1

Chairperson : Professor Madhurima Verma

Co-ordinator : Professor Emanual Nahar
Course Leader : Dr. Kamla

ADVANCED DIPLOMA IN H.R.D SEM. – I

HUMAN RIGHTS THEORY AND PRACTICE: THE INDIAN CONTEXT
PAPER-III

 Introductory Letter (i)

 Syllabus (ii)
CONTENTS
L.No. Topics Author Pages
1. Rights Discourse in Indian National Movement Dr. Navleen Kaur 1
2. Human Rights Concerns and The Making of the Indian Dr. Manvinder Kaur 9
Constitution
3. Fundamental Rights and Fundamental Duties Dr. Amrit Pal Kaur 16
4. Directive Principles of State Policy Dr. Amrit Pal Kaur 31
5. Role of Judiciary, Judicial Review and Judicial Activism Dr. Cheema Gambir 44
6. Status of Human Rights in India with Special Reference to Dr. Amrit Pal Kaur 61
Custodial Deaths and Torture
7. National Human Rights Commission State Human Rights Dr. Cheema Gambir 74
Commission
8. National Commission for Women (NCW) Dr. Amrit Pal Kaur 82
9. National Commission on Protection of Child Rights Dr. Amrit Pal Kaur 95
(NCPCR)
Vetter : Dr. Kamla

E-Mail of Department coordpolsc@pu.ac.in

Phone number of Department 0172-2534332
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(i)
Introductory letter
Dear Learner
You are welcome for having opted for Advanced diploma course in Human Rights and Duties.
The advanced course in Human Right & Duties is part of an attempt to offer new course to our
multitasking learners and in this lesson of Paper III: Human Rights Theory & Practice: National
Scenario, the focus is on national aspects related to Human Rights. A sincere effort has been made to
acquaint you with the ongoing developments at the national level in context of human rights. The
syllabus is divided into units along with the further readings. Hope you will enjoy the experience.

Prof. Emanual Nahar

Co-ordinator
Advanced Diploma in Human Rights
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(ii) USOL, PU, Chd.

PAPER – III: HUMAN RIGHTS THEORY AND PRACTICE: THE INDIAN CONTEXT
(Code No. - DHR 03)
INSTRUCTIONS FOR THE PAPER-SETTER AND THE CANDIDATES
1. In all, NINE questions are to be set.
2. The first question covering the entire syllabus is compulsory comprising 10 short answer
questions, all of which have to be attempted. (2×10 = 20 marks)
3. The remaining essay type questions (questions 2-9) must comprise two questions from each
unit with internal choice. (4×15 = 60 marks)
4. The paper-setter must keep in mind that the emphasis of this course is not to test the legal
knowledge/accuracy of the candidates but to assess their basic understanding of Human
Rights and Duties.
Syllabus
Objectives: The paper a) traces the origin and development of human rights in India; b) discusses the
constitutional-legal framework in India; c) describes the enforcement and redress agencies; and d)
analyzes the human rights issues in the Indian context.
UNIT – I
- Rights Discourse in Indian National Movement
- Making of the Constitution and Human Rights Concerns
UNIT – II
- Fundamental Rights and Fundamental Duties
- Directive Principles of State Policy
UNIT – III
- Role of Judiciary : Independence of judiciary, judicial review, judicial activism
- State of Human Rights in Contemporary India with special reference to custodial deaths and torture
UNIT – IV
- National Human Rights Commission (NHRC)
- National Commission for Women (NCW)
- National Commission on Protection of Child Rights (NCPCR)
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(iii)
Essential Readings:
- Alam, Aftag (2005), Human Rights in India, Delhi: Raj Publishing House.
- Austin, Granville (2002), Working of a Democratic Constitution: The Indian Experience, New Delhi:
Orient Longman.
- Noorani, A.G. (2012), South Asian Human Rights Documentation Centre: Challenges to Civil Rights
Guarantees in India, New Delhi: Oxford University Press.
- Ray, Arun (2009), National Human Rights Commission in India: Formation, Functioning and Future
Prospects, New Delhi: Atlantic.
- Chitkara, M.G. (1996), Human Rights Commitment and Betrayal, Ajit Publishing Corporation.
- Singla, Nidhi, “Forgotten Youth: Disability and Development in India” A Paper presented, University
of Cambridge.
- Tyne, Claude H. Van (1990), India Freedom Movement, Delhi: Akashdeep Publishing House.
Further Readings:
- Kannabiran, K.G. (2003), The Wages of Impurity: Justice and Human Rights, New Delhi: Orient
Longman.
- Ray, S.N. (1974), Judicial Review and Fundamental Rights, Calcutta: Eastern Law House.
- Sathe, S.P. (2009), Judicial Activism in India, New Delhi: OUP.
- Fadia B.L. and Fadia K., India in Administration, Agra: Sathiya Bhawan Publication.
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Lesson-1

