse forms freely moving about and
mixing and mingling with fellow human beings........Every act which offends against or impairs
human dignity would constitute deprivation protanto of this right to life and it would have to
be in accordance with reasonable, fair and just procedures established by law which stands
the test of other fundamental rights."
The expression 'life' does not mean animal existence. Right to life guaranteed under Art. 21 of
the Constitution have certain positive aspects and as such subject to well-organised limitation
apart from obligation of the State not to deprive a person of his life except in accordance with
a valid law.
It is heartening to note that the Supreme Court has now been widening the scope of Art. 21,
though earlier in A. K. Gopalan vs. State of Madras (AIR 1950 SC 27), the Court had taken
very narrow view of Art. 21.
Life in its expanded horizons today includes all that give meaning to a man's life, including his
tradition, culture and heritage, and protection of that heritage in its full measure would certainly
come within the encompass of an expanded concept of Article 21 of the Constitution.
RIGHT TO PRIVACY AS A PART OF ART. 21

Initially the Supreme Court refused to allow the right to privacy as a part of Art. 21 in Kharak
Singh vs. State of U.P. (AIR 1963 SC 1295). In this case the petitioner's name was recorded
in a History sheet maintained by the police on the basis of accusations and the movement of
the petitioner was under surveillance. Ayyangar J. speaking for the majority struck down clause
(b) of regulation 236 of the U. P. Police Regulations authorising "domiciliary visits" as
violative of Article 21 of the Constitution as the said administrative regulations were not
backed by authority of any legislation and rejected rest of the challenge to the above referred
regulations. In the majority judgement, Ayyangar J. held as under:—
"As already pointed out, the right of privacy is not a right guaranteed under our Constitution
and therefore the attempt to ascertain the movements of an individual which is not merely a
manner in which privacy is invaded is not an infringement of a fundamental right guaranteed
by part III."
The Supreme Court has, however, subsequently modified its views & has now recognised 'right
to privacy' as a part of Art. 21. In State of Maharashtra and another vs. Madhukar Narayan
Mardikar (AIR 1991 Supreme Court, 207) the delinquent police officer was dismissed on the
ground that he had visited the hutment of one Banubi on the night of 13th November 1965 all
alone in police uniform and had tried to ravish her. There was some evidence on record that
Banubi was unchaste woman. In the above referred judgement, Ahmadi J. speaking for the
Bench of the Hon'ble Supreme Court observed as under: —
"She was honest enough to admit that dark side of her life. Even a woman of easy virtue is
entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not
open to any and every person as and when he wishes.... She is equally entitled to the protection
of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown
overboard."
In Smt. Saroj Rani vs. Sudarshan Kumar Chadha (AIR 1984, SC 1962) the Supreme Court
over ruled the Judgement of High Court of Andhra Pradesh in the case of T. Sareetha vs.
Venkata Suppiah (AIR 1983 Andhra Pradesh, 356) and upheld constitutional validity of
Section 9 of Hindu Marriage Act, 1955 providing for remedy of restitution of conjugal rights.
The Andhra Pradesh High Court had declared that the said section was a savage and barbarous
remedy violating the right to privacy and human dignity guaranteed by Art. 21 of Constitution.
The learned Judge of High Court of Andhra Pradesh referred to the Scarman Commissions
report in England recommending abolition of the remedy.
The Supreme Court of India upheld Constitutional validity of section 9 of the Act on the ground
that the object of Section 9 of the Act was to preserve the institution of marriage.
The Hon'ble Mr. Justice Sabyasachi Mukarji speaking for the bench observed that Section 9 of
the Act served a social purpose as an aid to the prevention of breakup of marriage and must be
viewed in its proper perspective.
In 2017, a nine-judge bench of the Supreme Court has unanimously delivered its judgment
in Justice K.S. Puttaswamy (Retd.) v. Union of India holding that privacy is a
constitutionally protected right which not only emerges from the guarantee of life and personal
liberty in Article 21 of the constitution, but also arises in varying contexts from the other facets
of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part
III of the Indian constitution.
The bench has overruled its decisions in M.P. Sharma v Satish Chandra, District
Magistrate, Delhi(1954), rendered by a bench of eight judges and, in Kharak Singh v State of
Uttar Pradesh (1962), rendered by a bench of six judges, which contained observations that the
Indian constitution does not specifically protect the right to privacy.
RIGHT TO A CLEAN ENVIRONMENT AS A RIGHT TO LIFE

The right to live in a clean and healthy environment is not a recent invention of the higher
judiciary in India. The right has been recognised by the legal system and the judiciary in
particular for over a century or so. The only difference in the enjoyment of the right to live in
a clean and healthy environment today is that it has attained the status of a fundamental right
the violation of which, the Constitution of India will not permit. The judiciary has managed to
increase the ambit of Article 21 of the constitution of India, through various judicial
pronouncements, to include the Right to healthy and clean environment to be a fundamental
right under right to life.
M.C. Mehta vs. Union of India (Vehicular Pollution Case)
A matter regarding the vehicular pollution in Delhi city, it was held to be the duty of the
Government to see that the air did not become contaminated due to vehicular pollution. The
Apex court again confirming the right to healthy environment as a basic human right and stated
that the right to clean air also stemmed from Art 21 which referred to right to life. This case
has served to be a major landmark because of which lead-free petrol supply was introduced in
Delhi. There was a complete phasing out old commercial vehicles more than 5 years old as
directed by the courts.
T.N. Godavarman Thirumulpad v. Union of India
In this very recent case concerning conservation of forests, Justice Y.K. Sabharwal, held that,
considering the compulsions of the States and the depletion of forest, legislative measures have
shifted the responsibility from States to the Centre. Moreover, any threat to the ecology can
lead to violation of the right of enjoyment of healthy life guaranteed under Art 21, which is
required to be protected. The Constitution enjoins upon this Court a duty to protect the
environment.
Constitutional mandates on Protection of Environment
The Constitution of India originally adopted, did not contain any direct and specific provision
regarding the protection of natural environment. Perhaps, the framers of the Indian
Constitution, at that time, considered it as a negligible issue. However, in fact it contained only
a few Directives to the State on some aspects relating to public health, agriculture and animal
husbandry. These Directives were and are still not judicially enforceable. Some of the Directive
Principles of State Policy showed a slight inclination towards environmental protection i.e. Art
39(b), Art 47, Art 48 and Art 49 individually and collectively impose a duty on the State to
create conditions to improve the general health level in the country and to protect and improve
the natural environment. Later through constitutional amendment two specific provisions i.e.
Article 48-A and Article 51-A (g), have been added which imposes duty on state as well as the
citizens of the state to protect and conserve the environment.
Following a long course of active interpretation of constitutional and legislative clauses by the
judiciary and vigorous efforts of some green citizens, the Indian environmental scenario has
undergone a positive change. Today, the environmental consciousness imported by the courts,
mingled with subsequent legislative efforts in the later years, introduced the right to
environment as a fundamental right under Article 21 of the constitution of India.
The Courts in India have played a distinguishing role in gradually enlarging the scope of a
qualitative living by engaging themselves into and resolving various issues of environmental
protection. Consequently, activities posing a major threat to the environment were curtailed so
as to protect the individual’s inherent right to wholesome environment as guaranteed under
various instruments for protection of legal and human rights.
Electoral rights
Right to vote
The right to vote is a constitutional right distinct from a fundamental right in that the remedy
of filing a writ under article 32 before the Supreme Court for its enforcement is not available.
Citizens above the age of 18years are entitled to vote. A person can however, be disqualified
from exercising the right to vote or be denied registration as a voter on grounds of non-
residence; unsound mind crime or corrupt or illegal practice. Further all person is entitled to be
included in the electoral role and cannot be excluded on grounds only of religion, race, caste
and sex or any of them.
Right to information
In 2002, the Supreme Court held that the ‘freedom of speech and expression includes the right
to impart and receives information and the freedom to hold opinions’ and that ‘a democracy
cannot survive without free and fair election, without free and fairly informed voters’. The
supreme court reaffirmed that the right to information about the financial, educational and
criminal backgrounds of candidates contesting elections, promoted freedom of expression and
therefore the right to information forms and integral part of the Article 19(1) (a) i.e right to
speech and expression. Later, Right to Information Act was passed in 2005 by the Government
of India. It is one of the most revolutionary law in India. It enables the citizens to get all
information.
HUMAN RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY
The Directive Principles of State Policy are ideals, directions and rights aimed at establishing
an economic and social democracy which is pledged in the preamble of the constitution. The
idea of DPSP was borrowed from the Irish constitution. The importance of the DPSP is evident
in the words of Dr.B.R. Ambedkar who stated that DPSP as the manifesto of aims and
aspirations. DPSP enshrined in the part IV of the constitution. It sets out the ideals and
objectives related with social economic and cultural upliftment. The Directive Principles of
State Policy enshrines socio-economic rights which are part of the human rights. These rights
can be classified in to three categories 1. Directives in the nature of ideals of the state. 2.
Directives shaping the policy of the state.3. Non-justiciable rights of the citizens.
1. Directives in the nature of ideals of the state.

1. The state shall strive to promote the welfare of the people by securing a social order
permeated by social, economic and political justice [Art38(1)]; to minimize inequality in
income, status, facilities and opportunities amongst individual and groups [Art38(2)]
2. The state shall endeavour to secure just and human conditions of work: a living wage, a
decent standard of living and social and cultural opportunities for all workers (Art43).
3. The state shall endeavour to raise the level of nutrition and standard of living and to
improve public health. (Art 47)
4. The state shall direct its policy towards securing equitable distribution of the material
resource of the community and prevention of concentration of wealth and means
production. Art (39 (b), (c).
5. The state shall endeavour to promote international peace and co-operation (Art51)
2. Directive shaping the policy of the state

1. To establish economic democracy and justice by securing certain economic rights
2. To secure a Uniform Civil Code for the citizens. (Art.44)
3. To provide free and compulsory primary education (Art.45)
4. (Now this concept is a fundamental right and included in the Article 21A).
5. To prohibit consumption of liquor and intoxicating drugs except for medical purposes.
(Art47)
6. To develop cottage industries (Art.43)
7. To organize agriculture and animal husbandry on modern lines (Art48)
8. To prevent slaughter of useful cattle’s i.e. cows, calves and other milch and draught
cattle. (Art48).
9. To organize village panchayats as units of self-governments (Art40)
10. To Promote educational and economic interest of weaker sections and to protect them
from social justice. (Art.46)
11. To protect and improve the environment and safeguard forests and wildlife (Art 48A)
12. To protect and maintain places of historic or artistic importance. ( Art49)
13. To separate the Judiciary from the executive. (Art 50)
3. Non-justiciable rights of the citizens

1. Right to adequate means of livelihood. Art 39(a)
2. Right of both sexes to equal pay for equal work (Art 39(d)
3. Right against economist exploitation (39 (e), (f)
4. Right of children and the young to be protected against exploitation and to opportunities
for healthy development, consonant with freedom and dignity. Art 39(f)
5. Right to equal opportunity for justice and free legal aid Art 39A
6. Right to work (Art41)
7. 7 Right of public assistance in cases of unemployment, old age, sickness and other cases
of undeserved want (Art41)
8. Right to a living wage and conditions of ensuring decent standard of life for workers
(Art 43)
9. Right of workers to participate management of industries (Art 43A)
10. Right to children to free and compulsory education Art 45.
Articles 39A, 44A, were included in the DPSP by 43rd amendment act of the constitution. By
the 44th amendment, the Janatha Government introduced section 2 in Article 38 which speaks
for minimizing inequality in income and status not only among individuals but also among
groups.
The role of DPSP in promoting the human rights can be identified by analyzing the impotent
initiatives taken by the state, based on the DPSP. For example; Zemindari abolition,
Community Development Programmes, Implementation of Panchayat Raj, Agricultural
subsidies, Land Reforms Reservation of seats, Public Distribution Schemes, Commission for
minority, SC, ST, women and Children, Tribal welfare policies etc.
The part 1V of the Indian constitution related to the Directive Principles of State Policy, which
is much more exhaustive than the Universal Declaration.
Rights and duties are the two sides of the same coin. Fundamental duties are contained in the
Part IV(A) of the constitution. The constitution of India was incomplete with the absence of
this chapter and this was rectified by the 42nd amendment of the constitution in 1976. The
followings are the important duties.
In short, we can say that the India fully followed International Bill on Human Rights and Indian
constitution protects such rights, according to the philosophy of Universal Declaration. India
constituted the National commission for Human Rights for the redressal of grievances of
human rights violations. The commission’s role is appreciated by the peoples of India and other
human rights organizations working abroad.
FUNDAMENTAL DUTIES
Rights and Duties are the two sides of the same coin. It is also essential to realize that, in return
for every right, the society expects the citizens to do certain things which are collectively
known as duties. Some such important duties have been incorporated in the Indian Constitution
also. The original Constitution enforced on 26th January,1950 did not mention anything about
the duties of the citizen. It was expected that the citizens of free India would perform their
duties willingly. But things did not goas expected. Therefore, ten Fundamental Duties were
added in Part-IV of the Constitution under Article 51-A in the year 1976 through the 42nd
Constitutional Amendment. However, whereas Fundamental Rights are justiciable, the
Fundamental Duties are non-justiciable. It means that the violation of fundamental duties, i.e.
the non-performance of these duties by citizens is not punishable.
The following ten duties have been listed in the Constitution of India:
1. to abide by the Constitution and respect its ideals and institutions, the National Flag,
National Anthem;
2. to cherish and follow the noble ideals which inspired our national struggle for freedom;
3. to uphold and protect the sovereignty, unity and integrity of India;
4. to defend the country and render national service when called upon to do;
5. to promote harmony and the spirit of common brotherhood amongst all the people of
India and to renounce practices derogatory to the dignity of women;
6. to value and preserve the rich heritage of our composite culture;
7. to protect and improve the natural environments including forests, lakes, rivers and
wildlife;
8. to develop the scientific temper, humanism and the spirit of inquiry and reform;
9. to safeguard public property and not to use violence; and
10. to serve towards excellence in all spheres of individual and collective activity
Besides, a new duty has been added after the passage of Right to Education Act, 2009. “A
parent or guardian has to provide opportunities for the education of his child/ward between the
age of six and fourteen years.
These duties are in the nature of a code of conduct. Since they are unjustifiable there is no legal
sanction behind them. As you will find, a few of these duties are vague. The constitution, like
directive principles of state policies, leaves to the goodwill of citizen to abide these provisions.
According to the famous constitutional expert D D Basu, the constitution does not make any
provision to enforce these duties automatically or any sanction to prevent the violation of these
duties by the citizen. However, it is expected that if a law is enacted by the legislature to enforce
these provisions, it shall not be declared unconstitutional on the ground of its inconsistency
with the provisions of Article 14 and that of 19. According to him, these provisions would act
as a warning to all those who does indulge in not paying due regard to the constitution and
destroying public property. The Supreme Court may issue such warning to citizen to take these
provisions seriously. The legislature may also enact laws to enforce these duties. In fact, there
are already many laws which directly or indirectly enforce these duties. For example, there is
law for the protection of public property as well as environment and animal species.
However, the Supreme Court, in Surya Vs Union of India (1992) case, ruled that fundamental
duties are not enforceable through judicial remedies by court. In Bijoy Immanuel Vs State of
Kerala (1987), the Supreme Court overruled the decision of Kerala High Court and decided
that though to Constitution provides it to be the duty of citizen to respect the National Anthem,
it does not provide that singing of the National Anthem is part of such respect. Even a person,
while standing during the singing of National Anthem (without himself singing it) can show
respect to the National Anthem.
THE PROTECTION OF HUMAN RIGHTS ACT 1993
Human rights the most fundamental of all rights, are the rights people have simply
because they are people. These rights belong to each person: man, woman and child. They are
the rights to life. Liberty child. They are the rights to life, liberty including all the political,
civil, Social, economic and cultural rights necessary for people to live dignified lives. without
human rights. people cannot live as human beings. Human rights are those requirements that
allow us to develop to the fullest extent and satisfy our basic human needs. They are ideals
based on humanity is increasing and persistent demand for dignity, respect, justice, protection
and freedom for decent human existence. The essential elements of all human rights are that
they belong to everyone and they are unalienable birth rights of all members of the human
family.
The United Nations Educational Scientific and Cultural Organization (UNESCO) mooted the
idea of the creation of an impartial institution for the protection of human rights in the States
as early as 1946. In pursuance of the resolution of the General Assembly adopted in 1966, the
Economic and Social Council requested the Human Rights Commission of the United Nations
to consider the question of creating a National Commission of Human Rights to perform certain
functions related to the observance of the International Covenants on Human Rights. The
question was taken up by the Commission in 1970 and it recommended that the question of
establishment of National Commission of Human Rights in each Member State of the United
Nations ought to be decided by each Government of the Member State keeping in view the
traditions and institutions of each country. The Commission in 1978 again emphasized the need
for the creation of a National Institution. But all these attempts, however, were fruitless.
Realising the importance of such an institution or commission, the World Conference on
Human Rights in 1993 urged Governments to strengthen national structures, and institutions
of society, which play a role in promoting and safeguarding human rights. The Vienna
Declaration and Programme of Action adopted by the World Conference prompted a number
of States to establish such institutions.
Meaning of Human Rights: -
Human rights are those basic or fundamental rights which are quite essential for sustaining the
life including the substance required for making the meaningful. The protection of Human
Rights Act. 1993 tells the human rights or Section 2 (d).
“Human rights” means the rights relating to life. Liberty equality and dignity of the individual
guaranteed by the constitution or embodies in the International covenants are enforceable by
courts in India.
This section doesn’t enlist the human rights specifically but gives an inclusive definition. The
reason of not choosing exhaustive pattern may be simplicity. convenience, compatibility,
further prospects etc.
The section makes it clear that the rights relating to life, liberty, equality, and dignity of the
individual, as guaranteed by the constitution are included in the category of “Human rights”
we know the constitution of India through Article 32 guarantees the fundamental rights as
enshrined under part III of the constitution. The cumulative effect of these two provisions is
that all the fundamental rights relating to life, liberty, equality and dignity are included in
human right. Al human rights.
Similarly, all fundamental rights are not human rights. For instance, Article 21 (right to life
and personal liberty). Article 19 (freedom of speech and expression freedom to assemble
peacefully and without arms, freedom to form association or unions, freedom to move freely
throughout the territory of India and freedom to reside and settle in any part of the territory of
India). Article 17 (Abolition of untouchability) etc. are fundamental as well as human rights.
The Act defines human rights in Section 2(d) as “the rights relating to life, liberty, equality
and dignity of the individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by courts in India.” The above definition, however, limits the scope
of the functioning of the National Human Rights Commission. Though India ratified the two
Covenants, these are International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights. International covenants are not justifiable
before the courts, so there should be laws in the country which is to be with the conformity of
these conventions. Therefore, the rights guaranteed in the Constitution are in conformity with
these International Conventions.
The objective of the Act is to provide organizational structure for protecting human rights. The
Act provides for Human Rights Commission at national level as well as at State level in each
state and further for setup of Human Rights Courts at district level for better protection of
human rights and matters connected therewith.
Powers of this Act
Section 37 of the protection of human Rights Act. 1993 empowers the Government to constitute
one or More Special investigative teams consisting of such Police Officers as it thinks
necessary for the purpose of investigation and prosecution of offences arising out of violations
of human rights. The commission’s power to utilize the services of any officer or
investigating agency of the Government for conducting any investigation pertaining to the
inquiry is however made dependent on the concurrence of the Government.
The Human Rights constituted under section 30 of the Protection of Human Rights Act. 1993
is competent to entertain any complaint or take cognizance of any case complaining violation
of rights to privacy due to obtrusive surveillance of police and give appropriate relief both
under criminal as well as Civil law. Human Rights court is also competent to award
compensation under section 357, Cr. P.C.
Filing Complaint:
The complaint can be moved by the victim himself or herself. It can be moved even by any
other person on behalf of the victim. The complaint should specifically disclose (1) violation
of human rights or abetment thereof or (1) negligence in the prevention of such violations by a
public servant. The action can be taken even against the public servant who has the duty to
prevent such a violation. The format of complaints is given at the end of article. Though this
format is not Mandatory, but it still becomes convenient for the commission to proceed in
presence of the information given in the format.
Limitation for filing Complaint:
The period of limitation to file complaint starts on the date on which the act violating the
commission of human right is committed. The National commission or the state commission
can entertain the complaint within one year from the day when the said Act was actually
committed (Section 36).
The complaint can be moved by the victim himself or herself. It can be moved even by any
other person on behalf of the victim. The format of complaint is given at the end of Article
through this format is not Mandatory but it still becomes convenient for the commission to
proceed in presence of the information given in the format.
Then National Human Rights Commission (NHRC) or the state commission can entertain the
complaint within one year from the day when the said Act was actually committed, NHRC has
the powers to do inquiry suo motu or upon the complaint against the violation of Human Rights.
During the process of inquiry, the commission has the power of a civil court trying a suit under
the code of civil procedure 1908.
NATIONAL HUMAN RIGHTS COMMISSION