RIGHTS DISCOURSE IN INDIAN NATIONAL MOVEMENT

Structure
1.0 Objectives
1.1 Introduction
1.2 History
1.3 Human Rights in India
1.3.1 Indian National Congress 1885
1.3.2 Constitution of India Bill 1895
1.3.3 The Congress Resolutions
1.3.4 The Mid-Twenties
1.3.5 Nehru Report 1928
1.3.6 Sapru Committee Report 1945
1.3.7 British Cabinet; Mission 1946
1.4 Summary
1.5 References
1.6 Further Readings
1.7 Model Questions
1.0 Objectives
The objective of this chapter is:
 To understand the beginnings of the concept of Human Rights in India;
 To recall the conditions made conducive by the Indian National Movement for human rights
discourse;
 To appreciate the place of human rights in the Constitution of India.
1.1 Introduction
Respect for human rights finds a mention in the ancient scriptures and epics of India. In the
history of India, the British Colonial Period shall remain as the period of “Dark Ages”. The British
destroyed the traditional social, political and economic institutions, exploited the social and religious
weaknesses of the Indian masses for furthering British imperialism. The British gained by sharpening
the caste and religion divide in society in pursuit of their ‘Divide and Rule Policy'.
The renaissance came in though the new breed of men and women with a vision of synthesizing
the traditional cultural values and the newly imbibed ideas from the American and French Revolutions.
Mahatma Gandhi was the foremost among them. His test of freedom has always been what is
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beneficial to the poor, the starving millions. He always felt “Let us give today first the vital things of life
and all the graces and ornaments of life will follows.”
This lesson will provide you with the beginnings of the discourse of Human Rights in India.
1.2 History
From the times of Indus Valley Civilization to this day, Indian culture has been a product of the
synthesis of diverse cultures and religions that came into contact with this enormous Indian sub-
continent. Indian culture believes in the individual, the society and the universe us an organic whole
Everyone is God's child. All fellow beings are related to each other, belonging to universe family. All
religions and prayers would asked of God to make all people of the world happy.
Even though the ancient scriptures emphasized the principle of equality, there was still a gap.
Human in society have never been equal. Dominant groups have been monopolizing the social and the
material gains to themselves and deprived the others of them. In India caste system arose from the
principle of division of labor as a method of social organization. With time the castes which gained
power and wealth exploited the society and its institutions. India was invaded by Muslims. Human right
were aided by enlightened reformers, the kings like Ashoka and Akbar, which now forms the foundation
of our Indian culture. On these foundations stands the mutual respect for diverse religions and beliefs.
The British rule helped in the unification of India, its varied cultures, beliefs, stratifications etc.
The concept of nationalism took its roots during this period. The nature of national consciousness of
various sections of Indian society was governed by their reactions to the advent of British rule. This was
the beginning of the Indian National Movement.
1.3 Human Rights in India
British invasion brought with it a waif of Western education. The Indian who were educated won
familiar with the western ideas like sovereignty, state, nation, parliament, limited monarchy, responsible
government, rule of law, franchise, elections, uniform codes applicable to all classes, individual liberty
freedom of press and so on and so forth. The British conquest of India and establishment of a united
state created a framework for the growth of national consciousness.
Human Rights in India started finding recognition from the Bill of Rights in 1688, followed by the
American Declaration of Independence in 1766 and the French Declaration of Independence in 1789.
1.3.1 Indian National Congress 1885
The educated Indian contact weather English literature, history and system of the Government
awakened a desire among them to enjoy the individual liberty and the freedom of the press. The press
and the newspapers played a major role in stimulating the public desire and a longing for constitutional
government. In fact the Indian desire for Civil and Political Rights was very much implicit it the formation
of Indian National Congress in the year 1885. The pioneers of this movement set fort certain ideals like
:
 Creation at a strong body of public opinion in the country;
 Unification of the Indian races and people upon the basis of common political interests and
aspirations,
 Promotion of friendly feeling between Hindus and Muslims;
 inclusion at the masses in the great public movements of the day
1.3.2 Constitution of India Bill 1895
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The first explicit demand for fundamental rights appeared in the constitution of India Bill 1895.
The Bill proposed for India a constitution guaranteeing to all its citizens freedom of expression
inviolability of one’s house, right to equality before law, right to property, right to personal liberty, right
free education, etc. This bill was inspired by Lokmanya Bal Gangadhar Tilak. The demand for
fundamental rights in the constitution gained impetus with time at the hands of the leaders.
1.3.3 The Congress Resolutions
Numbers of resolutions were adopted between the period of 1917 and 1919 which repeated the
demand for civil rights and equality of status with the British. The resolutions called for equal terms and
conditions in “bearing arms”, for a ‘wider application of the system of trial by jury,” and for the right of
Indians “to claim that no less than one-half the jurors should be their own country men.”
The Congress Resolution of 1929 emphasized on the theme of socio-economic reconstruction
when it declared that the plight of Indian people is due to the exploitation of British. In order to make
changes in economic and social conditions of the Indians, it needed revolutionary changes to remove
the inequalities.