INTRODUCTION
Although we have many laws and covenants to promote human rights, violations in various
level are still going on. There is a wide gap between the ‘promise’ and ‘performance’ because
of the absence of any effective implementation machinery. Enforcement of human rights is
also very important. The measures taken by the various national governments towards making
available the various human rights promised by the international covenants to their citizens can
be called enforcement of human rights. Reports of the Amnesty International show that, human
rights are violated in a number of states. Assault on human dignity on massive scale is a matter
of deep concern. To uphold the human dignity and human rights a good number of conventions
and conferences were held at regional, national and international levels. Similarly, various
instrumentalities are established to protect and promote the human rights throughout the world.
There are governmental and non-governmental agencies and institutions have been working
for the protection of the human rights. Universal human rights standards and norms have been
incorporated within the domestic law of most countries. Various international instruments have
also been ratified by the countries, either by inculcating though legislation or by understanding
to directly comply with the obligations contain there in by way of automatic adoption. The
existence of laws that protect human rights is not sufficient if there are no processes and
institutions to ensure the effective realization of those rights
The protection of Human Right Act of 1993 demands for the constitution of a National Human
Rights Commission, State Human Rights Commission and Human Rights Courts. A national
human right institution can be described as an independent organization that is established by
the government according to specific legislation with an aim to promote and protect human
rights at national level. It has been described as one of the fundamental building blocks on
human rights protection.
NHRC defining human rights as ‘the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the constitution or embodied in the international covenants – that is
ICCPR and ICESER- and enforceable by courts in India’. The NHRC of India was the first
such commission constituted in the South Asian region.
Structure
The protection of the Human Rights Act provides that the National Human Rights Commission
consist of 5 members including the chairman. It consists of: -
a). A chairperson who has been a Chief Justice of supreme court.
b). One member, who is or has been a judge of the Supreme Court.
c). One member, who is or has been the chief justice of the High Court.
d). Two members to be appointed from among the persons having knowledge of or practical
experience in matters relating to human rights
e). The chair persons of the National Commission for Minorities, the National Commission
for Scheduled Caste and Scheduled Tribes and the National Commission for Women shall
be deemed to be the members of the commission for the discharge of certain functions.
There shall be a Secretary General who shall be the chief executive officer of the
commission and shall exercise such powers and discharge such functions of the
commission as it may delegate to him. The headquarters of the commission shall be at
Delhi.
Features of NHRC
• NHRC was constituted under Section 3 of the 1993 Act for better protection of human
rights. The term ‘human rights’ is defined in Section 2(d) of the 1993 Act, which reads
as follows:
“2. (d) “Human rights” means the rights relating to life, liberty, equality and dignity
of the individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by courts in India.”
• It is autonomous i.e. it has been created by an Act of Parliament.

• NHRC is committed to provide independent views on issues within the parlance of the
Constitution or in law for the time being enforced for the protection of human rights.
The Commission takes an independent stand.
• NHRC has the powers of a civil court.
• Authority to grant interim relief
• Authority to recommend payment of compensation or damages
• Over seventy thousand complaints received every year reflects the credibility of the
Commission and the trust reposed in it by the citizens.
• NHRC has a very wide mandate
• NHRC has unique mechanism with which it also monitors implementation of its
various recommendations.
Appointment and Removal
The Chairperson and the Members of the Commission are appointed by the President of India,
on the recommendations of a Committee consisting of:
▪ The Prime Minister (chairperson)
▪ The Home Minister
▪ The Leader of the Opposition in the Lok Sabha
▪ The Leader of the Opposition in the Rajya Sabha
▪ The Speaker of the Lok Sabha
▪ The Deputy Chairman of the Rajya Sabha
The chairman and members hold office for a term of five years or until they attain the age of
70 years, whichever is earlier. After their tenure, the chairman and members are not eligible
for further employment under the central or state government. The president can remove the
chairman or any member from the office under certain circumstances.
Functions and Powers of Commission
The Commission shall, perform all or any of the following functions, namely: -
a) Inquire, on its own initiative or on a petition presented to it by a victim or any person
on his behalf, into complaint of-
i) violation of human rights or abetment or
ii) negligence in the prevention of such violation, by a public servant;
b) intervene in any proceeding involving any allegation of violation of human rights
pending before a court with the approval of such court;
c) visit, under intimation to the State Government, any jail or any other institution under
the control of the State Government, where persons are detained or lodged for purposes
of treatment, reformation or protection to study the living condition of the inmates and
make recommendations thereon
d) review the safeguards by or under the Constitution or any law for the time being in
force for the protection of human rights and recommend measures for their effective
implementation;
e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights
and recommend appropriate remedial measures;
f) study treaties and other international instruments on human rights and make
recommendations for their effective implementation;
g) undertake and promote research in the field of human rights;
h) spread human rights literacy among various sections of society and promote awareness
of the safeguards available for the protection of these rights through publications, the
media, seminars and other available means;
i) encourage the efforts of non - Governmental organizations and institutions working in
the field of human rights
j) such other functions as it may consider necessary for the promotion of human rights.
Ordinarily, complaints of the following nature are not entertained by the Commission:
a) In regard to events which happened more than one year before the making of the
complaints;
b) With regard to matters which are sub-judice;
c) Which are vague, anonymous or pseudonymous;
d) Which are of frivolous nature;
e) Which pertain to service matters.
While inquiring into complaints under the Act, the Commission shall have all the powers of
a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular the
following, namely;:-
a) Summoning and enforcing the attendance of witnesses and examining them on oath;
b) discovery and production of any document;
c) receiving evidence on affidavits;
d) requisitioning any public record or copy thereof from any court or office
e) issuing commissions for the examination of witnesses or documents;
f) any other matter which may be prescribed.
the Commission has its own investigating staff headed by a Director General of Police for
investigation into complaints of human rights violations. Under the Act, it is open to the
Commission to utilise the services of any officer or investigation agency of the Central
Government or any State Government. The Commission has associated, in a number of cases,
non - Governmental organizations in the investigation work
The Commission while inquiring into complaints of violations of human rights may call for
information or report from the Central Government or any State Government or any other
authority or organization subordinate thereto within such time as may be specified by it;
provided that if the information or report is not received within the time stipulated by the
Commission, it may proceed to inquire into the complaint on its own; on the other hand, if,
on receipt of information or report, the Commission is satisfied either that no further inquiry
is required or that the required action has been initiated or taken by the concerned Government
or authority, it may not proceed with the complaint and inform the complainant accordingly.
The Commission may take any of the following steps upon the completion of an inquiry:
1. Where the inquiry discloses the commission of violation of human right or negligence
in the prevention of violation of human rights by a public servant, it may recommend
to the concerned Government or authority the initiation of proceedings for prosecution
or such other action as the Commission may deem fit against the concerned person or
persons;
2. Approach the Supreme Court or the High Court concerned for such directions, orders
or writs as that Court may deem necessary;
3. Recommend to the concerned Government or authority for the grant of such immediate
interim relief to the victim or the members of his family as the Commission may
consider necessary.
The functions and powers of the NHRC are outlined below: -
1. Inquiry and investigation
The NHRC may inquire into and investigate complaints of human rights violations,
their abetment or the negligence in the prevention of such violations by a public servant.
Such enquiry may undertake through its own initiative (Suo motto) or based on a
petition presented by a victim or any person on his / her behalf. These suo motto powers
are particularly relevant in situation that involves persons belonging to the marginalised
sections of society who do not have the financial or social resources to lodge individual
complaints. The NHRC has thus the power to take its own initiative and protect the
rights of these people.
The NHRC has been vested with the powers similar to those available to civil courts
while trying a suit. This means the commission can summon and enforces the
attendance of any person; examine under oath; require documents and items to be
produced before the commission; receive evidence as affidavits; requisition and public
record from any court or office and examine witness and documents.
Upon the completion of an inquiry, the NHRC may make recommendations to the
government or the authority concerned for the initiation of proceedings for prosecution
or any other action as it deems fit. It may also approach the supreme court or the high
court for a direction, order or writ, as that court may consider necessary.
2. Inspection
The NHRC can undertake inspections and make recommendations on living conditions
in jails and other institutions. It may also monitor existing legal and constitutional
mechanism for protecting human rights and measures for effective implementation and
suggest mechanism that ought to be instituted to better protect human rights.
3. Intervention in court proceedings
The NHRC may intervene, with the courts permission, in proceedings involving human
rights violation. For example, the NHRC has effectively intervened in a case of gross
violation of human rights in the Best Bakery case in which serious questions were raised
about the fairness of the criminal justice system.
4. Sensitization
The NHRC is mandated to sensitize the government to its constitutional obligations to
accede and honour international human rights treaties. The NHRC is also entrusted with
spreading human rights literacy and awareness and encouraging the efforts of non-
governmental organizations and institutions working in the field of human rights.
In addition to these functions, NHRC encourage the effort of non-governmental
organizations and institutions working in the field of human rights. It study treaties and
other international instruments on human rights and make recommendations for their
effective implementation. NHRC undertake and promote research in the field of human
rights. It also reviews the factors including acts of terrorism that inhibit the enjoyment
of human rights and recommend appropriate remedial measures.
The commission required to submit an annual report to the central as well as the state
governments concerned. It can also submit special reports on any matter of urgency or
important. The protection of human rights act 1993 also provides for the establishment
of state human rights commission to be constituted by the respective state government.
Major Human Rights issues in India
Nobody can deny the humongous magnitude of human right violations taking place in our
country. The world’s largest democracy is plagued by widespread violations. I have listed a
few major issues which are taken up by NHRC.
▪ Custodial Torture
▪ Right to Work and Labour Rights
▪ Extrajudicial Killings
▪ Arbitrary Arrest and Detention
▪ Excessive Powers of the Armed Forces and the Police
▪ Sexual Violence
▪ Conflict Induced Internal Displacement
▪ Child Labour
▪ Manual Scavenging
▪ Violence and discrimination against Women, Children
▪ Lesbian, Gay, Bisexual, Transgender Rights

▪ Problems faced by Scheduled Castes and Scheduled Tribes, Religious
Minorities, Persons with Disabilities
Limitations of the Commission

▪ NHRC can only make recommendations, without the power to enforce decisions. This
lack of authority to ensure compliance can lead to outright rejection of its decision too.
▪ It is often viewed as a post-retirement destination for judges, police officers and
bureaucrats with political clout. Bureaucratic functioning, inadequacy of funds also
hampers the working of the commission.
▪ Under the Protection of Human Rights Act, 1993, human rights commissions cannot
investigate an event if the complaint was made more than one year after the incident.
Therefore, a large number of genuine grievances go unaddressed.
State Human Rights Commission
• A State Government may constitute a body known as the Human Rights Commission
of that State to exercise the powers conferred upon, and to perform the functions
assigned to, a State Commission.
• The State Commission shall, with effect from such date as the State Government may
by notification specify, consist of—
o a Chairperson who has been a Chief Justice of a High Court;
o one Member who is, or has been, a Judge of a High Court or District Judge in
the State with a minimum of seven years’ experience as District Judge;
o one Member to be appointed from amongst persons having knowledge of, or
practical experience in, matters relating to human rights.
• There shall be a Secretary who shall be the Chief Executive Officer of the State
Commission and shall exercise such powers and discharge such functions of the State
Commission as it may delegate to him.
• The headquarters of the State Commission shall be at such place
o as the State Government may, by notification, specify.
o A State Commission may inquire into violation of human rights only in respect
of matters relatable to any of the entries enumerated.
Case Laws
In Gujarat Communal Riot’s Case, the commission took suo motu action on communal riots,
took place in Gujarat in early 2002; based on media reports.43 The Commission also received
an e-mail communication requesting the Commission to intervene. A team of the Commission
had visited Gujarat in March, 2002 and prepared a confidential report, which was later
published. The Commission observed that the State has failed to discharge its primary and
inescapable responsibility to protect the rights to life, liberty, equality and dignity of all of those
who constitute it.
In Bonded Labourers Working in Chauna Stone Mines, District Gwalior Madhya Pradesh,
Bonded Labour Liberation filed a complaint that 400 bonded labourers had been working in
Chauna Stone mines in District Gwalior and they were not paid their wages; besides they were
tortured and harassed. Commission asked government to direct Labour Commissioner, MP to
ensure the inspection of these establishments and strict enforcement of all labour laws. 44
persons were released and sent to other districts as per their wishes. In a subsequent report,
Labour Department, Government of M.P. stated about the rehabilitation of released labourers
and also indicated the action taken against the guilty employers. On consideration of the report,
Commission closed the case.
Thoothukudi massacre (2018)

The Thoothukudi massacre took place on 22 May 2018 in Thoothukudi district when
paramilitary and Tamil Nadu Police forces fired into a crowd of 20,000 people. The crowd had
gathered to protest environmental pollution caused by a Sterlite Copper factory.
Sporadic protests have occurred in Thoothukudi district in the Indian state of Tamil Nadu since
1999, directed against the copper smelting factory Sterlite Copper. The factory is owned
by Vedanta Limited, a subsidiary of Vedanta Resources. Protestors oppose soil, water and air
contamination caused by the factory. An epidemiological study carried out by Tirunelveli
Medical College in 2006–07 had found increased prevalence of respiratory diseases and ear,
nose and throat (ENT) morbidity in the 5 km radius of Sterlite Industries. Their report blamed
this on-air pollution caused by the industry and automobiles – such as trucks and heavy vehicles
– plying in this area.
Water in the area of the plant has been found to be 17–20 times the allowable limit, causing
additional health problems for the population already experiencing higher than average
incidence of respiratory diseases. The plant is less than 15 Km from the Gulf of Mannar
Biosphere Reserve. More than 2.5 lakh (250,000) people live in the vicinity of the plant.
The Sterlite factory made headlines in 2013 when a gas leak led to the death of one person and
injured several others.[6] The plant was blamed for health issues observed in the area related
to gas leakage. Following a gas leak in March 2013, the then chief minister, the late J
Jayalalithaa, ordered its closure. The company appealed to the National Green Tribunal, which
overturned the government order. The state moved the Supreme Court against it, where the
petition was still pending. The plant closed on March 27 of 2018, with the company citing a
15-day maintenance process.[6] The Supreme Court ordered the company to pay a 100-crore
fine and the factory was temporarily shut down by the pollution regulator.[11]
After Sterlite announced its plans to expand the plant, people around Kumarettiyapuram village
protested for more than 100 days. A major protest had been conducted peacefully till March
29, 2018.
On May 22, 2018, thousands of people began to march to the district collector's office to submit
a petition. An official release said 20,000 people took out a procession towards the district
collectorate and the copper plant. The police resorted to lathi charges against the protesters,
some of whom allegedly started throwing stones at the collectorate. Non-uniformed police
started to shoot at the unarmed protesters using assault rifles, and police opened fire from over
the top of Vehicles using SLR Rifles. Thirteen protesters were killed including a 17-year old
law student, and dozens were injured.
FIRs filed in local police stations claimed that the order to shoot was issued by officers in the
rank of deputy tahsildars. Some people pointed out that only Collectors have the authority to
issue shooting orders.
National Human Rights Commission of India demanded investigation into the killings. It asked
its Director General (Investigation) to send a team headed by an SP to visit the spot and conduct
an inquiry.
The killing of 13 anti-Sterlite protesters in police firing at Thoothukudi echoed in the United
Nations with UN Human Rights experts condemning the use of lethal force against agitators
who were demanding closure of the copper smelter plant due to health and environmental
concerns.
Expressing concern over the apparent “disproportionate and excessive” use of force,
including use of live ammunition, against protesters demanding legitimate human rights and
environmental concerns, United Nation Human Rights experts, in a statement in the website,
called on Indian authorities to carry out an independent and transparent investigation, without
delay, and to ensure that perpetrators of violations be held accountable.
Module 4
Women & Human Rights – Gender Discrimination, Harassment of Women – The Judicial
Approaches – The Commission for Women – Establishment, Powers and Functions – The
Kerala State Women’s Commission – Establishment, Powers & Functions.
Women & Human Rights
The inferior status of women is entrenched in history, culture and tradition. Through the ages,
national and religious institutions have been called upon to justify violations of women’s rights
to equality and enjoyment of fundamental human rights. Even now, women are subject to
discrimination in all stages of life; in income, education, health and participation in society and
they are particularly vulnerable to specific violations such as gender-based violence, trafficking
and sex discrimination. Various international bodies have been established with the aim of
eradicating policies, actions and norms that perpetuate discrimination against women and
violate women’s human rights.
International Human Rights Standards
After the Second World War, a number of treaties on the protection of women were drafted
and both the UN Charter and the International Bill of Human Rights (see e.g. Article 3 of
ICESCR and Article 3 of ICCPR) proclaim equal rights for men and women and ban
discrimination on the grounds of sex. In addition to instruments relating to discrimination in
general, a whole series of instruments have been developed specifically for the protection of
women, the elimination of discrimination against women and the promotion of equal rights.
These serve to create a broad, international framework for future developments and the
establishment of general norms for national policy.
One of the most important instruments for the protection of women is the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), which was adopted
by the UNGA on 18 December 1979, following consultations over a five-year period by various
working groups, the CSW and the UNGA. It entered into force in 1981. The 30-article
Convention sets out internationally accepted principles and measures to achieve equal rights
for women everywhere. As of July 2004, 177 states were parties to CEDAW.
The CEDAW reflects the scope of exclusion and restriction suffered by women solely on the
basis of their sex. It sets out equal rights for women, regardless of their marital status, in all
fields - political, economic, social, cultural and civil and calls for national legislation banning
discrimination. It allows for temporary special measures (‘affirmative action’) to accelerate the
achievement of equality in practice between men and women (Article 4), and actions to modify
social and cultural patterns that perpetuate discrimination (Article 5). Other measures aim at
equal rights for women in political and public life (Article 7); equal access to education and
equal choice of curricula (Article 10); non-discrimination in employment and pay (Article 11);
and guarantees of job security in the event of marriage and maternity (Article 11).
The Convention underlines equal responsibilities of men with women in the context of family
life (Article 16). It also stresses the social services needed - especially childcare facilities - for
combining family obligations with work responsibilities and participation in public life (Article
11). Furthermore, articles of the Convention call for non-discriminatory health services for
women, including services related to family planning, and equal legal capacity to that of men.
States Parties agree that all contracts and other private instruments that restrict the legal
capacity of women ‘shall be deemed null and void’ (Article 15). Special attention is given to
the problems of rural women (Article 14).
It should be noted that the effectiveness of the Convention in promoting the rights it contains
is significantly undermined by the numerous reservations made by States Parties. Most
reservations aim to preserve religious and national institutions that are contrary to the rights
guaranteed and many are obviously incompatible with the object and purpose of the
Convention.
On 6 October 1999, the General Assembly adopted an Optional Protocol to the CEDAW, which
entered into force in 2000. The Protocol establishes a procedure that allows individual women,
or groups of women, to submit claims of violations of rights protected under the Convention
to the CEDAW Committee. In July 2004, 60 states had ratified the Optional Protocol. Other
universal instruments relating to the rights of women include the UN Convention for the
Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others
(1949), the UN Convention on the Political Rights of Women (1952) and the UN Convention
on the Nationality of Married Women (1957). Furthermore, the Rome Statute of the
International Criminal Court (1998) Article 7 establishes that rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilisation and other forms of sexual violence are
each to be considered a crime against humanity.
Supervision
The CEDAW establishes the Committee on the Elimination of Discrimination Against
Women to oversee the implementation of the rights it guarantees (for further analysis of the
Convention and Committee see XX). The Committee acts as a monitoring system to oversee
the implementation of the Convention. This is done principally by examining reports submitted
by states parties, but in 1999, an optional protocol expanded the powers of the Committee to
include competence to receive individual complaints. This procedure allows individuals and
groups of individuals, alleged victims of violations, to file a complaint against states parties to
the protocol. As has been examined, the Optional Protocol also establishes a distinctive feature:
an inquiry procedure that allows the Committee to initiate investigations into suspected grave
or systematic violations by a state party of the rights contained in the Convention. In this regard
the Committee can carry out visits to the country in question.
The Committee has contributed significantly to the interpretation of the obligations imposed
by the Convention through its General Recommendations which have dealt with several issues
of utmost importance for women such as violence against women (General Recommendation
No. 12 - Violence against women); equal remuneration for work of equal value (General
Recommendation No. 13 - Equal remuneration for work of equal value); female circumcision
(General Recommendation No. 14 - Female circumcision); AIDS (General Recommendation
No. 15 - Avoidance of discrimination against women in national strategies for the prevention
and control of acquired immunodeficiency syndrome); violence against women (General

Recommendation No. 19 - Violence against women); equality in marriage and family relations
(General Recommendation No. 21 - Equality in marriage and family relations); women’s
political rights (General Recommendation No. 23 - Political and Public Life) and women and
health (General Recommendation No. 24 - Women and Health).
Although the CEDAW Committee has the competence to receive individual complaints, to
date no individual cases have been decided. Individual communications regarding sex-
discrimination have, however, been brought to the Human Rights Committee. In the
Mauritanian Women Case (Aumeeruddy Cziffra and 19 other Mauritanian Women v.
Mauritius), the Committee found that an immigration law giving certain status to wives and
not husbands made an adverse distinction on the grounds of sex on the right to be free from
arbitrary and unlawful interference with the family and was in violation of the ICCPR. Another
case brought before the Human Rights Committee dealt with a law that stipulated that married
women could not claim continued unemployment benefits unless they proved they were either
‘breadwinners’ or that they were permanently separated from their husbands. This condition
did not apply to married men. The Committee found a violation of Article 26 ICCPR (non-
discrimination) on the grounds of sex (Broeks v. The Netherlands). Article 26 is ‘free-
standing’, meaning that it can be applied to discriminatory laws, whether or not the subject
matter is covered by provisions of the ICCPR. ICCPR (for further analysis see the right to
equality and non-discrimination part 3.12).
In addition, mention should be made of the UN Commission on the Status of Women, which
has a mandate to consider confidential and public communications on the status of women.
During each session, a Working Group of five members, selected with due regard for
geographical distribution, gathers in closed meetings to consider communications addressed to
the Commission and those pertaining to women received by the Office of the High
Commissioner for Human Rights, including the replies of governments thereto, with a view to
bringing to the attention of the Commission those communications which reveal a consistent
pattern of reliably attested injustice and discriminatory practices against women. The
Commission may make recommendations to ECOSOC regarding the complaints submitted;
what steps are to be taken is decided by ECOSOC.
Gender Discrimination
Any distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on the basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Gender discrimination with respect to women is a global phenomenon. Throughout the world,
women still suffer from discrimination and oppression for no reason other than their gender. In
virtually all societies and spheres of activity, women are subjected to inequalities in law and in
fact. This inequality of women is both caused and aggravated by the existence of discrimination
in almost every field - be it social, economic or political. Although causes and consequences
may vary from country to country, discrimination against women is constant and widespread.
Discrimination is perceived to be an aberration that can be eliminated with the extension of

equal rights to all. Therefore, throughout the world, efforts were made to recognize equality of
rights between men and women and to eliminate discrimination against women at all levels.
Although various initiatives were taken in this regard globally, but the most important role in
this direction was played by the United Nations (UN).
Efforts of the United Nations for the Elimination of Discrimination Against Women and
International Standards
1. The United Nations Charter, 1945
Article 1(3) of the Charter of the UN lays down that the UN has “to achieve international
cooperation in solving international problems of an economic, social and cultural, or
humanitarian charter, and in promoting and encouraging respects for human rights and
fundamental freedoms for all without distinction as to race, sex, language or religion.”
Article 8 of the Charter of UN states, “the UN shall place no restrictions on the eligibility of
men and women to participate in any capacity and under conditions of equality in its principal
and subsidiary organs.”
Thus, the principle of equality of men and women in the matter of pron^ and observation of
human rights and fundamental freedoms has been established under the Charter of UN.
2. Commission on the Status of Women, 1946
In pursuance of the principle of the Charter, 1945, the ECOSOC established a Commission on
the Status of Women in 1946.
3. Universal Declaration of Human Rights, 1948
The Universal Declaration of Human Rights, 1948 recognizes the equal rights of men and
women. Article 1 of this Declaration states that “All human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood.
As per Article 2 of the Declaration, “Everyone is entitled to all the rights and freedoms set forth
in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.”
This UN Declaration clearly provides that all the rights and fundamental freedoms of the
Declaration of Human Rights are available equally to both men and women without any
distinction.
4. Convention on the Political Rights of Women, 1953
The Convention on the Political Rights of Women was adopted by General Assembly
Resolution 640 (VII) of 20 December, 1952, opened for signature on 31 March, 1953 and
entered into force on 7 July, 1954.
The Convention provides:

1) Women shall be entitled to vote in all elections on equal terms with men without any
discrimination. (Article 1)
2) Women shall be eligible for election in all publicly elected bodies established by
national laws, on equal terms with men, without any discriminate (Article 2)
3) Women shall be entitled to hold public office and to exercise all public functions,
established by national laws, on equal terms with men, without any discrimination. (Article 3)
5. International Covenant on Civil and Political Rights, 1966 (ICCPR)
Art. 2(1) of the International Covenant on Civil and Political Rights, 1966 provide that “Each
State Party to the present Covenant undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
national, or social origin, property, birth or other status.
Article 3 of the Covenant provides that ‘The States Parties to the Present Covenant undertake
to ensure the equal rights of men and women to the enjoyment of all civil and political rights
set forth in the present Covenant.'’
6. International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966
Article 2(2) of the Covenant provides that “The States Parties to the present Covenant
undertake to guarantee that the rights enunciated in the present Covenant will be exercised
without discrimination of any kind as to race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
Article 3 of the (Covenant provides that “The States Parties to the present Covenant undertake
to ensure the equal rights to men and women to enjoyment of all economic, social and cultural
rights set forth in the present Covenant.
7. Declaration on the Right to Development, 1986
The 1986 UN Declaration on the Right to Development spell out the tents of the rights as the
entitlement to participate in and contribute to social, cultural and political developments where
all women’s rights & fundamental freedoms may be realized. The Right to Development is
apparently formulated to apply to all citizens within the States and assumed to benefit women,
children and unorganized workers as well. The States are required to ensure that women have
an active role in the process of development pother provisions of the Declaration suggest the
discrimination against women or children is not felt as any obstacle in the development and
distribution of the benefits.
8. Declaration on the Elimination of Violence Against Women, 1993
This Declaration was adopted without a vote in General Assembly of the UN on 20 December
1993. The Declaration states that term ‘violence against women’ means any act of gender-
based violence that results in, or is likely to result in, physical, sexual or psychological harm
or suffering to women, including threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or in private life (Art. 1). The States should condemn
violence against women and should not invoke any custom, tradition or religious consideration
to avoid their obligations with respect to its elimination. States should pursue by all appropriate
means and without delay a policy of eliminating violence against women.
9. The Declaration on the Elimination of Discrimination against Women, 1967
The Declaration on the Elimination of Discrimination against Women is a human

rights proclamation issued by the United Nations General Assembly, outlining that body's
views on women's rights. It was adopted by the General Assembly on 7 November 1967. The
Declaration was an important precursor to the legally binding 1979 Convention on the
Elimination of All Forms of Discrimination Against Women.
The Declaration follows the structure of the Universal Declaration of Human Rights, with a
preamble followed by eleven articles.
10. The Convention on the Elimination of all Forms of Discrimination Against

Women (CEDAW)
The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)
is an international treaty adopted in 1979 by the United Nations General Assembly. Described
as an international bill of rights for women, it was instituted on 3 September 1981 and has been
ratified by 189 states. Over fifty countries that have ratified the Convention have done so
subject to certain declarations, reservations, and objections, including 38 countries who
rejected the enforcement article 29, which addresses means of settlement for disputes
concerning the interpretation or application of the Convention. The United
States and Palau have signed, but not ratified the treaty. The Holy
See, Iran, Somalia, Sudan and Tonga are not signatories to CEDAW.
The Convention has a similar format to the Convention on the Elimination of All Forms of
Racial Discrimination, "both with regard to the scope of its substantive obligations and its
international monitoring mechanisms". The Convention is structured in six parts with 30
articles total.
• Part I (Articles 1-6) focuses on non-discrimination, sex stereotypes, and sex trafficking.
• Part II (Articles 7-9) outlines women's rights in the public sphere with an emphasis on
political life, representation, and rights to nationality.
• Part III (Articles 10-14) describes the economic and social rights of women, particularly
focusing on education, employment, and health. Part III also includes special protections
for rural women and the problems they face.
• Part IV (Article 15 and 16) outlines women's right to equality in marriage and family life
along with the right to equality before the law.
• Part V (Articles 17-22) establishes the Committee on the Elimination of Discrimination
against Women as well as the states parties' reporting procedure.
• Part VI (Articles 23-30) describes the effects of the Convention on other treaties, the
commitment of the states parties and the administration of the Convention.
Core Provisions
Article 1 defines discrimination against women in the following terms:
Any distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Article 2 mandates that states parties ratifying the Convention declare intent to enshrine gender
equality into their domestic legislation, repeal all discriminatory provisions in their laws, and
enact new provisions to guard against discrimination against women. States ratifying the
Convention must also establish tribunals and public institutions to guarantee women effective
protection against discrimination and take steps to eliminate all forms of discrimination
practiced against women by individuals, organizations, and enterprises.
Article 3 requires states parties to guarantee basic human rights and fundamental freedoms to
women "on a basis of equality with men" through the "political, social, economic, and cultural
fields."
Article 4 notes that "adoption...of special measures aimed at accelerating de facto equality
between men and women shall not be considered discrimination." It adds that special protection
for maternity is not regarded as gender discrimination.
Article 5 requires states parties to take measures to seek to eliminate prejudices and customs
based on the idea of the inferiority or the superiority of one sex or on stereotyped role for men
and women. It also mandates the states parties "[t]o ensure...the recognition of the common
responsibility of men and women in the upbringing and development of their children."
Article 6 obliges states parties to "take all appropriate measures, including legislation, to
suppress all forms of trafficking in women and exploitation of prostitution of women."
Article 7 guarantees women equality in political and public life with a focus on equality
in voting, participation in government, and participation in "non-governmental organizations
and associations concerned with the public and political life of the country."
Article 8 provides that states parties will guarantee women's equal "opportunity to represent
their Government at the international level and to participate in the work of international
organizations."
Article 9 mandates states parties to "grant women equal rights with men to acquire, change or
retain their nationality" and equal rights "with respect to the nationality of their children."
Article 10 necessitates equal opportunity in education for female students and
encourages coeducation. It also provides equal access to athletics, scholarships and grants as
well as requires "reduction in female students' dropout rates."
Article 11 outlines the right to work for women as "an unalienable right of all human beings."
It requires equal pay for equal work, the right to social security, paid leave and maternity
leave "with pay or with comparable social benefits without loss of former employment,
seniority or social allowances." Dismissal on the grounds of maternity, pregnancy or status of
marriage shall be prohibited with sanction.
Article 12 creates the obligation of states parties to "take all appropriate measures to eliminate
discrimination against women in the field of health care in order to ensure...access to health
care services, including those related to family planning."
Article 13 guarantees equality to women "in economic and social life," especially with respect
to "the right to family benefits, the right to bank loans, mortgages and other forms of financial
credit, and the right to participate in recreational activities, sports and all aspects of cultural
life."
Article 14 provides protections for rural women and their special problems, ensuring the right
of women to participate in development programs, "to have access to adequate health care
facilities," "to participate in all community activities," "to have access to agricultural credit"
and "to enjoy adequate living conditions."
Article 15 obliges states parties to guarantee "women equality with men before the law,"
including "a legal capacity identical to that of men." It also accords "to men and women the
same rights with regard to the law relating to the movement of persons and the freedom to
choose their residence and domicile."
Article 16 prohibits "discrimination against women in all matters relating to marriage and
family relations." In particular, it provides men and women with "the same right to enter into
marriage, the same right freely to choose a spouse," "the same rights and responsibilities during
marriage and at its dissolution," "the same rights and responsibilities as parents," "the same
rights to decide freely and responsibly on the number and spacing of their children," "the same
personal rights as husband and wife, including the right to choose a family name, a profession
and an occupation" "the same rights for both spouses in respect of the ownership, acquisition,
management, administration, enjoyment and disposition of property, whether free of charge or
for a valuable consideration."
Articles 17 - 24 These articles describe the composition and procedures of the CEDAW
Committee, like the hierarchical structure and rules and regulations of systematic procedure of
the relationship between CEDAW and national and international legislation and the obligation
of States to take all steps necessary to implement CEDAW in full form.
Articles 25 - 30 (Administration of CEDAW)
11. Committee on the Elimination of Discrimination against Women

The Committee on the Elimination of Discrimination Against Women is the United Nations
(U.N.) treaty body that oversees the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW). The formation of this committee was outlined
in Article 17 of the CEDAW, which also established the rules, purpose, and operating
procedures of the committee. Throughout its years of operation the committee has held multiple
sessions to ensure the rules outlined in the CEDAW are being followed. Over time the practices
of the committee have evolved due to an increased focus on women's rights issues.
Sessions
The committee is allowed to hold as many meetings as are required to perform their duties
effectively, with the states party to the CEDAW and the Nations authorizing the number of
regular sessions held.[20] In addition, special sessions can be held at the request of either a
state party to the convention or the majority of the members serving on the committee.
Reports
Under article 18 of the CEDAW states must report to the committee on the progress they have
made in implementing the CEDAW within their state. As most of the information the
committee works with comes from these reports, guidelines have been developed to help states
prepare accurate and useful reports. Initial reports discussing the current picture of
discrimination against women in the reporting states are required to specifically deal with each
article of the CEDAW and consist of no more than one-hundred pages. States are required to
prepare and present these initial reports within one year of ratifying the CEDAW. Periodic
reports detailing the state's progress in adhering to the articles of the CEDAW should be no
more than seventy-five pages in length and should focus on the specific period of time since
the state's last report. States party to the CEDAW are typically required to provide periodic
reports every four years, but if the committee is concerned about the situation in that state they
can request a report at any time.
The committee chooses which reports to address by considering factors such as the amount of
time the report has been pending, whether the report is initial or periodic (with more priority
given to initial reports), and from which region the report originates. Eight states are invited to
give their reports during each session and it is required a representative from the state is in
attendance when the report is presented. The committee focuses on constructive dialogue when
a report is presented and appreciates careful time management on the part of the state presenting
its report. Due to the high backlog of overdue reports the committee has encouraged states to
combine all of their outstanding reports into one document and sends reminders to states who
have reports five years overdue.
The CEDAW also requires that the committee provide an annual report that includes its
activities, comments relating to the reports provided by states, information relating to the
Optional Protocol of the CEDAW, and any other general suggestions or recommendations the
committee has made. This report is given to the United Nations General Assembly through
the Economic and Social Council. All reports, agendas and other official documents pertaining
to the committee, including the reports provided by the states, are provided to the public unless
otherwise decided by the committee.
Vishaka vs. State of Rajasthan
Vishaka is a classic case where the relevant provisions of the Constitution relating to the
implementation of international treaty are discussed and the Court laid down guidelines in the
light of CEDAW to prevent sexual harassment of working women in all work places.
The Court expressly ruled that the guidelines should be treated as law declared by the Court
under Article 141 of the Constitution, till the Parliament enacts a law on the subject. It is in this
context that Vishaka is hailed as one of the most significant judgment that used international
human rights treaties as a base for adjudication.
Vishaka was a Public Interest Litigation (PIL in short) filed in the year 1992 under Article 32
of the Constitution for the enforcement of fundamental rights guaranteed under Article 14,
19(1) (g) and 21 and more particularly “in finding suitable methods for realization of the true
concept of ‘gender equality’ and to prevent sexual harassment of working women in all work
places through judicial process, to fill the vacuum in existing legislation.”
The case was premised on the fact that one Bhanwari Devi, a sathin, was subjected to gang
rape and humiliation as she attempted to stop child marriage. It was brought to the notice of
the Court that there is no specific law curbing the menace of sexual harassment women at work
place. The Court’s attention was drawn to various provisions of CEDAW that specifically
addressed this issue. In addressing this plea, the Supreme Court referred to Articles 11 and 24
of the CEDAW which India had ratified by then, and to the General Recommendations of the
United Nations Committee on the Elimination of Discrimination against Women in respect of
Article 11.
The Court also noted the official commitment made by the Government of India at the Fourth
World Conference on Women in Beijing, inter alia, “to formulate and operationalize a national
level and in every sector; to set up a commission for Women’s Rights at every level and in
every sector, to set up a commission for Women’s Rights to act as a public defender of women’s
human rights; and to institutionalize a national level mechanism to monitor the implementation
of the Platform of Action.
The Court, in response, rendered most progressive and resounding decision. Considering the
absence of specific law dealing with the issue of sexual harassment of women at work places,
the Court had “no hesitation” in placing reliance on the above said international initiatives for
the purpose of construing the nature and ambit of the constitutional guarantee of gender
equality in the Constitution.
In light of these deliberations, the Court outlined guidelines which were to be observed in order
to enforce the rights of gender equality and to prevent discrimination for women in the
workplace.
These guidelines included the responsibility upon the employer to prevent or deter the
commission of acts of sexual harassment and to apply the appropriate settlement and
resolutions and a definition of sexual harassment which includes unwelcome sexually
determined behaviour (whether directly or by implication) such as:
o physical contact and advances;
o a demand or request for sexual favours;
o sexually-coloured remarks; • showing pornography;
o any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
Furthermore, the guidelines set out that persons in charge of a workplace in the public or private
sector would be responsible for taking the appropriate steps to prevent sexual harassment by
taking the appropriate steps, including:
▪ The prohibition of sexual harassment should be published in the appropriate
ways and providing the appropriate penalties against the offender;
▪ For private employees, the guidelines should be included in the relevant
employment guidelines;
▪ Appropriate working conditions in order to provide environments for women
that are not hostile in order to establish reasonable grounds for discrimination;
▪ The employer should ensure the protection of potential petitioners against
victimisation or discrimination during potential proceedings;
▪ An appropriate complaints mechanism should be established in the workplace
with the appropriate redress mechanism;
▪ Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person-in-charge will take all steps
necessary and reasonable to assist the affected person in terms of support and
preventive action.
Finally, the court stated that the guidelines are to be treated as a declaration of law in
accordance with Article 141 of the Constitution until the enactment of appropriate legislation
and that the guidelines do not prejudice any rights available under the Protection of Human
Rights Act 1993.
12. The Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women (OP-CEDAW)
The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination
against Women (OP-CEDAW) is an international treaty which establishes complaint and
inquiry mechanisms for the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW). Parties to the Protocol allow the Committee on the Elimination of
Discrimination against Women to hear complaints from individuals or inquire into "grave or
systematic violations" of the Convention.
The Convention on the Elimination of All Forms of Discrimination against Women outlaws
discrimination on the basis of gender and obliges its parties to repeal discriminatory laws and
guarantee equality in the fields of health, employment, and education. The Optional Protocol
is a subsidiary agreement to the Convention. It does not establish any new rights, but rather
allows the rights guaranteed in the Convention to be enforced.
In 2005, in the case of A.T. v. Hungary, the Committee ruled that Hungary had violated
numerous articles of the Convention by failing to adequately protect women against domestic
violence. It recommended that the complainant be immediately protected from her abusive
former partner, and that Hungary improve its handling of domestic violence cases and
immediately adopt the Committee's previous recommendation for a law allowing protection
and exclusion orders. The recommendations were implemented by the time of Hungary's sixth
periodic report to the Committee in 2006.
SEXUAL HARASSMENT OF WOMEN
The term sexual harassment coined in 1970’s by feminist activists, and their conception of
sexual harassment was socio-cultural. The first definition of sexual harassment was formulated
by Farely and working women united. “Any repeated and unwanted sexual comments, looks,
suggestions or physical contact that you find objectionable or offensive and causes you is
comfort on your job”
In Indian criminal law, sexual harassment of women has not been enunciated as a juridical
category of crime. It was only in 1997 that, in the realm of juridical interpretation, sexual
harassment of working women was named and defined. This does not imply that there are no
related laws in the Indian Penal Code that may be evoked when a woman is sexually harassed.
However, related laws are framed as offences that either amount to obscenity in public or acts
that are seen to violate the modesty of women under sections 294, 354 and 509 of IPC.
In 1992, however, a chapter on ‘Crimes against Women’ was added to the Crime in India report
to cope with the continuous demand for data on the burning issue of crimes against women.
The report further stated: crimes against women have become a matter of growing concern.
The report listed the following crimes against women as enunciated in the IPC. Rape (376
EPC): kidnapping or abduction for different purposes (363-373) homicide for dowry, dowry
deaths or their attempts (302/304-B. IPC) torture, both mental and physical (498.A IPC):
molestation (354, IPC): and eve teasing (509.EPC). The report classified 354 as molestation
and section 509 as eve teasing. Molestation then was read against those offences that use force
or assault to outrage the modesty of women. Eve teasing was recognised as a popular form of
harassment of women in public places. 1994 Crimes in India Report continued to classify 354
as molestation, it categorised 354 as molestation, and it categorised section 509 as sexual
harassment. It is significant that this category was foot noted to explicitly say: ‘referred in the
past as eve teasing.’
Criminal Law Provisions