Self Assessment Questions:

1. Explain constitution of Indian Bill 1895.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2. Write a note on Congress Resolutions.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

1.3.4 The Mid-Twenties

Consciousness of Indian and their needs were instilled in the minds of the people. This largely
had the effect of the first World-War. The Indian political scene saw a drastic change with the arrival of
Mahatma Gandhi. The tone and form of demands for the acceptance of civil rights for the Indian people
also changed. It no longer stressed on sharing equal rights with English people, but it was now to
assure liberty among the Indians. Sharing equal rights with English were taken up in the independence
movement.
Another important development was the drafting of Mrs. Besant's Commonwealth of India Bill of
1925’. The Article. 4 of this Bill contained a list of seven fundamental rights:
a) Liberty of person and security of his dwelling and property.
b) Freedom of conscience and the free profession and practice or religion.
c) Free expression of opinion and the right of assembly peacefully without arms and of
forming associations or Unions.
d) Free Elementary Education
e) Use of roads, public places, courts of justice and the like.
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f) Equality before the Law irrespective of consideration of nationality.

g) Equality of the sexes.
Another historic development in the mid-twenties was the appointment of the Simon
Commission by the British Government in 1927. The Commission was to undertake a study of the
constitutional reforms in India. This move of the British provoked the Indian National Congress to form
a committee for drafting a Swaraj Constitution on the basis of a declaration of rights. This resolution
was passed in 1927 at the Annual Session or the Indian National Congress at Madras.
1.3.5 Nehru’s Report 1928
The committee formulated by the Indian National Congress in Madras had Pandit Moti Lal
Nehru as its Chairman. This committee submitted its report popularly called as the 'Nehru Report'. It
included the fundamental rights, which were the rights enlisted in the Commonwealth of India Bill of
1925.
1.3.6 Sapru Committee Report 1945
The All Parties Conference in 1944-45 appointed a committee with Sir Tej Bahadur Sapru as its
Chairman. Sapru report stated that the “Constitution demands and expects perfect equality between
one section of the community and another in the matter of political and civil rights, equality of liberty and
security in the enjoyment of the freedom of religion, worship and the pursuit of the ordinary applications
of life”.
1.3.7 British Cabinet Mission 1946
The mission recognized the need for giving a written guarantee for the fundamental rights in the
Constitution of India in paragraph 19 and 20 of its statement of May 16, 1946. It envisaged a
constituent assembly for framing the Constitution of India. It recommended the setting-up advisory
committee for reporting to the assembly inter-alla on Fundamental rights.
It was in August 1946 that India was heading towards independence. Congress formulated a
committee to draft the fundamental rights. The Viceroy of India tried his level best to bring about
reconciliation between the Muslim League and the Congress but the wedge kept widening. On Vicaroys
invitation Congress was invited to form the interim government. Jawahar Lal Nehru was appointed as
the Vice-President to the Viceroy's Executive Councilor a defacto Prime Minister. The Muslim League
later joined the interim government. A meeting of the constituent assembly was convened on December
9, 1946, but was boycotted by the Muslim league. it was on June 3, 1947 that Lord Mountbatten, the
viceroy announced that on August 15; England would recognize the existence of two independent
states on the sub-continent India and Pakistan. Accordingly, the India independence Act passed by the
British Parliament came into force on' August: 15, 1947, giving legally the status to the Constituent
Assembly.
1.4 Summary
The contact of the Indians to the 'literature history and the system of the government of the
English, awakened a desire among the educated and enlightened Indians to enjoy the individual liberty
and freedom of the press. The Indian National Movement was able to achieve the dream of every
Indian through a spirit of nationalism and lot of perseverance.