It is worthy to mention here that the constitution and law of the land gives adequate protection
and safe guard the interest of women but it is due to utter callousness, apathy and indolence of
the society that a woman is figured as a weaker sex which is an artificial creation, not an edict
of God. It is gratifying to note that Article, 14, (equality before law and equal protection to the
laws), Articles- 15(3), 16, 19, 23 and 39 (Directive principles of state policy for equal pay for
equal work both for men and women) and Article 39 (A) legal aid for women at state cost
provided in the constitution has made elaborate arrangements to uplift the life and condition of
women. This was also the pious intention of the founding fathers of the constitution. In spite
of such constitutional guarantee and special laws enacted to give protection and ameliorate the
status of women, not much has been done so far to bring them at par with men folk. It is
distressing to note that there has been growing incidence of domestic violence by the in-laws
and husband of married women and dowry demand, torture and sexual harassment of women.
Protection of women from the Domestic Violence Act, 2005 has not been able to respond to
growing menace of crimes committed on women because the punishment is not exemplary so
as to create its impact in the society. In this context it is necessary to highlight the various
amendments made in the criminal law like IPC, CrPC, Evidence Act and other legislations to
combat crime against women in the wake of Nirbhava case at Delhi. The Supreme Court took
up the issue and gave direction to the government to establish number of fast track courts in
the country to try sexual offences committed on women and deliver speedy justice.
The provisions of the Indian Penal Code (IPC) can aid in the event of sexual harassment in the
work place and sexual harassment of women. In the IPC, there is no chapter specifically dealing
with “Crimes against Women” and there is no act listed or described as “Sexual Harassment”.
To invoke the operation of penal provisions, the sole requirement is that the act complained of
i.e., sexual harassment must have all the ingredients of the commission or commission of the
offence.
The provisions of the IPC that may be used in the case of sexual offences against women are
Section 313 - Causing miscarriage without women's consent
Section 314 - Death caused by act done with intent to cause miscarriage.
Section 304B - Causing Dowry death
Section 306 - Abetment to commit suicide by women.
Section 354 - Assault or criminal force to women with intent to outrage her modesty.
Section 354 A - Sexual harassment and punishment for sexual harassment/
Section 354 B - Assault or use of criminal force to women with intent to disrobe her.
Section 354 C - Capturing the image of a women engaged in a private act and watching her.
Section 354 D - Following a woman and coming in contact with her and touching her and other
amorous advances against her disinterest.
Section 366 - Kidnapping, abducting or inducing women to compel her marriage, etc.
Section 372 - Selling minor for purposes of prostitution, etc.

Section 373 - Buying minor for purposes of prostitution, etc.
Section 376A - Punishment for causing death of rape victim or resulting in persistent vegetative
state of victim may end in death sentence.
Section 376 C - Sexual intercourse by a person in authority and punishment may end in life
sentence.
Section 376D - Gang rape and punishment may end in life sentence.
Section 376E - Punishment for repeated offenders which may end in death sentence. Section
498A - Husband or relative of husband of women subjecting her to cruelty.
Section 509 - Word, gesture or act intended to insult the modesty of a woman.
Section 326A - Voluntarily causing grievous hurt by use of acid, etc.
Amendments in Evidence Act
It is striking to note that even in the Indian Evidence Act, a provision has been made under
section 114 (B) to draw presumption by the court (the Court shall presume) regarding dowry
death and mental and physical cruelty shown to women by her In-laws. Similarly, section 113
(A) was added in Evidence Act that the court shall presume about the abetment of suicide by
married woman if she was subjected to cruelty and harassment prior to her death, within 7 years
of marriage. In rape cases he character, past sex life of the victim lady is not relevant during
trial after amendment of the law.
Amendments made in Code of Criminal Procedure(CrPC)
In relation to commission of sexual crimes on women as amended in IPC provisions, the
information under section 154 of Cr p.c. (FIR) regarding the offence shall be recorded by a
women police officer. Similarly, the statement of women regarding commission of the offences
like outraging her modesty and making her naked etc are to be recorded under section 161 of
CrPC by a women police officer. According to section 309 of CrPC now in relation to rape
cases, the enquiry or trial should be completed within two months from the date of charge sheet.
Section 357 of CrPC mandates that the victims of sexual offences are to be treated at all public
and private hospitals who shall immediately inform the police about such incident.
The Judicial Approaches
It can be said that in order to bring about effective gender justice in the society, it is the duty
of every member of the judiciary to contribute in protecting the human rights of women in
order to eradicate the injustice and inequality faced by them, leading to their oppression in
society.
A brief survey of a few cases and the judgements of the Hon'ble Supreme Court and High
Courts are presented here to highlight the views of judiciary on women's issues and to find out
to what extent the judiciary has been successful in rendering decisions which accelerated the
pace of gender justice and removed gender discrimination in India.
(i) Articles 14, 15 & 16:
A number of cases have come up in the Supreme Court and High Courts regarding the violation
of Articles 14, 15 & 16. Some of these are:
C.B. Muthamma v. Union of India
This is one of the important cases which highlight the gender inequality and discrimination
against women in government employment. In this case C.B. Muthamma of the Indian Foreign
Service was discriminated and denied promotion to the Grade-I on account of her female sex.
She filed a writ petition in the Supreme Court against two IFS service rules which were
discriminatory against women and violated Articles 14 and 16 of the Constitution. Under Rule
8(2) of IFS, a woman member of the service was required to obtain permission of the
Government in writing before her marriage was solemnized. At any time after the marriage, a
woman member may be required to resign from service, if the government was satisfied that
her family and domestic commitments were likely to come in the way of the due and efficient
discharge of her duties as a member of the service. Under Rule 18(4), it was provided that no
married woman shall be entitled as of right to be appointed to the service. The Supreme Court
struck down the above rules on the ground that they were utter discriminatory and violated the
fundamental right of equal treatment to women employees in matters of public employment.
Maya Devi v. State of Maharashtra
This is another case of discrimination against women wherein a provision requiring married
women to obtain her husband's consent before applying for public employment was challenged
as violating Articles 14, 15 and 16 of the Constitution.
A civil surgeon had issued an advertisement for a training course in midwifery at the district
hospital. The said advertisement had a clause which read, "Married women candidates must
enclose along with their application their husband's written permission for pursuing the
course." The petitioner (Maya Devi) got the consent from her husband and joined the course.
Thereafter, the husband had second thought that if she joins the training, it would disturb the
family life. On being asked to produce another letter of ‘no objection' from the husband, she
moved the court and got an interim order. One seat was reserved for her and she took the
training. Later on, she challenged the relevant condition in the advertisement as being wholly
unreasonable and discriminatory, being violative of equality guaranteed by the Constitution. It
was argued on behalf of the State that the consent of the husband is sought because if she joins
the course without his consent, it might affect the wife and consequently the course and hence,
there is nothing unreasonable in the requirement.
The Court was of the view that the consent requirement was an obstacle to women's equality.
Since the male candidate was not asked to produce a similar certificate and since Maya's
appointment appear to depend solely on her husband's written consent, this naturally amounted
to discrimination purely on the ground of sex. Moreover, the Court observed that this consent
requirement has no nexus, whatsoever with the object sought to be achieved here, it being the
merit of the candidate as a skilled nurse. Thus, the Court struck down the relevant clause of the
advertisement declaring it as ultra vires of petitioner's fundamental right of equality.
Air India v. Nergesh Meerza
This is a much-published case, which also involved the issue of equality between men and
women. In this case, the air hostesses of Air India Corporation had approached the Supreme
Court for fighting the discriminatory service conditions in the regulations of Air India. Here
the conditions framed by Air India for air hostesses and male stewards contained certain
provisions discriminatory against women. Regulations 46 and 47 provided that an air hostess
would retire from the service of the Corporation on 3 conditions
(i) upon attaining the age of 35 years.
(ii) on marriage if it took place within four years of service or
(iii) on first pregnancy whichever is earlier.
These rules were challenged by certain air hostesses as discriminatory and violative of Article
14 of the Constitution as similar provisions did not apply to male stewards. While the retiring
age of air hostesses was 35 years, extendable to 45 years at the option of Managing Director,
which was an arbitrary power vested in him, a male steward could work upto 58 years of age.
The Supreme Court on the condition that an air hostess should not marry before the completion
of four years of service held that the provisions did not suffer from any constitutional infirmity.
The Court held that the provisions of Regulation 46 does not suffer from any unreasonableness
or arbitrariness and thus, not violative of Article 14. Thus, this provision was upheld by the
Supreme Court.
Regarding the provision which barred pregnancy on getting married after four years, the Court
observed that, after having taken the air hostess in service and utilizing her service for four
years, to terminate her service if she becomes pregnant amounts to compelling the poor air
hostesses not to have any children and thus interfere with and diverts the ordinary course of
human nature. The court declared that the provision was unreasonable and arbitrary which
shook the conscience of the Court.
About the provision that prescribed the retiring age of Air Hostesses at 35 years, which may be
extended to 45 years at the option of the Managing Director, it was argued that there were
several reasons, which prompted the Management to persuade the Government to make this
Regulation. The Court rejected the argument by making a very bold and human declaration. It
said,
"This argument seems to be based on pure speculation and on artificial

understanding of the qualities of fair sex and it amounts to an open insult
to the institution of our sacred womanhood. It is idle to contend that
young women with pleasing manners should be employed so as to act as
show pieces in order to cater to the varied interests of the passengers,
when infact older women, with greater experience and goodwill can look
after the comforts of strangers in a better way as compared to the
younger women."
The Court also held that the Regulation conferred a wide and uncontrolled discretion
on the Managing Director to extend the retiring age by ten years and hence violated
Article 14 of the Constitution on the ground of excessive delegation of powers. Thus,
this regulation was struck down by the Court and it was held that air hostesses could
work upto the age of 45 years, unless found medically fit. The Court told Air India to
frame new rules in this regard.
Sowmitri Vishnu v. Union of India
This is another important case, which highlights the biased attitude of the judiciary. In this case,
the constitutional validity of Section 497 of IPC was challenged as being discriminatory. Here
a woman (Sowmitri Vishnu) filed a writ petition in the Supreme Court alleging that Section
497 of IPC, under which her husband had prosecuted her paramour for adultery, was violative
of the Constitution.
Section 497 holds a man guilty of the offence of adultery, if he commits sexual intercourse
with a woman who is and whom he knows or has reason to believe to be the wife of another
man, without the consent or connivance of that man, but with the consent of the woman. In
such condition, the woman shall not be punishable as an abettor. It was contended on behalf of
the petitioner that Sec. 497 of IPC is violative of Art. 14 of the Constitution because it
unjustifiably denies to women the right which is given to men by making an irrational
classification between men and women. It was argued that Sec. 497 enabled the husband to
prosecute the adulterer but did not allow a wife to prosecute
the woman who had adulterous relationship with her husband or did not confer any right on the
wife to prosecute the husband who had adulterous relations with another women. Hence the
section was clearly gender discriminatory. It was based on a kind of "Romantic Paternalism"
which stemmed from the assumption that women, like chattels were the property of men.
When asked as to why the offence of adultery can be committed by a man and not by a woman.
Chief Justice Chandrachud said, "It is commonly accepted that it is the man who is the seducer
and not the woman."
The Judge further said in this regard, "The contemplation of the law, evidently is that the wife,
who is involved in an illicit relationship with another man, is a victim and not the author of the
crime. The offence of adultery, as defined in Section 497, is considered by the Legislature as
an offence against the sanctity of the matrimonial home, an act which is committed by a man,
as it generally is. Therefore, those who defile that sanctity are brought within the net of the
law."
The Supreme Court, in the light of above observations rejected the petition and upheld the
validity of the Section.
Moreover, if the sexual intercourse is committed with the consent of the husband and of course,
also of the woman, no offence is committed. Therefore, this section seems to be less concerned
with punishing conjugal infidelity but is more clearly based on feudal concept of married
woman being the property of her husband. This section thus, clearly violates Art. 15(2) which
forbade discrimination on the ground of sex. So, the challenge to the constitutional validity of
the section was quite valid. But the decision to upheld the Section by the Hon'ble Court reveals,
that the learned judge seemed to be influenced by patriarchal ideology and values. Even his
praise for women's qualities like, women being less promiscuous than men (where he said that
man is often the seducer and not the woman) seems to be just a subtle glorification of women's
subordination because those women who fit in the patriarchal framework of the society are
often idealized.
Mohd. Ahmad Khan vs. Shah Bano Begum & Ors.
The Mohd. Ahmad Khan vs. Shah Bano Begum & Ors. or the Shah Bano maintenance case is
seen as one of the legal milestones in battle for protection of rights of Muslim women. While
the Supreme Court upheld the right to alimony in the case, the judgment set off a political battle
as well as a controversy about the extent to which courts can interfere in Muslim personal law.
The case laid the ground for Muslim women’s fight for equal rights in matters of marriage and
divorce in regular courts, the most recent example being the Shayara Bano case in which the
Supreme Court invalidated the practice of instant triple talaq.
In April 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition in court demanding
maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in
Indore, Madhya Pradesh. Khan had granted her irrevocable talaq later in November. The two
were married in 1932 and had five children — three sons and two daughters. Shah Bano’s
husband had asked her to move to a separate residence three year before, after a prolonged
period of her living with Khan and his second wife.
Shah Bano went to court and filed a claim for maintenance for herself and her five children
under Section 123 of the Code of Criminal Procedure, 1973. The section puts a legal obligation
on a man to provide for his wife during the marriage and after divorce too if she isn’t able to
fend for herself. However, Khan contested the claim on the grounds that the Muslim Personal
Law in India required the husband to only provide maintenance for the iddat period after
divorce.
Iddat is the waiting period a woman must observe after the death of her husband or divorce
before she can marry another man. The length of the iddat period is circumstantial. The period
is usually three months after either of the two instances. In case the woman is pregnant, the
period carries on until the childbirth.
Khan’s argument was supported by the All India Muslim Personal Law Board which contended
that courts cannot take the liberty of interfering in those matters that are laid out under Muslim
Personal Law, adding it would violate The Muslim Personal Law (Shariat) Application Act,
1937. The board said that according to the Act, the courts were to give decisions on matters of
divorce, maintenance and other family issues based on Shariat.
After detailed arguments, the decision was passed by the Supreme Court of India in 1985. On
the question whether CrPC, 1973, which applies to all Indian citizens regardless of their
religion, could apply in this case.
Then Chief Justice of India Y.V. Chandrachud upheld the decision of the High Court that gave
orders for maintenance to Shah Bano under CrPC. For its part, the apex court increased the
maintenance sum.
The case was considered a milestone as it was a step ahead of the general practice of deciding
cases on the basis of interpretation of personal law and also dwelt on the need to implement
the Uniform Civil Code. It also took note of different personal laws and the need to recognise
and address the issue of gender equality and perseverance in matters of religious principles.
Justice Y.V. Chandrachud said in his decision: “Section 125 was enacted in order to provide a
quick and summary remedy to a class of persons who are unable to maintain themselves. What
difference would it then make as to what is the religion professed by the neglected wife, child
or parent? Neglect by a person of sufficient means to maintain these and the inability of these
persons to maintain themselves are the objective criteria which determine the applicability of
section 125. Such provisions, which are essentially of a prophylactic nature, cut across the
barriers of religion. The liability imposed by section 125 to maintain close relatives who are
indigent is founded upon the individual’s obligation to the society to prevent vagrancy and
destitution. That is the moral edict of the law and morality cannot be clubbed with religion.”
The following events were unfavourable to a great extent with the then Rajiv Gandhi Congress
government, elected in 1984, passing the Muslim Women (Protection on Divorce Act), 1986.
This law overturned the verdict in the Shah Bano case and said the maintenance period can
only be made liable for the iddat period. The new law said that if a woman wasn’t able to
provide for herself, the magistrate had the power to direct the Wakf Board for providing the
aggrieved woman means of sustenance and for her dependent children too.
Shah Bano’s lawyer Danial Latifi had challenged the Act’s Constitutional validity. The apex
court, though upholding the validity of the new law, said the liability can’t be restricted to the
period of iddat. One of the key points of relevance in the verdict that set it apart from previous
cases was the recognition of women’s claim for treatment with equality and dignity,
particularly in cases of marriage.
Significantly, Shah Bano later withdrew the maintenance claim she had filed.
Dowry
The practice of dowry has been an age-old custom in Indian society. It is proving a menace to
the society and has taken the shape of commercial transactions. With the noble objective of
putting a stop to the evil practice of dowry. Dowry Prohibition Act was brought about in 1961
and was amended twice in 1984 and 1986 to streamline its provisions and make the penalties
more stringent.
A controversy arose regarding the definition of dowry holding that in view of the very
definition of "dowry" which has "giving" or agreement to give as its basic ingredients, mere
demand cannot be termed as an offence unless there was "giving" or "agreement to give". This
controversy was highlighted in a case, Nunnu Venkateshwarlu v. State ofAndhra Pradesh,
in which the deceased had died an unnatural death after 5 years of marriage. Though there was
ample evidence to show that the demands for dowry were made, the High Court of A.P.
observed that the prosecution has to prove that there was prior agreement by the parents of the
girl to the husband or the in-laws to pay a valuable security, money, etc. The High Court further
held that since the demands made by the accused were not demands which were agreed to be
paid by the father of the deceased at the time of the marriage, they would not amount to
demands for dowry. The High Court in this case seems to have been influenced by the words
'agreed to be given' in the definition of dowry in the Dowry Prohibition Act, 1961.
The above judgement was in total contrast to the apex Court judgement in State of HP vs.
Nikku Ram. In this case, the Supreme Court interestingly started off the judgement with the
words 'Dowry, dowry, dowry'. The S.C. gave the explanation as to why they have mentioned
the word 'dowry' thrice. This is because demand for dowry is made on three occasions: (i)
before marriage, (ii) at the time of marriage, and (iii) after the marriage.'' The S.C. has further
explained in this case that though the definition of 'dowry' is stated as 'property or valuable
security given or agreed to be given....', demands made after the marriage could also be a part
of the consideration because an implied agreement has to be read to give property or valuable
securities, even if asked after the marriage, as a part of consideration for marriage. The Court
also held that the amended definition of 'dowry' makes it clear that the property or the valuable
security need not be as a consideration for marriage, as was required under the unamended
definition. Moreover, the addition of the words "any time" before the expression "after the
marriage" would clearly show that even if the demand is long after the marriage the same could
constitute dowry if other requirements of the section are satisfied.
In State of Maharashtra v. Ashok Chotelal Shukla, a well-publicized case, the deceased
wife Vibha Shukla was found burnt while the husband was present in the house. A large amount
of dowry was paid at the time of marriage and there were several subsequent demands for
dowry. When the wife (Vibha Shukla) delivered a daughter, the family did not accept the child
and she was left behind in her parents’ house. Inspite of all this, the Bombay H.C. set aside the
order of conviction of the sessions court by acquitting the husband of the charge of murder and
harassment under Section 498-A of IPC. The Court held that the offence of murder could not
be proved beyond reasonable doubt and further, that occasional cruelty and harassment cannot
be construed as cruelty under Section 498-A IPC.
Prostitution:
The menace of prostitution is growing at an alarming rate in our country. The Immoral Traffic
(Prevention) Act, 1956 was enacted with the object of abolishing trafficking in women and
girls. The laws on trafficking, as in the case with other legislations have gone through judicial
scrutiny and several decisions and directions have emanated from various fora. The
proceedings and judgements of the Courts have bought in new dimensions and responses in the
policies, programmes and their implementation in preventing and combating trafficking.
Gaurav Jain v. Union of India: This is another case wherein a public interest litigation was
filed seeking improvement in the plight of prostitutes/fallen women and their progeny.
Expressing its concern for the constant increase of prostitution, the Supreme Court passed an
order directing, interalia, the constitution of a committee to make an in-depth study of the
problems of prostitution, child prostitutes and children of prostitutes to help evolve suitable
schemes for their rescue and rehabilitation.
Pre-natal Diagnostic Techniques:
Pre- natal Diagnostic Techniques were actually meant for detecting serious genetic defects
early in pregnancy so that if needed, the foetus can be aborted. However, today these techniques
are widely used for sex determination and selective abortion of female foetuses. To check this
misuse. Pre-natal Diagnostic Technique (Regulation and Prevention of Misuse) act, 1994 was
passed. It aims to regulate the use of pre-natal diagnostic techniques for legal and medical
purposes and to prevent its misuse. Under PNDT Act, pre-natal diagnosis for the purpose of
sex determination is prohibited. The Supreme Court in a case namely Centre for Enquiry into
Health and Allied Themes (CEHAT) v. Union of lndia issued various directions to the
Centre, the States and to Union Territories to implement the provisions of the PNDT Act,
banning sex determination and sex selection to prevent female foeticide.
Maternity Benefits:
Maternity Benefit is a protection given to the women workers by way of payment of cash,
medical bonus and leave with wages for a certain period before and after child birth. This
benefit is paid on the daily average basis for a maximum period of 12 weeks, six weeks
(including the day of delivery) proceeding the day of delivery and six weeks following that
date.
In Municipal Corporation of Delhi v. Delhi v. Female Worker In this case female muster
roll workers (which were casual and daily wage workers) engaged by Municipal Corporation
of Delhi raised a demand for grant of maternity leave which was made available to regular
female workers but was denied to them on the ground that their services were not regularized
and thus, were not entitled to any maternity leave.
A claim was filed on their behalf by the Delhi Municipal Workers Union in which it was stated
that the Municipal Corporation of Delhi employs a large number of persons including female
workers on muster roll and they were made to work in that capacity for years together though
they were recruited against the work of perennial nature. It was further stated that the nature of
duties and responsibilities performed and undertaken by the muster roll employees were the
same as those of regular employees. The women employed on muster roll, which have been
working with the Municipal Corporation of Delhi for years together, had to work very hard in
construction projects and maintenance of roads including the work of digging trenches, etc. but
the Corporation does not grant any maternity benefit to female workers who are required to
work even during the period of mature pregnancy or soon after the delivery of child. It was
pleaded that the female workers required the same maternity benefit as were enjoyed by regular
female workers under the Maternity Benefit Act, 1961. The Corporation in its defence pleaded
that the provisions under the Maternity Benefit Act, 1961 were not applicable to the female
workers, engaged on muster roll, as they all were engaged only on daily wages.
The Supreme Court in this regard said, "There is nothing in the Maternity Benefit Act which
entitles only regular women employees to the benefit of maternity leave and not to those who
are engaged on casual basis or on muster roll on daily wage basis."
THE NATIONAL COMMISSION FOR WOMEN
The idea of establishing a national commission for women is not new. The United Nations
Commission on the Status of Women in its Twenty-fifth Report had recommended to all
member states the establishment of national commissions or similar bodies "with a mandate to
review, estimate and recommend measures and priorities to ensure equality between men and
women and the full integration of women in all spheres of national life." Acting on this
resolution and on the demands of several women organisations, the Government of India set
up a committee in 1971 known as the Committee on the Status of Women. In 1974, the
committee submitted a comprehensive report with a summary of its recommendations on, (/)
the socio-cultural setting of women's status; (ii) women and the law; (iii) roles, rights and
opportunities for economic participation; (iv) educational development; (v) political status; and
(vi) policies and programmes for women's welfare and development. In order to ensure the
implementation of various measures, the committee recommended the constitution of statutory,
autonomous commissions at the Centre and in the states.
In January 1992, the National Commission for Women was set up by an Act of Parliament with
the Specific mandate to study and monitor all matters relating to the constitutional and legal
safeguards provides for women, review the existing legislation, to suggest amendments
wherever necessary, and safeguard the rights and entitlements of women. The commission
extends financial support to NGOs and educational institutions to conduct legal awareness
programme to enable women to become aware of their rights.
The Committee on the Status of Women in India (CSWI) recommended nearly two decades
ago, the setting up of a National Commission for women to fulfil the surveillance functions to
facilitate redressal of grievances and to accelerate the socioeconomic development of women.
The National Commission for Women was set up as statutory body in January 1992 under the
National Commission for Women Act, 1990 (Act No. 20 of 1990 of Govt of India) to:
1. review the Constitutional and Legal safeguards for women;
2. recommend remedial legislative measures;
3. facilitate redressal of grievances and

4. Advise the Government on all policy matters affecting women.
In keeping with its mandate, the Commission initiated various steps to improve the status of
women and worked for their economic empowerment during the year under report. The
Commission completed its visits to all the States/UTs except Lakshdweep and prepared Gender
Profiles to assess the status of women and their empowerment. It received a large number of
complaints and acted suo-moto in several cases to provide speedy justice. It took up the issue
of child marriage, sponsored legal awareness programmes, Parivarik Mahila Lok Adalats and
reviewed laws such as Dowry Prohibition Act, 1961, PNDT Act 1994, Indian Penal Code 1860
and the National Commission for Women Act, 1990 to make them more stringent and effective.
It organized workshops/consultations, constituted expert committees on economic
empowerment of women, conducted workshops/seminars for gender awareness and took up
publicity campaign against female foeticide, violence against women, etc. in order to generate
awareness in the society against these social evils.
Constitution of The Commission
The National Commission for Women is constituted under section 3 National Commission for
Women Act, 1990 (Act No. 20 of 1990 of Govt.of India)
1. The Central Government shall constitute a body to be known as the National Commission
for Women to exercise the powers conferred on and to perform the functions assigned to, it
under this Act.
The Commission shall consist of: -
a. A Chairperson, committed to the cause of women, to be nominated by the Central
Government.
b. five Members to be nominated by the Central Government from amongst persons of ability,
integrity and standing who have had experience in law or legislation, trade unionism,
management of an industry potential of women, women’s voluntary organizations (including
women activist), administration, economic development, health, education or social welfare;
Provided that at least one Member each shall be from amongst persons belonging to the
Scheduled Castes and Scheduled Tribes respectively;
(1) a Member-Secretary to be nominated by the Central Government who shall be: - (a) An
expert in the field of management, organizational structure or sociological movement, or an
officer who is a member of a civil service of the Union or of an all-India service or holds a civil
post under the Union with appropriate experience.
The chairperson and all members have to be nominated by the Central Government for a term
of three years. Under certain conditions the government can remove them (except civil servant)
after giving a hearing. The commission can appoint committees for dealing with special issues
and co-opt other persons as members of various committees.
Functions of The Commission
(a) Inquiry and Investigation

The NCW new also has the powers of a civil court while investigating and examining matters
relating to the safeguards provided for women under the Constitution and other laws. It is
empowered to consider matters relating to deprivation of women's rights and take up the issues
with the appropriate authorities on its own. It looks into complaints and takes suo motu notice
of matters relating to non-implementation of laws and 'non-compliance of policy decisions,
guidelines or instructions enacted and aimed at, mitigating hardships, ensuring welfare, and
achieving equality and development, and then take up the issues arising out of such matters
with the appropriate authorities.
(b) Action Research
The new conducts studies and investigations into problems arising out of discrimination and
atrocities against women and recommends strategies for their removal. NCW members
participate and advise on the planning process of socio-economic development of women,
suggest measures to promote their representation in all spheres and evaluate their progress. The
NCW is also required to review the safeguards provided for women in the Constitution and
other laws, study their working, recommend amendments to meet any inadequacies or
shortcomings, and suggest measures for more effective implementation. For instance, in
furtherance of its mandate, the now has urged amendments to the Indian Penal Code to tighten
the curbs on trafficking of minor girls. It has also recommended that child marriage be made a
non-bail able offence and be declared to be void under the Child Marriage Restraint Act (1929).
Further, the NCW has formulated Bills on Prevention of Sexual Harassment at Workplace and
the Domestic Violence to Women (Prevention) Bill 1994, in consultation with members of the
civil society
(c) Legal Intervention
The Parivarik Mahila Lok Adalat, (PMLA) is an innovative mechanism developed by the
NCW, which has taken up 7500 cases so far. It deals with matters pertaining to family law,
encouraging settlement of disputes outside the formal legal framework and aiming to empower
women in the justice delivery mechanism. Mi decisions of the PMLA are legally binding on
both parties to the dispute. According to Section 10 of the National Commission for Women
Act, 1990, the National Commission for Women shall perform all or any of the fallowing
functions, namely:
[1] Investigation and Examination - investigate and examine all matters relating to the
safeguards provided for women under the Constitution of India, 1950 and other laws;
[2] Presentation of Reports - Present reports to the Central Government, annually and at such
other times as the Commission may deem fit, reporting upon the working of those safeguards;
[3] Recommendations - make in such reports recommendations for the effective
implementation of those safeguards for improving the conditions of women by the Union or
any State;
[4] (Review - review, from time to time, the existing provisions of the Constitution of India,
1950 and other laws affecting women and recommend amendments thereto so as to suggest
remedial legislative measures to meet any lacunae, inadequacies or shortcomings in such
legislations;
[5] Taking up of cases of Violation - take up the cases of violation of the provisions of the
Constitution of India, 1950 and of other laws relating to women with the appropriate
authorities;
[6] Suo Motu Notice - looks into complaints, and take suo motu notice of matters relating to:-
[7] Women's Rights - deprivation of women's rights; enacted to provide protection to women
and also to achieve the objective of equality and development.
[8] Policy Decisions - non-compliance of policy decisions, guidelines or instructions aimed at
mitigating hardships and ensuring welfare and providing relief to women; and take up the issue
arising out of such matters with appropriate authorities;
[9] Special Studies and Investigation - call for special studies or investigation into specific
problems or situation arising out of discrimination and atrocities against women and identify
the constraints so as to recommend strategies for their removal;
[10] Promotional Research - undertake promotional research so as to suggest ways of
ensuring due representation of women in all spheres and identify factors responsible for
impeding their advancement;
[11] Participation in Planning - participate and advise on the planning process of socio-
economic development of women;
[12] Evaluation - evaluate the progress of the development of women under the Union and
any State;
[13] Inspection - inspect or cause to be inspected a jail, remand home women's institution or
other place of custody where women are kept as prisoners;
[14] Funding - fund litigation, involving issues affecting a large body of women;
[15] Reporting - make reports on any matter pertaining to women and in particular various
difficulties under which women toil.
Power of Women's Commission
According to Section 10(4) of the National Commission for Women Act, 1990, the National
Commission for women shall have all the powers of a civil court trying a suit, in respect of the
following matters, namely: -
(a) Summoning and enforcing the attendance of any person from any part of Indian and
examining him on oath;
(b) Requiring the discovery and production of any document;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public record or copy thereof from any court or office;
(e) Issuing commission for the examination of witnesses and documents and
(f) any other matter which may be prescribed.
Grants by the Central Government
As provided under Section 11 of the National Commission for Women Act, 1990, the Central
Government is empowered to grant such sum of money to the National Commission for
Women,' however, with prior approval of the Parliament. The Commission may spend such
sum of money for the purpose of performing such functions as laid down under the said Act.
Annual Report - Under Section 13 of the National Commission for Women Act, 1990, the
National Commission for Women is duty bound to prepare annual report giving a full account
of its activities during the previous financial year and forward a copy thereof to the Central
Government.
Central Government to consult commission (Sec. 16)
The central government shall consult the commission on all major policy matters affecting
women.
Complaints and Counselling Cell
The Complaints and Counselling Cell of the commission processes the complaints received
oral, written or suo moto under Section 10 of the NCW Act. The complaints received relate to
domestic violence, harassment, dowry, torture, desertion, bigamy, rape, and refusal to register
FIR, cruelty by husband, deprivation, gender discrimination and sexual harassment at work
place. The complaints are tackled as below: -
• Investigations by the police are expedited and monitored.

• Family disputes are resolved or compromised through counselling.
• For serious crimes, the Commission constitutes an Inquiry Committee which makes
spot enquiries, examines various witnesses, collects evidence and submits the report
with recommendations. Such investigations help in providing immediate relief and
justice to the victims of violence and atrocities. The implementation of the report is
monitored by the NCW. There is a provision for having experts/lawyers on these
committees.
The State Commission, the NGOs and other experts are involved in these efforts. The
complaints received show the trend of crimes against women and suggest systemic changes
needed for reduction in crimes. The complaints are analyzed to understand the gaps in routine
functioning of government in tackling violence against women and to suggest corrective
measures. The complaints are also used as case studies for sensitization programmes for the
police, judiciary, prosecutors, forensic scientists, defense lawyers and other administrative
functionaries.
Power to make rules (S. 17)

The central Government may by notification in the official Gazette make rules for Carrying
out the provision of this Act. Every rule made under this shall be approved by both the house
of parliament. Some works are done by NCW regarding women presently context in the
women’s rights and freedom: -
1. The National Commission for women has submitted a set of role recommendations to the
centre to avoid and address cases of sexual harassment at the work place.
2. NCW has disected Delhi police to inquire into a complaint of alleged indecent representation
of women on condom on covers of a company and revert to it with in thirty days.
3. The National Commission for women has asked the Uttar Pradesh Government to probe a
complaint against Samajwadi party leader.
4. The National Commission for women advised the Union Health Ministry to push the time
limit for abortions from 20 weeks to 24 weeks of pregnancy.
5. NCW wants separate clauses on acid attacks and stalking of women in the Indian Penal Code
and stringent punishment for the crime.
Achievements of The Commission
Ms. Rupali Jain was reinstated as a teacher, due to the actions of the Commission, after her
services were terminated at a school run by a non – governmental organization, without any
substantial reasons.
In another matter, Smt. Savitri, approached the Commission regarding exploitation of her deaf
and dumb daughter, who, along with her child, had been deserted by her husband and in laws,
allegedly due to her disabilities. The Commission took up the matter and the husband were
located, counselled and is currently agreed to rehabilitate with his wife and daughter.
The Commission was also successful in securing the release of Mrs. Sudha Bala (name
changed) who was allegedly gang-raped by BSF personnel in early 2002. The victim along
with her young daughter was wrongly detained in Presidency Jail in Kolkata, after the alleged
rape. The matter was taken up by the Commission for the release of rape victim from the jail.
The Commission’s actions resulted in the release of Mrs. Das from jail, who was given into
safe custody to her brother.
The Commission has intervened in numerous court cases, in order help women whose rights
have been violated. The Commission intervened in Bhateri gang rape case and supported the
victim and provided for her protection. In the Maimon Baskari's Nuh case the Commission
fought for the right of the victim to marry a person of her own choice and against out dated
customs. In the matter of Fakhruddin Mubarak Shaik v. Jaitunbi Mubarak Shaik the
Commission intervened to seek maintenance beyond the iddat period for Muslim women.
Besides these achievements, the Legal Cell of the Commission has proposed amendments to a
number of Acts and has proposed a number of new bills. The Commission has proposed
amendments to the Hindu Marriage Act, 1955, Medical Termination of Pregnancy Act, 1971
and the Indian Penal Code, 1960. The Commission has also proposed bills such as the Marriage
Bill of 1994, the Domestic Violence to Women (Prevention) Bill of 1994 and the Prevention
of Barbarous and Beastly cruelty against Women Bill, 1995 amongst others.
Some of these bills, such as the Domestic Violence to Women (Prevention) Bill, have recently
been passed. The Commission has also intervened in a number of court cases and these have
been mentioned in the chapter dealing with the functions of the Commission. The Research
Cell of the Commission has carried out a number of studies pertaining to topics such as social
mobilisation, maintenance and divorcee women, women labour under contract, gender bias in
judicial decisions, family courts, violence against women, women access to health and
education in slums and similar topics.
A number of inquiry commissions have also been established by the Commission, under
Section 8 (1) of the Act of 1990, to look into matters such as Law and legislation, Political
empowerment, Custodial justice for women, Social security, Panchayati Raj, Women and
media, Development of Scheduled Tribe Women, Development of women of weaker sections,
Development of women of minority communities, Transfer of technology in agriculture for
development of women. Among other highlights are included the anti-child marriage agitations
in Rajasthan, Madhya Pradesh, Andhra Pradesh and Uttar Pradesh. Public hearings on
problems of Muslim women, impact of globalization on women, on land related problems,
economic empowerment of tribal women have been successfully organized by the have been
organized by the Commission all over the country.
Limitations of the Commissions
[1] The commission is dependent on the grant from the Union Government
[2] The commission does not have the power to select own members.
[3] The power is vested with the Union Government.
[4] The commission has no right to concrete legislative power
[5] It has only to power recommend amendments and submit reports with are not binding on
state or Union Government.
[6] The Commission’s Jurisdiction is not operative in Jammu and Kashmir.
[7] Financial assistance is so less, we cannot awareness of legal programme.
[8] The National Commission for women in India seizes women’s cause only when it is brought
to light. Unreported cases of oppression and suppression of women are not attended to.
[9] In rural sector still there is lack of awareness education, opportunities and basic facilities
for women for economic of empowerment.
Mrs. Rekha Sharma is the Current Chairperson of the National Women’s Commission.
Kerala State Women’s Commission
The Kerala Women's Commission Act was passed with the consent of the President on 15-9-
1995. The first Commission, formed during the tenure of Shri. A. K. Antony as Chief Minister
came into force on 14-3-1996. The Commission was headed by Smt. Sugatha Kumari, the
eminent poetess and social worker. The Commission also constituted of 3 other Members and
2 ex-officio members who are noted dignitaries of the society. In 1997 the newly constituted
commission was reconstituted as per the act and started function after the inauguration by
Smt.Suseela Gopalan, Former Minister of Social Welfare.
The Kerala Women's Commission is a commission constituted under Section 5 of The Kerala
Women's Commission Act, 1990. According to the Act, the Commission was constituted "to
improve the status of women in the State of Kerala and to inquire into unfair practices affecting
women and for the matters connected therewith or incidental thereto (The Kerala Women's
Commission Act, 1990)
The commission performs as a statutory body, it performs on all matters relating to women's
problems. The commission inquire into the complaints of any unfair practice and take on
decisions. Then the commission will recommend to the government, what action to be taken in
that matter. The investigations relating to the issue concerning women is carried out by the
head of the investigation wing, Director of KWC.
The commission is also responsible to improve the social status of women. The commission
ensures to guarantee equal opportunity to women in the state public service and state public
undertakings in the matter of promotion sand recruitment and if necessary the commission
report or recommend it to the government action.
Functions of The Commission the Commission shall perform all or any of the following
functions viz.
1. Inquire into any unfair practice, take decision thereon and to recommend to the
Government the action to be taken in that matter.
2. Cause investigations to be made by the Director on issues of importance concerning

women and issues concerning unfair practice and to report thereon to the Government
on the corrective measures to be taken
3. Submit to the Government annual reports on

i. The lacunae, inadequacies, or shortcomings in the laws in force which
affect the constitutional right to equality and fair treatment of women
and also on the remedial legislative measures to be taken to meet the
situation
ii. The monitoring of the working of laws in force concerning women with
a view to identifying the areas where the enforcement of laws is not
adequately effective or has not been streamlined and recommending

executive or legislative measures to be taken
iii. Monitoring the recruitments made to State Public Services and State
Public Undertakings and promotions within the said services and
scrutinising the rules and regulations governing such recruitments and
promotions with a view to reporting to the government action, if any,
required to guarantee equal opportunity to women in the matter of such
recruitments and promotions.
4. (a) inspect or cause to be inspected, by the Director or any officer of the Commission
authorised by the Commission in that behalf, prisons, police stations, lock-ups, sub-
jails, rescue homes or other places of custody where women are kept as prisoners or
otherwise, or shelters for women or other places run by the Government or any of its
agencies including agencies receiving aid from the Government for the purpose of
offering rescue or shelter to women, or hostels intended for women or girls run by any
person and such other places wherein unfair practice to women is complained of and
cause further inquiries to be made about the treatment that women and girls are
subjected to at such places and to report to the Government for taking remedial action.
(b) In cases where the Commission is of the view that any public servant has been
grossly negligent or grossly indifferent in regard to the discharge of his duties in relation
to the protection of the interests of women recommend to the concerned disciplinary
authority to initiate disciplinary action
5. Recommend to Government, the welfare measures to be adopted and implemented by

the Government with a view to ameliorating the conditions of women; (vi) Formulate
a comprehensive and affirmative scheme for securing equal opportunities to women
and devise a programme for implementing such scheme which shall be forwarded to
the Government for approval and on obtaining approval thereof with or without
modifications, implement the same
6. Empower the Director to recommend to the appropriate authority to take prosecution