1.5 References
 9

• Bajwa, O.S. (1995) 'Human Rights in India: Implementation and Violations', New Delhi;
Ammol Publications Pvt. Ltd.
• Jaswal P.S. Jaswal N, (1996) Human Rights and the Law'. New Delhi: APH Publishing
Corporation.
• Limaye, M. (1989) Indian National Movement its Ideological and Socio-Economic
Dimensions'. New Delhi: Radiant Publishers.
• Malhotra S et.al. (2005) Homan Rights: Emerging issues'. New Delhi: Kilaso Books.
• Saksena K.P. (1999) Human Rights: Fifty Years of India's independence' New Delhi: Gyan
Publishing House.
• Subsramanian, S. (1997) 'Human Rights: International Challenges'. Vol. II. New Delhi:
Manas Publications.
• Talwar P. (2006) 'Human Rights’. New Delhi: Isha Books.
1.6 Further Readings
• Basu, Durga Gas, Human Rights in Constitutional Law (Prentice Hall, New Delhi) 1994.
• R.P. Anand, International Law and Developing Countries (Banyan Publications, New Delhi)
1996.
1.7 Model Questions
1. Explain the beginnings of the human rights discourse in India.
2. How Human Rights became the part of the Constitution of India? Discuss.

******
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Lesson-2

HUMAN RIGHTS CONCERNS AND

THE MAKING OF THE INDIAN CONSTITUTION
Structure
2.0 Objective
2.1 Introduction
2.2 Human Rights & Indian National Movement
2.3 Human Rights & Framing of Indian Constitution
2.4 Human Rights and Constitution of India
2.5 Status of Human Rights in India
2.6 Summary
2.7 References
2.8 Further Readings
2.9 Model Questions
2.0 Objective
The objective of this chapter is:
 To understand the human rights concerns while framing the Indian Constitution
2.1 Introduction
“As the world sleeps, India shall awake to freedom”, declared Pt. Jawaharlal Nehru on the, eve
of independence. What exactly did this freedom imply and how was it to be actualised? These were
issues which had been debated almost since the beginning of the national movement in India: It had
been repeatedly asserted that mere political independence from foreign yoke would not suffice to “'wipe
the tears from every eye”. This freedom had to be moored in a libertarian and egalitarian Constitution,
which guaranteed fundamental human rights to all citizens, regardless of race, class, caste or sex.
2.2 Human Rights and the Indian National Movement
Human Rights formed the thread which wove through the entire national movement. The focus
was not only on the achievement of civil and political rights, but equally the attainment of social and
economic rights- for political freedom is meaningless without social and economic freedom.
The first unequivocal demand for fundamental rights came in the Constitution of India Bill, 1895,
which demanded the right of free speech and imprisonment only by competent authority. Between 1917
and 1919, a series of resolutions were passed by the Indian National Congress, which articulated the
demand for various civil and political rights. These included equal terms and conditions in bearing arms,
a wider application of the system of trial by jury, equality before the law, free press, free speech, self-
government, etc.
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Fundamental rights, equally formed the core of Annie Besant's Commonwealth of India Bill,
1925, which in Article 4, entitled Declaration of Rights, sought to provide various rights to the citizens,
including right to liberty, property, speech, assembly .etc. Irrespective of nationality and based on
equality of the sexes. The Nehru Report of 1928, besides reiterating some of the rights stated in Annie
Besant's Bill, sought to expand the notion of fundamental rights to include economic and social rights
such as the right to free elementary education, health and fitness of workers, living wages, protection of
motherhood, infirmity and unemployment. Granville Austin remarks, “The rights laid down by the Nehru
Report were a close precursor of the Constitution; ten out of nineteen sub-clauses reappear materially
unchanged and these are included as directive principles.”1
Fundamental rights also gained centre-stage at all the three Indian Round Table conferences.
The historic Karachi Resolution of the Indian National Congress of 1931 also stated that the “Congress
was of the opinion that political freedom must include real economic freedom in order to bring an end to
the exploitation of the masses.”2 Granville Austin characterised this resolution as both “a declaration of
rights and a humanitarian socialist manifesto.”3 The Sapru Committee of 1945 as much recommended