proceedings in respect of offences committed against women under any statute
providing for penalty for violation of the provisions of such statute
7. Maintain comprehensive Data Bank relating to the social economic and political
conditions of women including comparative study, updating the same from time to time
making available such data for use in actions for vindication of the rights of women
8. Recommend to government to initiate legislation for removal of discrimination in the

case of inheritance, guardianship, adoption and divorce or for matters relating to the
safeguarding of the dignity of women and the honour of motherhood
9. Call for special studies or investigations into specific problems or situations arising out
of discrimination and atrocities against women and identify the constraints so as to
recommend strategies for their removal
10. Participate and advise on the planning process of socio-economic development of

women
11. Fund litigation involving issues affecting a large body of women
12. Make periodical reports to the Government on any matter pertaining to women and in
particular various difficulties under which women toil
13. Undertake promotional and educational research so as to suggest ways of ensuring due
representation of women in all spheres and identify factors responsible for impeding
their advancement, such as, lack of access to housing and basic services, inadequate
support services and technologies for, reducing drudgery and occupational health
hazards and for increasing their productivity
14. Any other matter, which may be referred to it by the Government.
Composition
The Office of the Kerala Women's Commission consists of two sections.
Presently the Commission has staff strength of 51 who are working on deputation basis from
various Departments of the State Government. For the purpose of investigation and the speedy
redressal of petitions, the Commission has a Director of SP rank. He is assisted by a Circle
Inspector of Police, a Women Sub-Inspector of Police, 2 Women Police Constables and 2
Police Constables.
The Administration wing of the Commission is headed by a Member Secretary, an
Administrative Officer to control general administrative affairs, a Finance Officer to look into
all financial matters of the Commission and a Law Officer to advise the Commission on all
legal matters.
Module 5
Human Rights and the Child – Rights of the Child – International Convention of the Rights of
the Child – Child Rights in India.
HUMAN RIGHTS AND THE CHILD
Who is a child?
According to International law, a ‘child ‘means every human being below the age of 18 years
unless under the law applicable to the child majority is attained earlier. This is a universally
accepted definition of a child and comes from the United Nations Convention on the Rights of
the Child (UNCRC), an international legal instrument accepted and ratified by most countries.
Why do children need special care and attention?
1. Children are most vulnerable than adults to the condition under which they live.
2. They are more affected than any other age group by the actions and inaction of the
government and the society.
3. In most societies, including ours, views persist that children are their parent’s property,
or are adults in the making, or are not yet ready to contribute to the society.
4. Children are not seen as a people who have a mind of their own, a view to express, the
capacity to make choice and an ability to decide.
5. Instead of being guided by adults, their life is decided by adults. Too often, their voices
are not heard.
6. Children are particularly vulnerable to exploitation and abuse.
Rights of children
Children as well as adults have human rights. Children also have the right to special protection
because of their vulnerability to exploitation and abuse.
Children’s rights are the human rights of children with particular attention to the rights of
special protection and care afforded to minors. The 1989 Convention on the Rights of the Child
(CRC) defines a child as “any human being below the age of 18 years unless under the law
applicable to the child, majority is attained earlier”. Children’s rights includes their right to
association with both parents, human identity as well as the basic needs for physical protection,
food, universal state-paid education, health care, and criminal laws appropriate for the age and
development of the child, equal protection of the child’s civil rights, and freedom from
discrimination on the basis of child’s race, gender, sexual orientation, gender identity, national
origin, religion, disability, colour, ethnicity, or other characteristics. Interpretations of
children’s rights range from allowing children the capacity for autonomous action to the
enforcement of children being physically, mentally and emotionally free from abuse, though
what constitutes ‘abuse’ is a matter of debate.
As minors by law, children do not have autonomy or the right to make decisions on their own
for themselves in any known jurisdiction of the world. Instead their adult caregivers, including
parents, social workers, teachers, youth workers, and others are vested with that authority,
depending on the circumstances. Some believe that this state of affairs gives children
insufficient control over their own lives and causes them to be vulnerable.
Children are to be regarded as a minority group towards whom society needs to reconsider the
way it behaves. Researchers have identified children as needing to be recognized as participants
in society whose rights and responsibilities need to be recognized at all ages.
Rights of the Child
A number of rights have been stipulated in the Convention which includes:
• Right to life
• Right to acquire nationality
• Right to freedom of expression
• Right to freedom of thought, conscience and religion
• Right to freedom of association and peaceful assembly
• Right to privacy
• Right to family environment
• Right to education
• Right to standard living adequate for the child’s physical, mental, spiritual and social
development
• Right to benefit from social security
• Right to the enjoyment of the highest attainable standard of health and facilities for
treatment of illness and rehabilitation of health
• Right to protection of the law against arbitrary or unlawful interference with his or her
privacy, family, home or correspondence
• Right against exploitation of child labor
• Right against secual exploitation
• Right against abduction, sale or traffic
• Right against other forms of exploitation prejudicial to any aspect of the child’s welfare.
INTERNATIONAL CONVENTION OF THE RIGHTS OF THE CHILD
The United Nations Convention on the Rights of the Child (commonly abbreviated as
the CRC or UNCRC) is a treaty which sets out the civil, political, economic, social, health and
cultural rights of children. The Convention defines a child as any human being under the age
of eighteen, unless the age of majority is attained earlier under national legislation.
Nations that ratify this convention are bound to it by international law. Compliance is
monitored by the UN Committee on the Rights of the Child, which is composed of members
from countries around the world. Once a year, the Committee submits a report to the Third
Committee of the United Nations General Assembly, which also hears a statement from the
CRC Chair, and the Assembly adopts a Resolution on the Rights of the Child.
Governments of countries that have ratified the Convention are required to report to, and appear
before, the United Nations Committee on the Rights of the Child periodically to be examined
on their progress with regards to the advancement of the implementation of the Convention
and the status of child rights in their country. Their reports and the committee's written views
and concerns are available on the committee's website.
The UN General Assembly adopted the Convention and opened it for signature on 20
November 1989 (the 30th anniversary of its Declaration of the Rights of the Child). It came
into force on 2 September 1990, after it was ratified by the required number of nations.
Currently, 196 countries are party to it, including every member of the United Nations except
the United States.
Two optional protocols were adopted on 25 May 2000. The First Optional Protocol restricts
the involvement of children in military conflicts, and the Second Optional Protocol prohibits
the sale of children, child prostitution and child pornography. Both protocols have been ratified
by more than 160 states.
A third optional protocol relating to communication of complaints was adopted in December
2011 and opened for signature on 28 February 2012. It came into effect on 14 April 2014.
Contents
The Convention deals with the child-specific needs and rights. It requires that the "nations that
ratify this convention are bound to it by international law". Ratifying states must act in the best
interests of the child. In all jurisdictions implementing the Convention requires compliance
with child custody and guardianship laws as that every child has basic rights, including
the right to life, to their own name and identity, to be raised by their parents within a family or
cultural grouping, and to have a relationship with both parents, even if they are separated.
The Convention obliges states to allow parents to exercise their parental responsibilities. The
Convention also acknowledges that children have the right to express their opinions and to
have those opinions heard and acted upon when appropriate, to be protected from abuse
or exploitation, and to have their privacy protected, and it requires that their lives not be subject
to excessive interference.
The Convention also obliges signatory states to provide separate legal representation for a child
in any judicial dispute concerning their care and asks that the child's viewpoint be heard in such
cases.
The Convention forbids capital punishment for children. In its General Comment 8 (2006) the
Committee on the Rights of the Child stated that there was an "obligation of all state parties to
move quickly to prohibit and eliminate all corporal punishment and all other cruel or degrading
forms of punishment of children". Article 19 of the Convention states that state parties must
"take all appropriate legislative, administrative, social and educational measures to protect the
child from all forms of physical or mental violence", but it makes no reference to corporal
punishment. The Committee's interpretation of this section to encompass a prohibition on
corporal punishment has been rejected by several state parties to the Convention, including
Australia, Canada and the United Kingdom.
The European Court of Human Rights has referred to the Convention when interpreting
the European Convention on Human Rights.
Child marriage and slavery
Some scholars link slavery and slavery-like practices for many child marriages. Child marriage
as well as slavery is not directly addressed by the Convention on the Rights of the Child.
States party and signatories
Currently 196 countries are parties to the treaty (some with stated reservations or
interpretations). This includes every member of the United Nations (except the United States),
plus the Cook Islands, Niue, the State of Palestine, and the Holy See. The United States has not
ratified it.
India ratified UNCRC on 11 December 1992, agreeing in principles all articles except with
certain reservations on issues relating to child labor. In India there is law that children under
the age of 18 should not work, but there is no outright ban on child labor, and the practice is
generally permitted in most industries except those deemed "hazardous". Although a law in
October 2006 banned child labor in hotels, restaurants, and as domestic servants, there
continues to be high demand for children as hired help in the home. Current estimates as to the
number of child laborers in the country range from the government's conservative estimate of
4 million children under 14 years of age to the much higher estimates of children's rights
activists, which hover around 60 million.
Little is being done to address the problem since the economy is booming and the nuclear
family is spreading, thereby increasing demand for child laborers. In India many people are
still suffering from non-nutritious food, many parents are still leaving their children on
riverside, in trains etc. Under the auspices of the UNICEF financed Odisha initiative
the Government of India is specifying the outline of a means of change and improvement in
child care, and many trusts such as childLine, Plan India and savethechildren too are taking
efforts to outdate child labor from India.[26] A few of the organisations who work with
children's rights in India are Plan India, CRY (Child Rights and You), Save the Children, Bal
Vikas Dhara-New Delhi, Bachpan Bachao Andolan, CHORD-Hyderabad.
The CRC is the first globally binding treaty for the protection of Children’s civil, political,
economic, social, and cultural rights. After the conclusion of the Convention the child became
an active subject of rights. CRC in fact, provided a bill of rights for children. The Convention
under Article 1 states a “child” means every human being, below the age of 18 years unless
under the law applicable to the child, majority is attained earlier.
Four general principles enshrined in the Convention:
• Article 2: – Non-discrimination
State parties must ensure that all children within their jurisdiction enjoy their
rights. The essential message is equality of opportunity.
• Article 3: - Best interest of the Child

When the authorities of a state take decisions which affect children, the best
interests of children must be primary consideration.
• Article 6: - The right to life, survival and development
• Article 12: - The views of the Child
Children have the right to be heard and to have their views taken seriously,
including any judicial or administrative proceedings affecting them
Optional protocols
Two optional protocols were adopted on 25 May 2000. The First Optional Protocol restricts
the involvement of children in military conflicts, and the Second Optional Protocol prohibits
the sale of children, child prostitution and child pornography. Both protocols have been ratified
by more than 160 states.
A third Optional Protocol relating to communication of complaints was adopted in December
2011 and opened for signature on 28 February 2012. It came into effect on 14 April 2014.
Universal Declaration of Human Rights 1948
The Universal Declaration of Human Rights is seen as a basis for all international legal
standards for children’s rights today. There are several conventions and laws that addresses
children’s rights around the world. A number of current and historical documents affect those
rights, including the Declaration of the Rights of the Child, drafted by Eglantyne Jebb in 1923,
endorsed by the league of Nations in 1924 and reaffirmed in 1934. A slightly expanded version
was adopted by the United Nations in 1946, followed by a much-expanded version adopted by
the General Assembly in 1959. It later served as the basis for the Convention on the Rights of
the Child.
The Universal Declaration of Human Rights (December 10, 1948) stipulated under Article 25,
para 2, that childhood is entitled to special care and assistance. The above principle along with
other principles of Universal Declaration concerning the child were incorporated in the
Declaration of the Rights of the Child adopted by the General Assembly on November 20,
1959. The ICCPR and ICESCR have also made provisions for the care of the chil. In number
of other international documents, it was stated that the Child should grow up in a family
environment, in an atmosphere of happiness, love and understanding.
UDHR contains two articles that specifically refer to children.
Article 25(2): Motherhood and childhood are entitled to special care and assistance
Article 26: Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages.
International Covenant on Economic, Social and Cultural Rights 1966
In Article 10, the state recognises the family as the natural and fundamental group/unit of
society and therefore accords the widest possible protection and assistance to the family
Article 13(1) enshrines the right of everyone to education and provides that primary education
should be compulsory and free to all.
International Covenant on Civil and Political Rights 1966
ICCPR complements the economic, social and cultural Covenant.
Article 14(1) provides an express exception to the right to a hearing in public, when it is in the
interest of the juveniles or where it concerns the guardianship of children
Article 14(3) provides that criminal proceedings should take account of juvenile’s age and their
desirability of promoting their rehabilitation.
Committee on the Rights of the Child
The Committee on the Rights of the Child (CRC) is the body of 18 independent experts that
monitors implementation of the Convention on the Rights of the Child by its state parties. It
also monitors implementation of two Optional Protocols to the Convention, on involvement of
children in armed conflict (OPAC) and on sale of children, child prostitution and child
pornography (OPSC). On 19 December 2011, the UN General Assembly approved a third
Optional Protocol on a communication procedure (OPIC), which allow individual children to
submit complaints regarding specific violation of their rights under the Convention and its first
two optional protocols.
All states parties are obliged to submit regular report to the committee on how the rights are
being implemented. States must submit an initial report two year after acceding to the
Convention and then periodic reports every five years. The committee examines each report
and addresses its concerns and recommendations to the State party in the form of “concluding
observations”.
The Committee also reviews the initial reports which must be submitted by States who have
acceded to the first two Optional Protocols to the Convention.
The Committee is also able to consider individual complaints alleging violations of the
Convention on the Rights of the Child and its first two optional protocols by the State parties
to the OPIC, as well as to carry out inquiries into allegations of grave or systematic violations
of the rights under the Convention and and its two optional protocols.
The Committee also publishes its interpretation of the content of human rights provisions
known as general comments on thematic issues and organizes days of general discussion.
CHILD RIGHTS IN INDIA
Constitution of India
The Indian Constitution accords rights to children as citizens of the country, and in keeping
with their special status the state has even enacted special laws. The Constitution, promulgated
in 1950, encompasses most rights included in the UN Convention on the Rights of the Child as
Fundamental Rights and Directive Principles of State Policy.
Constitutional Guarantees that are meant specifically for children include:
• Right to free and compulsory elementary education for all children in the 6 – 14-year
age group (Article 21A)
• Right to be protected from any hazardous employment till the age of 14 years (Article
24)
• Right to be protected from being abused and forced by economic necessity to enter
occupations unsuited to their age or strength (Article 39(e))
• Right to equal opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and guaranteed protection of childhood and youth
against exploitation and against moral and material abandonment (Article 39(f))
• Right to early childhood care and education to all children until they complete the age
six years (Article 45)
Besides, children also have rights as equal citizens of India, just as any other adult male
or female:
• Right to equality (Article 14)

• Right against discrimination (Article 15)
• Right to personal librarty and due process of law (Article 21)
• Right to be protected from being trafficked and forced into bonded labour
(Article 23)
• Right of minorities for protection of their interests (Article 29)
• Right of weaker sections of people to be protected from social injustice and all
forms of exploitation (Article 46)
• Right to nutrition and standard of living and improved public health (Article 47)
• Article 51A imposes a fundemntal duty upon the parent or guardian to provide
opportunities for education to his child or ward between the age of 6 – 14 years.
In order to give effect to provisions of the International conventions on the Rights of the Child,
the following acts have been enacted by the parliament:
1. The Protection of Children from Sexual Offences Act 2012

IPC does not provide for all types of sexual offences against children and, more
importantly, does not distinguish between adult and child victim. Therefore, special law
has been enacted in the year 2012 to address the issue of sexual offences particularly
against children. The Act provides protection to all children under 18 years of age from
the offences of sexual assault, sexual harassment and pornography, and stringent
punishment with the gravity of the punishment is prescribed in the Act.
2. The Right of Children to Free and Education Act 2009

The Act is intended to outline the provisions of quality of education for all children
between the age of 6 to 14 as per the Constitutional fundamental right awarded to
children in the 86th amendment.
3. Juvenile Justice (care and protection of children) Act 2000
The Parliament of India enacted the Juvenile Justice Act 1989. In 1989, the General
Assembly if the United Nations adopted the Convention on the Rights of the Child.
India ratified the UNCRC in 1992. In the year 2000 the old law was replaced by the
new Juvenile Justice (care and protection of children) Act 2000.
The act outlines 2 target groups, - child in need of care and protection and juveniles in
conflict with law.
4. JJ Act 2015
The earlier law of 2000 was replaced by the new law of 2015 in the background of the
Delhi Gang rape case. It is an act to consolidate and amend the law relating to children
alleged and found to be in conflict with law and children in need of care and protection
by catering to their basic needs through proper care, protection, development treatment,
social re-integration, by adopting a child friendly approach in the adjudication and
disposal of matters in the best interest of the children and for their rehabilitation through
process provided and institutions established.
In addition to the above stated enactments, the following Acts are also deal with the rights of
Children
1. The Child Labour (Prohibition and Regulation) Act 1986
2. Factories Act 1948
3. The Infant Milk Substitutes, Feeding Bottles and Infant Foods
Act 1992
4. The Protection of Child Marriage Act 2006
5. Immoral Traffic Prevention Act 1986
6. The National Food Security Act 2013
Factories Act, 1948
The act defines a child as a person who has completed him/her 15th year of age. It defines an
adolescent as one who is has completed his/her15th year of age but not completed his/her 18th
year of age. A young person is defined as either a child or an adolescent. According to this act
it is the duty of a certified medical practitioner or surgeon to examine and medical condition
and certifies all young people working in the factory. These examinations take place where a
young person is or is going to be engaged in work that is injurious to his health. Under this act
a young person may not clean or lubricate the parts of any moving machinery that is likely to
cause them injury.
Section 23 is concerned with the employment of young persons on dangerous machinery.
Young persons are not to be compelled to work dangerous machinery unless they have full
prior knowledge of the danger, are trained and there is a supervisor present at all times who is
fully trained in the machinery. Children are prohibited from working in any area where a cotton
opener is functional. The act calls for a creche service to be available to children below the age
of six with the factory has a minimum of 30 women working there.
Chapter VII of the act concerns the employment of young persons. This section states that no
child below the age of fourteen will be allowed or required to work in a factory. It requires that
all non-adult workers or adolescents carry tokens that show that they have been deemed
medically fit by a certifying surgeon. The certificate of fitness is given for a 12-month period
and can be revoked at any point if the child is found not to be medically fit anymore. The
certificate also deems an adolescent to be treated as an adult as per certain provisions of this
act. An adolescent who has not been deemed an adult for provisions of this act shall be
considered a child.
The act places time restrictions to the work of adolescents who have been granted a certificate
to work as adults. Adolescents are only allowed to work in the factory between 6 a.m. and 7
p.m. unless the State Government decides otherwise. Children or adolescents who have not
been deemed adults shall not be allowed to work in a factory for more than four and half hours
in any day and cannot work at night. They must no work more than two shifts, are not allowed
to work in two factories in the same day and a register of all children working there and their
hours must be maintained by the manger in every factory. An inspector has the power to order
a medical check-up at any point if he suspects a child is working against the provisions of this
act.
Children who have worked more than 240 days in the previous calendar year are allowed one
day paid leave for every fifteen days they worked. He/she can carry forth forty unused leave
days to the next calendar year. A child who has been granted five or more days leave can collect
the wages for those days before the leave. Parents/Guardians of a child can be fined for
allowing the child to work in two factories in the same day. Adolescents and children are not
permitted to work in the manufacturing process or any other dangerous environment in a
factory.
There are various instances where judiciary intervened and the rights of children.
In the case of Labourers working on Salal project v. State of Jammu and Kashmir, Supreme
Court held that child below the age of 14 years cannot be employed and allowed to work in
construction process. Court has issued various directions related to child labour.
Supreme Court in Vishal Jeet v. Union of India asked governments to setup advisory
committee to make suggestions for eradication of child prostitution and to evolve schemes to
ensure proper care and protection to the victim girls and children.
The Supreme Court further in Gaurav Jain v. Union of India showed its concern about
rehabilitationofminorsinvolvedinprostitutionandheldthatjuvenilehomesshouldbe used for
rehabilitation of them and other neglected children.
Mumbai High Court in Public at large v. State of Maharashtra rescued children from flesh
trade and passed order for checking sexual slavery of children and for their rehabilitation.
Children are not only prone to sexual abuse but they are also sometimes kept as bonded
labourers as was in the case of People's Union for Civil Liberties (PUCL) v. Union of India
where the Supreme Court released child labourers and also ordered for grant of compensation
to them.
Concern of the Supreme Court about the protection of rights of children does not ended here it
reiterated the importance of compulsory primary education vis-a-vis eradication of child labour
in the case of Bandhua Mukti Morcha v. Union of India.
Supreme Court in Sakshi v. Union of India highlighted the need to establish procedure that
would help the child victim to testify at ease in the court and held that proceedings should be
held in cameras.
Delhi High Court in Sheba Abidi v. State of Delhi observed that child victims are entitled to
get support person during trial and also established that child victims can testify outside the
court environment.
RIGHTS OF ILLEGITIMATE CHILDREN
Throughout history, there is probably no other word associated with such contempt as bastard
or bastardry. Early common law treatment of the same is without regard to the social
implications of the same. They were not recognised in polite society and were granted no rights.
As early as 1235, the Earls and Barons refused to accept their illegitimate off spring. Rights
over property were an unachievable dream when they were not even granted maintenance. This
treatment of illegitimate children has been uniform throughout the world, with a few
inconsistencies. It is not possible to ignore certain notable bastards who changed the course of
history. But notwithstanding these exceptions, there has always been a social stigma associated
with illegitimate children. Society has always ostracized such children, who through no fault
of their own were treated as unacceptable among other members of society.
In the late 20th century, with the progression of society, there was an attitudinal and
behavioural change towards the illegitimate issue. This change was ushered in with social and
political changes along with society’s transformation from a primitive agrarian society.
In India, until recently, the law did not recognize the rights of illegitimate children over the
property of their parents. With the amendment of Section 16 of the Hindu Marriage Act, the
law now recognises an illegitimate child’s right over the property of its parents. Children born
out of wedlock in live-in-relationships also acquire a right over the property of their parents.
Hindu Law
The rights of illegitimate children under Hindu Law have undergone a drastic change due to
the Marriage Laws (Amendment) Act, 1976 which amended Section 16 of the Hindu Marriage
Act, 1955. Prior to this amendment only certain rights relating to Sudras had been recognised.
With regard to maintenance, Section 20 of the Hindu Adoptions and Maintenance Act, 1956
states that a Hindu is bound to maintain his/her illegitimate children.
The Amendment Act of 1976 (Act 68 of 1976) amended Section 16 of the Hindu Marriage Act,
1955. By this amendment, irrespective of whether marriage is null and void under Section 11,
any child of such marriage whether born before or after the commencement of the Amendment
Act shall be legitimate. Sub section 3 of this section also grants a right to property of the
parents, to such illegitimate children. By the use of the word ‘property’ the section has kept the
meaning general and broad. The amendment to Section 16 has been introduced and was brought
about with the obvious purpose of removing the stigma of illegitimacy on children born in void
or voidable marriage.
In Jinia Keotin and Ors. v. Kumar Sitaram Manjhi and Ors. The main contention in this
case was whether the term property in Section 16(3) included self-acquired property as well as
ancestral property of the parents. The Supreme Court, repelling such contentions held that in
the light of the express mandate of the legislature there is no room for according upon such
illegitimate children more rights than envisaged. Doing so would amount to violence of the
provision and would attempt to the court relegislating on the subject under the guise of
interpretation.
In the case of Revansiddappa & Ors v. Mallikarjuna & Ors the Supreme Court stated that
the section restricted the rights of such illegitimate children with respect to property other than
that of their parents. However, the said prohibition does not apply to the property of the parents.
Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If
they have been declared legitimate, then they cannot be discriminated against and they will be
at par with other legitimate children and be entitled to all the rights in the property of their
parents, both self-acquired and ancestral.
Thus, under Hindu Law the illegitimate children are deemed to be legitimate and are granted a
right to inherit the property of their parents. This is the current legal position on right to
inheritance as upheld in the above-mentioned case and has been followed in several other
decisions.
Muslim Law
In the Muslim law, as in other systems of law, parentage involves certain rights and obligations.
By and large there are two modes of filiation (means the fact of being the child of a particular
parent or parents) known to the law: as a rule, the law treats the natural father as the father
of the child; sometimes, however, adoption leads to the result that someone who is not the
father of the child acquires rights similar to those of the father. Adoption is not recognised in
Islam, as it was disapproved by the Quran.
In addition to filiation the other form is ‘acknowledgement of paternity’. The peculiarity of
Muslim law is that in certain cases where it is doubtful whether a person is the child of another,
the acknowledgment of the father confers on the child the status of legitimacy. What is
important to know is the difference between legitimacy and the process of legitimation.
Legitimacy is the status which results from certain facts. Legitimation is a proceeding which
creates the status of legitimacy which did not exist before and in the proper sense of term, there
is no legitimation in Muslim law.
Acknowledgement of paternity or Iqrar is a kind of legal evidence. It is practically the most
conclusive and un-controvertible means of creating an obligation on the person who makes it.
The much-followed case on the doctrine of acknowledgement is the decision of the Privy
Council in Sadik Hussain Khan v. Hashim Ali Khan, wherein it was established that in cases
of uncertainty of legitimate descent, an acknowledgement by the father raises the presumption
of legitimacy unless the other side can prove that the child whose paternity was acknowledged
was of illegitimate descent.
This doctrine can be invoked only where the factum of marriage or the exact time of marriage
has not been proved. It is based on the assumption of a lawful union between the parties of the
acknowledged child. The doctrine of acknowledgement however cannot be where the lawful
union between the parents of the child is not possible as in the case of incestuous intercourse
or adulterous connection. The doctrine is also not applicable where the marriage necessary to
render the child legitimate is disproved. An acknowledgement need not necessarily be express.
It may be presumed from the treatment and conduct leading to an inference of
acknowledgement. It is an essential condition to the validity of an acknowledgement that the
physical relation of father and child should not be a matter of impossibility. The presumption
of paternity arising from acknowledgement can be rebutted by proof that physical relationship
is a matter of impossibility.
Thus, where there is a doubt regarding the existence of marriage then mere acknowledgement
of paternity is not sufficient. But in cases where the marriage is irregular or voidable, the
acknowledgement of paternity by the father, provided the same is valid, is sufficient proof for
the legitimation of the child’s status. Under Muslim law illegitimate child has no right of
inheritance from either of the parents under both Shia and Sunni schools though such children
can claim maintenance from mother only under Sunni law upto the age of seven years.
Under Muslim Law, the illegitimate child has no right to inherit property from the father. Under
the Hanafi law the mother and her illegitimate children have mutual rights of inheritance. The
illegitimate child inherits not only the property of its mother but also the property of all other
relations with whom it is related through the mother.
In Pavitri v. Katheesumma Vaidiaalingam J. held, "Mohammadan law appears to impose no
burden upon the natural father of an illegitimate child..." Muslim Law also does not confer any
right to maintenance to the illegitimate child, though the Hanafis recognize the obligation to
nurture the child till age 7. But such children can seek remedy under Section 125 of the CrPC
which should ensure that all such illegitimate children are maintained by their parents.
Christian Law
Under Christian Law, an illegitimate child is recognized as ‘fillius nullius’ which means child
of no one. Unlike Hindu Law, which creates a status of legitimacy on the child (Section 16 of
HMA, 1955) there is no provision in Christian Law which corresponds to the same. The
property rights of Christians are covered under the Indian Succession Act, 1925.
The term ‘child’ as used in this Act, does not include illegitimate children. Section 37 of the
Act specifically precludes illegitimate children from inheriting property of the father. But this
does not restrict such children from claiming maintenance under Section 125 of the CrPC.
Similar to Hindu and Muslim Law, the custody of the child is solely with the mother and her
relations. The putative father has no say in this matter. This is provided in Section 8 of the
Indian Succession Act. Through several decisions of the Court, we can observe that if the two
parents have co habited for a long period or if the man treats the woman as his wife, then the
children are considered legitimate. This was held in the case of Rameshwari Devi v. State of
Bihar and Vidhyadhari and others v. Sukhrana Bai and several other cases. Thus, under
Christian Law, illegitimate children are excluded from right to inherit property of the parents
but are granted a right to maintenance under the secular law i.e. Section 125 of the CrPC.
ADOPTION OF CHILD IN INDIA
What is Adoption?
Relationship of the child is severed legally from his/her biological parents. Child becomes the
lawful child of his/her adoptive parents. All the rights, privileges and responsibilities post
adoption are similar to that in case of a biological child. (Sec 2(2) of JJ Act, 2015 & Sec 12 of
HAMA, 1956).
Adoption Legislations.
• Hindu Adoption Maintenance Act, 1956 (HAMA)

• Juvenile Justice (Care & Protection of Children) Act, 2015 (JJ Act) (Came into effect
from 15 January 2016)
• Model JJ Rules, 2016 (Came into effect from 21 September 2016)
• Adoption Regulations, 2017 (Came into effect from 16 January 2017)
Hindu Adoption Maintenance Act, 1956 (HAMA)
An Act only for Hindus, as the child, the giver and the taker have to be a Hindu (a Muslim,
Christian, Parsee, Jews, any member of a scheduled tribe governed by their customary law
cannot adopt) (Sec 2 of HAMA)
Eligibility of adoptive parents (Sec 6 to 8 of HAMA)
• Only a Hindu, Buddhist, Jain, or Sikh husband above the age of 18 can adopt under this
act only with the consent of his living wife (Husband is the adopter and wife is merely
consenter)
• A single female (unmarried, divorcee or widow) can also adopt (Sec 8 (c))
• A person having a male child cannot adopt a male child
• A person having a girl child cannot adopt a girl child
• Age difference between the adoptive father and the adoptive girl child to be at least 21
years (Sec 11 (iii))
• The child has to be below 15 years of age (Sec 10(iv) of HAMA)
Provision of payment or reward and any contravention shall be punishable (Sec 17 of HAMA)
Adoption can be concluded through a registered Adoption deed subject to compliance with the
provisions of the Act (Sec 16 of HAMA)
Courts permission to adopt under this act is required only in the following cases (Sec 9(4) of
HAMA):
a) where both the father and mother are dead

b) where both the father and mother have completely and finally renounced the world
c) where both the father and mother have abandoned the child
d) where both the father and mother have been declared to be of unsound mind by the
court concerned
e) where the parentage of the child is not known
Valid Adoption cannot be cancelled (Sec 15 of HAMA)
Juvenile Justice Act, 2015 (JJ Act)
• A secular Act (anybody irrespective of religion can adopt a child under this act) (Sec
58(1) of JJ Act)
• Nothing in this act shall apply to adoption under HAMA (Sec 56(3) of the JJ Act)
• All Inter-country adoptions shall be done as per provisions of this Act & Adoption
Regulations framed by the Authority (Sec 56(4) of the JJ Act)
• Children up to the age of 18 can be adopted under this Act (Sec 2(12) of the JJ Act)
• Orphan, Abandoned & Surrendered (OAS) children declared legally free for adoption
by CWC (Sec 38 of JJ Act & Reg 6, 7 of AR 2017) can be placed in In-country and
Intercountry adoptions (Sec 56(1) of the JJ Act, Reg 4 (a) of AR 2017)
• Children of relatives, as defined in Sec 2(52) of the JJ Act, can be adopted by a
incountry parent (Sec 56(2) of the JJ Act & Reg 51 of AR 2017)
• Children of relatives, as defined in Sec 2(52) of the JJ Act, can be adopted by an
Intercountry parent (Sec 60 of the JJ Act & Reg 53, 54 of AR 2017)
Eligibility of Prospective Adoptive Parents (Sec 57 of the JJ Act & Reg 5 of AR 2017) 
• A couple/single parent can adopt

• Single male not eligible to adopt a girl child
• PAPs age eligibility criteria is defined
• Minimum 2 years stable marital relationship is mandatory
• PAPs with 3 or more children shall not be eligible to adopt a normal OAS child
• Eligibility and suitability of the PAPs are ascertained through a Home Study by the
SAA (Sec 58(2) of the JJ Act & Reg 9(13) of AR 2017)
• Court Procedure is defined in Sec 61 of the JJ Act & 12, 17, 55 of AR 2017
• Post adoption Follow up of the adoptive family both in case of In-country and Inter-
country is undertaken for 2 years by the Specialized Adoption Agency and the
Authorised Foreign Adoption Agency respectively (Reg 13 & 19 of AR 2017
respectively)
Guardians and Wards Act, 1890 (GAWA)
• Not an Adoption Law as it does not establish parent child relationship

• Establishes only a Guardian and Ward relationship only till the child attains the age of
18 years
• The cases applicable under GAWA may be admissible under Civil Miscellaneous
Applications (CMA) or Miscellaneous Judicial Case (MJC)
• Eligibility for applying for guardianship order and the court procedure as per CPC, 1882
is defined under Sec 7 to 26 of GAWA.
Salient Aspects of GAWA
• Guardianship petitions can only be filed by a person entitled as defined in Sec 8 of

GAWA
• PAPs are resorting to filing an application under GAWA for taking custody of OAS
children with a view to undertake adoption under HAMA through a deed
• Rehabilitation of OAS children has to be as per the JJ Act 2015 and such petitions
should not to be entertained
• In case of applicant being given guardianship under GAWA, the interest of the child
cannot be ensured in the absence of proper eligibility check and follow up
• They have no legal rights and responsibilities towards each other as soon as the child
attains majority (18 years).
Case Law
Lakshmi Kant Pandey v. Union of India (1984)
The Supreme Court in this public interest litigation considered the issue of alleged adoption
agency malpractice and neglect when approving inter-country adoptions. The Court in its
judgment set forth safeguards such that adoptions by foreigners would be handled in a manner
promoting children’s welfare and their right to family life.
Summary:
The petitioner, Lakshmi Kant Pandey, an attorney, wrote to the Supreme Court (Court) alleging
neglect and malpractice on the part of social organizations and private adoption agencies
facilitating the adoption of Indian children to foreign parents. He noted the long and hazardous
journeys these children made to foreign countries, along with instances of neglect they
experienced from their adoptive parents resulting in impoverishment or sexual exploitation of
the children. The Court treated his letter as a writ petition (a filing made with a higher court to
secure prompt review of an issue) and this instituted the basis of the public interest litigation.
In its judgment, the Court noted that the absence of legal regulation of inter-country adoptions
in India could cause enormous harm to Indian children who may, for example, be exposed to
the abuses of profiteering or trafficking. In order to protect the welfare of children, the Court,
in consultation with several social or child welfare institutions, laid out a comprehensive
framework of normative and procedural safeguards for regulating inter-country adoption as
protection against abuse, maltreatment or exploitation of children and to secure them a healthy,
decent family life. While formulating standards and procedures the Court referenced various
relevant laws and policies including Articles 15(3), 24, and 39 of the Indian Constitution
regarding child welfare, and the principles embodied in the U.N. Declaration on the Rights of
the Child (1959). The delineated safeguards include, amongst several others, the requirement
that foreigners wishing to adopt be sponsored by relevant licensed agencies in their own
country, that no adoption application from a foreigner should be entertained directly by any
adoption agency in India, that agencies working on inter-country adoptions and licensed by the
Government of India must meet certain stipulated criteria and undertake
specific responsibilities in ensuring the safety and well-being of adopted children, and that all
inter-country adoption proceedings must be approved by the local courts.
Enforcement of the Decision and Outcomes:

The guidelines set forth by the Supreme Court regulated adoption over many years and became
an effective tool for child rights activists. Following the judgment, some of the social or child
welfare agencies engaged in placement of children in inter-country adoption felt that there were
certain difficulties in implementing the principles and norms laid down in our judgment and
petitioned the Court for clarification. The Court addressed these issues in a supplemental
judgment dated 27th September, 1985. Furthermore, in another case, where the petitioners
alleged non-compliance with the adoption safeguards, the Supreme Court held that any
adoption in violation of or non-compliance with the directives set forth in this judgment may
lead the adoption to be declared invalid and expose the person concerned to strict action
including prosecution.
The Government of India has complied with a number of the Court’s directives including
setting up a Central Adoption Resource Agency CARA, which framed guidelines for the
adoption of Indian children, codifying the safeguards set forth by the Supreme Court judgment
and other related decisions by the Court. Moreover, there were the supplemental, if not
consequential legislative innovations of the Juvenile Justice (Care and Protection of Children)
Act, 2000 (amended in 2006) and the Juvenile Justice (Care and Protection of Children) Rules,
2007. However, India still does not have a comprehensive national law on adoption. For years,
now, NGOs have been urging the government to pass relevant national legislation as
unscrupulous practices continue in the area of inter-country adoptions.
Groups involved in the case:

Apart from the Government of India, several government agencies and social welfare
organizations (both national and international) filed affidavits and statements before the court
in this case. The institutions included the Indian Council of Social Welfare, Enfants Du Monde,
Missionaries of Charity, Enfants De L's Espoir, Indian Association for promotion of Adoption
Kuan-yin Charitable Trust, Terre Des Homes (India) Society, Maharashtra State Women's
Council, Legal Aid Services West Bengal, SOS Children's Villages of India and the Bhavishya
International Union for Child Welfare. The Supreme Court explicitly acknowledged their
contribution in its judgment stating that the valuable recommendations provided for the
consideration of the Court helped the judges formulate the principles and norms to be observed
in the case of inter-country adoptions.
Significance of the Case:
Given that the Court treated a letter as a petition, this case is an excellent example of how the
procedural innovation of public interest litigation in India has eased rules of standing (which
determine who can bring a case) towards making the court system more accessible to
disadvantaged sections of society. It also stands as an example of the judicial activism of the
Indian Supreme Court. Confronted with legal vacuum on an issue with huge social
implications, the Court did not hesitate to issue elaborate guidelines to regulate adoptions and
protect children from prostitution and slave labor.
RIGHTS OF CHILD UNDER MEDICAL TERMINATION OF PREGNANCY ACT,

1971
Among various rights which are available to a woman, the right to abortion is also believed to
be one of the most essential and fundamental right. Right to abortion has been recognized under
right to privacy which is a part of right to personal liberty and which emanates from right to
life.
There are various aspects such as religious, ethics, moral and legal values that rule over the
aspect of right to abortion. Abortion is severely condemned in all religions. But in spite of that
always the question arises whether the mother has a right to abortion or the child has a right to
life. Ronald Dworkin has made a detailed study on the issue of abortion. He did not accept the
extreme position taken by the derivative claimers of prohibition of abortion that, the foetus is
a complete moral person from the moment of conception. Hence the unborn has the right to
live and abortion is a murder or nearly a wrong as murder.
According to Dworkin a foetus has no interest before the third trimester. A foetus cannot feel
pain until late in pregnancy because its brain is not sufficiently developed before then. The
scientists have agreed that foetal brain will be sufficiently developed to feel pain from
approximately the twenty sixth weeks. Thus, whether abortion is against the interest of a foetus
must depend on whether the foetus itself interests has, not on whether interests will develop if
no abortion takes place. Something that is not alive does not have interests. Also, just because
something can develop into a person does not mean it has interests either.
ABORTION AND THE LAW IN INDIA
The Indian Penal Code 1860 which is the basic criminal law of the country keeping in view the
religious, moral, social and ethical background of the Indian community has made induced
abortion a criminal offence under sections 312 to 316 of IPC 1860. Sec 312 of IPC 1860 relates
to unlawful termination of pregnancy. Here under IPC 1860, the framers of the code have not
used the word ‘abortion’.
The ‘miscarriage’ and ‘unborn child’ has also not been defined in the code. But by legal
interpretation we will find that voluntary causing miscarriage stands for criminal abortion and
which is an offence under the code. Sec 312 make voluntary causing miscarriage an offence in
two circumstances when a woman is ‘with child’ (which means as soon as gestation begins)
and when she is ‘quick with child’ (motion of the foetus is felt by the mother). Sec 312 permits
termination of pregnancy in order to protect the life of the mother. The unborn child must not
be destroyed unless the destruction of the child is for the purpose of preserving the life of the
woman. The provision criminalizes abortion and permits abortion only on medical grounds in
order to protect the life of the mother.
Medical Termination of Pregnancy Act, 1971

Under the MTP Act 1971, termination of pregnancy can only be done in good faith by
registered medical practitioners and in such places as it is required by this act and it permits
the termination of pregnancy up to 12 weeks and the opinion of more than two medical
practitioners is required if termination of pregnancy is done between 12 and 20 weeks because
of the many reasons:
I. A risk to life of a pregnant woman, or II. A risk of grave injury to her physical or mental
health, or III. If the pregnancy is caused by rape, or IV. There is an existence of substantial risk
that if the child is born, it would suffer from some physical or mental abnormalities so as to be
seriously handicapped, or V. Failure of any contraceptives VI. Risk to the health of the pregnant
woman by reason of her actual or reasonably foreseeable environment.
The Act does not permit termination of pregnancy after 20 weeks. The word good faith has not
been defined under this Act. It means discretion is in the hand of medical practitioners. In India,
Nikita Mehta’s case has given rise to an abortion debate relating to statutory time limits to
abortion from 20 weeks to 24 weeks. In India abortion is not allowed after 20 weeks and
abortion on demand is also not allowed for which women go for illegal abortions. When a child
is born deformed it becomes a difficult task for a mother to take care of the child and the child
also faces difficulties in every stage of life in relation to health. At that stage both the mother
and child faces difficulties. As India is not a developed country it is difficult for poor people to
grow abroad for proper medico care. If deformity can be a cause to have abortion within 20
weeks of gestation then there is no problem if abortion is allowed within 24 weeks. In both the
cases the child will born as deformed.
However, recently in X vs. State of H.P & Ors. (2017) The Himachal Pradesh High Court has
allowed abortion of a 32-week-old foetus of a 19-year-old girl having mild to moderate mental
retardation on the ground that it is risky for her to complete the normal period of pregnancy
and deliver the child on the due date.
In Mamta Verma vs. Union of India & Ors. The Supreme Court on allowed a 26-year-old
woman to abort a 25-weeks-old foetus, noting that it was diagnosed with a neurological
disorder that causes absence of major portion of the skull and scalp. A medical report prepared
by a board of Sir JJ Hospital in Mumbai had submitted before the Court that the foetus had
anencephaly – a condition where the baby is born without parts of the skull.
MODULE 6
The Tribals and the Human Rights – Right to Land – Development vis a vis Tribal
Displacement – The Narmada Andoolan Movement, a Human Rights Problem.
The Tribal Community and the Human Rights
India has the second largest tribal concentration in the world spread across various parts of the
country mainly in forests and hilly regions. The characteristics of these communities are their
particular geographical location, distinct culture, economic backwardness and aloofness from
the society at large.
The word ‘Tribe’ denotes a group of people living in primitive and ruthless conditions. These
tribes are a social group living in a fixed territory having no such specialization of functions
and the people living in these social groups are known as tribes or tribal people. Tribes also
have several sub groups and collectively they are known as ‘Tribal Society’. Tribes are the
inhabitants of forests since pre-history and even in this modern world this trend is followed by
many people. Tribes constitute around 8.6 percent of the total Indian population, and of the
total tribal population around 80 percent are found in Central India.
Tribes in India are mainly characterized by their geographical location and distinct culture. In
India, tribes are treated very low, are execrated and are even treated as untouchables by the
prevailing adherence to social norms and caste system. The tribal people were compelled to
perform duties which were considered inferior because of their economic backwardness and
illiteracy. Since, these people were ill-treated and were not enjoying equal status with other
people which is guaranteed to all the citizens of India by Article 14 of The Constitution of
India i.e.,” The State shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India”, so there was a need to provide these tribal people
some rights for their welfare and development. In earlier times, Mahatma Gandhi fought for
the rights of the tribal people and recognized them as Girijans or the Children of the Forest
God and after Independence in 1947, the Government of India spent lot of resources to improve
the standard of living of tribal people and also helped them through legislations and
developmental programmes and in safeguarding their rights.
Constitutional Rights to Tribal People
The Constitution of India has provided special provisions to the tribal people to safeguard their
interests.
1. Article 15 of the Indian Constitution states that the state shall not discriminate any
citizen on grounds of religion, race, caste, sex, place of birth or any of them. This
explains that every citizen of India is provided equal rights and opportunities
without any discrimination.
2. Government of India has made reservation for the tribes in employment under
Article 16(4) of the Constitution of India.
3. The Government of India has reserved seats in The House of People (Lok Sabah)
and The State Legislative Assemblies under Article 330 and 332 of The Constitution
of India.
4. Article 19(5) of the Constitution of India guarantees the tribal people right to own
property and enjoy it in any part of the country.
5. Article 338 of The Constitution of India grants the right to appoint a Commissioner
to look after welfare activities of tribes.
6. Article 46 of the Constitution of India states that, The State shall promote with
special care the educational and economic interests of the weaker sections of the
people and in particular, the Scheduled Castes and the Scheduled Tribes, and shall
protect them from social injustice and all forms of exploitation.
7. Under Article 275(i) of the Constitution of India the Centre Government is required
to give grants-in-aid to the State Government for approved Tribal Welfare Schemes.
Right to Land
Schedule 5 of the Constitution of India and other state laws prohibits any transfer of property
belonging to tribal communities or the land which is being cultivated by these people for a long
time. Rights of tribes over Forest are an inalienable and irrefutable historical fact. But in the
colonial rule the tribal people were deprived of their land rights and many people started
encroaching lands of the tribal people but encroachments on forestlands was made an offence
under the Indian Forest Act, 1927. After Independence, the forest department ingeminated the
right of tribal people to the forest land and passed the Forest Conservation Act, 1980 which
regularized the encroachments of forest lands.
With regard to the protection of the tribal rights over community forests and other lands,
following the central legislation introduced in 1996, the Gram Sabah (Village Assemblies) in
the tribal areas has been entrusted to protect the community rights over community land and
forest. The Environment Ministry of India has also tried various measures to curb the problem
of encroachments. In the guidelines issued by the Environment Ministry on September 18,
1990, State Governments were asked to evict all ineligible categories of pre-1980 settlers and
encroachers after October 25, 1980. The Scheduled Tribe and Other Traditional Forest
Dwellers Act in 2006 recognizes the ownership rights of tribes and other forest dwellers who
are living or cultivating a specific land for a very long period of time. UNDP (United Nations
Development Programme) in partnership with the Ministry of Law and Justice, Government of
India, is helping the poor and marginalized to access justice and demand and access
entitlements. In 2011, a forty year old man Naran Majhi applied for the regularization of
the Scheduled Tribe and Other Traditional Forest Dwellers Act in 2006 on his land to be
recognized legally as the owner of the land which his family used to farm for over 200 years.
The Government of India also ensures equal land rights to the tribal women as tribal men have.
In the Case of Madhu Kishwar & Ors. Etc v. State of Bihar & Ors, it was held by the court that
the Scheduled Tribe women succeed to the estate of their parent, brother, husband as heirs by
intestate succession and inherit the property with equal share with male heir with absolute
rights as per the general principles of Hindu Succession Act 1956, as amended and interpreted
by this Court and equally for the Indian Succession Act to tribal Christian.
Development Vis a Vis Tribal Displacement
In recent times the large-scale industrialization, privatization and globalization for sake of
“development” has emerged as the biggest threat to tribal’s survival – ironically, the so called
“modern civilized society” has become a predator of their age-old eco-friendly, peaceful and
harmonious lifestyle. The Tribals, their lands, and other resources are now exposed to the
exploitative market forces, mostly due to the State and Multi-National Companies (MNCs)
sponsored developmental projects to exploit minerals and other natural resources. Land
alienation of the Tribals by the powerful entities has become common phenomena. It is most
unfortunate that “the freedom to live in their own traditional ways” as guaranteed by the
constitution is flouted by those who understand the constitution better. Tribals have paid the
highest price of national development because their regions are resource rich: 90 percent of all
coal and around 50 percent of the remaining minerals are in their regions. Also, the forest,
water and other sources abound in their habitat. The indigenous/ tribal peoples who
constituted 8% of the total population of India at 1991 census make up 55% of the total
displaced persons due to development projects up to 1990. According to the Ministry of Tribal
Affairs (MTA) nearly 85 lakh Tribals were displaced until 1990 on account of mega
developmental projects like dams, mining, industries and conservation of forests etc. Lakhs of
Tribals have been displaced from 1990 onwards (due to the so-called economic liberalization
policies of the Center under pressure from the Western lenders) without proper rehabilitation.
Yet, no proper study has been conducted in regard to displacement and rehabilitation of Tribals.
Article 46 of the constitution places an obligation upon States to promote the interests of
Scheduled Castes and Scheduled Tribes and protect them from social injustice and all forms of
exploitation. It must be mentioned that displacement of tribals from their lands amounts to
violation of the Fifth Schedule of the Constitution as it deprives them of control and ownership
of natural resources and land essential for their way of life.
The Kashipura and Niyamgiri incidents that took place in Odisha should have served as an eye
opener. Nevertheless, the authorities stay blind and ignorant towards the issues of the tribals.
The Liberalization and Globalization policies continues doing to the tribals in India, that which
the British Imperialism did.
NARMADA BACHAO ANDOLAN
Narmada Bachao Andolan is a social movement consisting of Tribal people, Adivasis, Farmers,
Environmentalists and Human rights activists against the Sardar Sarovar Dam being built
across river Narmada, Gujarat. In 1979, the Indian government initiated the Narmada valley
development project which consisted of 30 big, 135 medium and 3000 small dams and included
an initiative to raise the height of the massive Sardar Sarovar Dam. It was meant to improve
hydropower supply in Gujarat and provide water to the drought-prone regions of Kutch and
Saurashtra. The dam affects communities in three states: Madhya Pradesh, Gujarat and
Maharashtra. It has been likened to a “destruction” and an indication of “civilization turning
upon thyself”. Despite persistent struggles to fight the dam and secure compensation for its
victims, violations continued in the wake of its ill-fated construction. The Narmada Bachao
Andolan (NBA) first began to oppose the dam in 1988, after discovering that the government
lacked a clear plan for the management of its inevitable social, cultural and environmental
costs. The dam’s construction was planned without even informing citizens of its
subsequent impact on their thousand-year-old civilizations. Intricate ecosystems, social
structures and livelihoods would be washed away alongside temples, schools, roads, houses,
crops, trees and lives. Medha Patkar and Baba Amte lead the NBA.
Thus, the NBA filed a writ petition in the year 1994. The case was ultimately decided in the
year 2000 in the landmark judgment in Narmada Bachao Andolan vs Union of India and Others
(2000). The issue before the court was whether the environmental clearance granted by the
Union of India for the construction of a dam had been granted without proper study and
understanding of the environmental impact of the project. Furthermore, it was examined
whether the environmental conditions imposed by the Ministry of Environment had been
violated and if so, what was the legal effect of the violations. The evidence disclosed that the
Government had been deeply concerned with the environmental aspects the project and
because there was a difference of opinion between the Ministries of Water Resources and of
the Environment and Forests the matter was dealt with by the Prime Minister who gave the
clearance. The court ordered compensatory measures for environmental protection in
compliance with the scheme framed by the Government and ordered the construction to
continue while the alleviate measures were carried out.
TEHRI DAM CASE
In 1990, the Indian government and Tehri Hydro Power Corporation began planning to dam
the Bhagirati River at the Himalayan foothill town of Tehri in Uttar Pradesh. Plans indicated
that it would be the fourth largest dam in the world. Damming the river at this particular
location would lead to flooding of the town and the displacement of up to ten thousand of its
residents. Scientists also protested the construction of the dam because of its proximity to the
central Himalayan Seismic Gap. According to leading scientists, an earthquake from the gap
could easily destroy the dam and kill up to 500,000 people. Furthermore, the Bhagirati is sacred
in Himalayan culture, therefore damming the river would be an affront to this sacredness.
In 1990, village campaigners organized as Tehri Bandh Virodhi Sangharsh Samiti filed an
official petition to India’s Environmental Appraisal Committee, which went to India’s Supreme
Court. Attorney Shri P.S. Poti appeared in court to argue that the dam’s catastrophic potential
was far too great, and its potential hydro-power too relatively small to justify construction. The
case continued for the next ten years.
Sundarlal Bahuguna of the Chipko Andolan movement (an environmental cause that literally
translates as “tree-hugging”; See Indians embrace trees (Chipko) to stop logging activity, 1971-
1974) moved to the edge of the river in a home that would be flooded by the dam. In 1995, He
went on a forty-nine-day hunger strike to rally protesters against the construction of the dam.
He ended the strike only when Prime Minister H.D. Deve Gowda promised to appoint a special
committee to consider the potential ecological consequences of the dam. However, the
committee did not seem sufficient to Bahuguna, so he travelled to Raj Ghat, a memorial to
Mahatma Gandhi, and went on another fast, this time for seventy-four days. Protests quieted
down along with talk of the dam project for several years.
In July 2000, the group Vishwu Hindu Parishad began a campaign to force the government to
cease the construction of the Tehri dam. The group’s president, Ashok Singhal, initially
appealed to the local government to deny Tehri Hydrpower Corporation the right to begin
construction. When his request was rejected, he began using the slogan “Ganga aviral bahati
tahe”, which translates roughly as “Let the Ganga (river) flow unhindered eternally”.
In December 2000, hundreds of locals joined peaceful demonstrations, or dharna, in the streets
the Tehri submergence area. They used traditional dharna methods of sitting outside the
perpetrators doorway, or in this case sitting outside the construction site, without moving or
taking food. Some protesters stayed in for more than a month. On 6 January 2001, police
forcibly removed the protesters, beating hundreds and arresting twenty-four.
At this point, Sunderlal Bahuguna joined the new campaign and led another hunger strike,
which began on 9 December 2000. Several local families also participated in the fast. They
were specifically protesting not only the dam, but also the government’s failure to provide
compensation or rehabilitation to people scheduled to be displaced by the dam’s construction.
Several weeks after the fast began, on 23 December 2000, the Information and Public Relations
Department released advertisements in national newspapers following an announcement that
engineers would be closing pressure relief tunnels and progressing with construction of the
dam. The ads claimed that the project was actually a “new chapter in development”, stressing
that the increased use of hydropower was a step towards modernity.
The Tehri Hydropower Corporation scheduled the closure of the tunnels for March 2001 and
demanded that residents leave their homes before then so that flooding of the Tehri region
could begin. In response, VHP president Ashok Singhal threatened a fast. Meanwhile, in
January 2001 in the nearby village of Bhagirathi, the Matu campaign organized protests against
the dam. There, protesters stopped the progress of two trucks moving earth in order to continue
work. They would not allow the trucks to continue down the road. In response, police stormed
the campaigners with batons in a lathi charge on the orders of the Deputy Superintendent of
Police and the Sub-Divisional Magistrate of Uttar Pradesh. Twenty-four protesters were
arrested, including eleven women. The beatings continued after the protests ceased, as police
entered homes and beat more than a hundred people, including several children.
On 31 March 2001, activists protested the government’s failure to relocate people displaced by
the dam project. They began a sit-in at the main site of construction. They forced construction
to halt for three weeks. Before dawn on 22 April, after an announcement from the High Court
that the project should continue, police arrested fifty campaigners from the sit-in. Protesters
were dispersed among several different prisons. Two days later, they arrested Sagerlal
Bahuguna, who began yet another hunger strike while detained. After his condition began to
deteriorate, the government declared a new committee would be formed, and this time it would
be comprised of representatives selected by both the government and campaigners from a pool
of government nominees.
In June 2001, locals in Tehri protested in the streets when corruption charges were brought up
against the Tehri Hydro Development Corporation for their attempts to delay the inspection of
the Central Bureau of Investigation.
On 4 August 2001, more than a hundred women went out into the forests outside Tehri, called
Advaniin. They protested in the woods, which were full of famous trees that were important in
the Chipko-Andolan movement of the 1970s. These trees were endangered by the dam project
as they stood in grounds set to be cleared for the construction of transmission lines by the Power
Grid Corporation.
On 15 October 2001, the national forest department began distributing land titles that would
allow deforestation for the dam project. They licensed clearing on land that had been protecting
since the Chipko movement in the Haridwar forest. Locals protested this decision not in the
forest, but in the streets of the so-called submergence area in Tehri, which would soon be
flooded by the reservoir.
In March 2002 the appointed committee declared that construction of the dam would be safe
and should continue. By 2004, Phase I of construction was complete and soon large sections
of Tehri were underwater. Sunderlal Bahuguna’s original home was submerged and he
relocated to a new residence higher up the river’s bank. Since that time several ecological
disasters related to the dam devastated Tehri.
The Supreme Court in 2003 cleared the decks for the construction of the Tehri hydel dam
project in Uttaranchal, holding that there was no material on record to show that statutory
environmental conditions had not been complied with. Justice Dharmadhikari, giving the
dissenting verdict, said that an expert committee should be set up to carry out all scientific tests,
including a 3-D seismic survey, and suggest corrective measures. He also said that the
rehabilitation work should be completed. The petitioner had alleged that the construction of
such a big project in an active seismic zone had rendered the dam unsafe as no tests regarding
safety of the dam from earthquakes, experienced frequently in the region, had been carried out
so far.
In 2017, Uttarakhand HC held that the families affected by tehri dam project have fundamental
right to compensation for loss of basic amenities. The Court was hearing a Petition filed by the
Tehri Bandh Prabhavit Sangharsh Samiti, which had brought to the attention of the Court that
the project had affected about 22,000 families, and had disrupted the connectivity to several
villages, causing them grave economical, sociological and geological problems. Justice Sharma
noted that the residents had highlighted their grievances by making representations before the
District Magistrate, Tehri Garhwal. The District Magistrate had then sent a three-point
recommendation to the State Government, including allocation of compensation of Rs 1.50
lakh per affected family, building of 50-bed hospitals in the areas and opening of technical
institutes to provide training which would lead to employment of the village youth. It further
observed that the State should have adopted a “humane approach” while considering the case
of the Petitioners.

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NOTES ON

HUMAN RIGHTS LAW

ANSU SARA MATHEW, ANUSREE S.V, EBIN EMERSON, ADITHYA RAGHUNADHAN,

VIGNESH R. ARYA LAKSHMI, ASHWIN MENON V. & AJAY RATNAN

GOVERNMENT LAW COLLEGE, KOZHIKODE

NATURE AND MEANING

IMPORTANCE OF HUMAN RIGHTS

THEORIES OF HUMAN RIGHTS

II. Pragmatic Approach:

SOURCES OF HUMAN RIGHTS LAW

ILO 98 concerning the Right to Organise and to Bargain Collectively (1949)

HISTORICAL PERSPECTIVES AND DEVELOPMENT OF HUMAN RIGHTS

Classification of Human Rights

Human rights are generally classified into three. They are;

INTERNATIONAL BILL OF HUMAN RIGHTS

UNIVERSAL DECLARATION OF THE HUMAN RIGHTS

Importance of the declaration

UDHR RELATED CASE LAWS/ JUDICIAL ATTITUDE

The International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights (ICCPR) is a

First Optional Protocol:

Second Optional Protocol:

ICCPR RELATED CASE LAWS/ JUDICIAL ATTITUDE

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

Overview of the Rights Envisaged in the ICESCR

The Covenant recognises the following rights:

States Parties to the ICESCR

The Committee on Economic, Social and Cultural Rights

ICESCR RELATED CASE LAWS/ JUDICIAL ATTITUDE

IMPLEMENTATION OF INTERNATIONAL LAWS IN INDIA

India’s contribution to international law, especially in the field of humanitarian laws,

Powers of the Executive in matters of International Law and Relations

Treaty Making Power

The powers of the Parliament

“253. Legislation for giving effect to international agreements – Notwithstanding anything in

Implementation of Human Rights in India

Cairo Declaration on Human Rights in Islam (CDHRI) 1990

Enforcement of Human Rights Through UN

The Trusteeship Council

about the implementation of United Nations resolutions on Namibia, to represent Namibia in

Covenant. It is the body of independent experts that monitors implementation of the

certain circumstances, consider individual complaints, or communications from individuals

committee monitors the implementation of the convention by examining reports submitted by

information submitted by States, United Nations agencies, other relevant international

Right to Development in the Context of the Indian Development Experience

ROLE OF NON-GOVERNMENTAL ORGANISATIONS IN PROTECTING HUMAN

Non-government Organizations (NGO's) are voluntary organizations. They are formed by

People’s Union for Civil Liberties (PUCL)

HUMAN RIGHTS AND THE INDIAN CONSTITUTION

Constitutionally not Specifically Incorporated Human Rights Standards and its

No Name of Right Universal Indian

Rights Convention on Civil Indian Constitution

2 Provision for just and humane Article 7b Article 42

WIDER IMPLICATIONS OF RIGHT TO LIFE

RIGHT TO PRIVACY AS A PART OF ART. 21

RIGHT TO A CLEAN ENVIRONMENT AS A RIGHT TO LIFE

1. Directives in the nature of ideals of the state.

2. Directive shaping the policy of the state

3. Non-justiciable rights of the citizens

THE PROTECTION OF HUMAN RIGHTS ACT 1993

NATIONAL HUMAN RIGHTS COMMISSION

• It is autonomous i.e. it has been created by an Act of Parliament.

▪ Lesbian, Gay, Bisexual, Transgender Rights