that a declaration of fundamental rights was absolutely necessary. It also made a distinction between
justiciable and non-justiciable rights, but the context was not the distinction between civil and political
rights and socio-economic rights, rather that of minority rights.1
2.3 Human Rights and the Framing of Indian Constitution
The hopes of the national movement found their embodiment in the Constituent Assembly. A
Constitution is informed by the vision of its founding fathers. The founding fathers of the Indian
Constitution were motivated by the exuberance of the national movement, the ideals propounded by it
and the vision of an India, where liberty and equality formed the central core of social, political and
economic life. A clear understanding of the human rights incorporated under the Constitution requires
an understanding of the spirit which fostered their incorporation. This can be obtained only from an
analysis of the Constituent Assembly Debates on the subject.
A perusal of the Constituent Assembly Debates clearly reveals the general understanding
amongst members of the Assembly that fundamental human rights were to be a basic characteristic of
the Constitution of India. Yet they were faced with a perennial dilemma: that of preserving individual
liberty while promoting the good a the people. They were convinced that civil and political rights could
not be obtained without the simultaneous achievement of social and economic rights and yet
achievement of the latter required increased state interference in individual liberty. The members of the
Constituent Assembly had a two fold objective in mind: one was to usher in a new social order, where
justice-social, economic and political would inform all institutions of national life and the other was to
prevent the executive from depriving the people of their rights.
On December 15, 1946, Nehru moved the Objectives Resolution in the Constituent Assembly
defining the aims and objects of the Assembly and the Constitution. This Resolution, among other
things emphasized justice, equality and liberty, the trinity of ideals, which were to become the
foundation stones for the entire edifice of the Constitution.

1. Granville, Austin, The Indian Constitution: Cornerstone of a Nation, OUP, Bombay, 1979, p. 55. P.S. Jaswal, Directive
Principles Jurisprudence and Socio-Economic Justice in India, Unpublished Ph.D thesis.
2. Panjab University, 1988, p. 33
Granville, Austin, op.cat, p. 56
3. Ibid, p. 57.
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B.N. Rau, the Constitutional Adviser to the Government of India suggested that the two sets of
assurances specified in the Objectives Resolution be split into two:- first, fundamental rights relating to
personal liberty and political freedom and enforceable in a Court of law, and second, fundamental
principles of state policy relating to social, economic and other matters. This led to the problem of
deciding which rights would be justiciable and which non-justiciable. A related problem was of providing
effective protection and implementation for these.
Here it must be mentioned that task of drafting the Constitution had been entrusted to five sub-
Committees, one of which was me Fundamental Rights sub-Committee. Mention must also be made of
the fact that the Rights sub-Committee also had women representation in that two women members,
Raj Kumari Amrit Kaur and Hansa Mehta were included in the said Committee. A great debate on the
type of rights to be included in the Constitution of India ensued. There was little disagreement among
the members on principles- for the basis for the inclusion of fundamental rights in a future Constitution
of India had been laid down by the national movement. As Austin observes, “What disagreement there
was centred primarily around the classic predicament of the degree to which personal liberty should be
infringed to secure governmental stability and the public peace, of how conditional the statement of a
right should be.”24
The discussions in the Sub-Committee and later in the Constituent Assembly reveal the nature
and scope of fundamental rights as adopted in the Constitution of India. That the fundamental rights
were not to be absolute became clear in the drafting of several provisions. For instance, the principle of
equality before the law, it was felt, could hamper reform. Ayyar for instance, believed, that “It might
prevent the passage of laws differentiating between men and women factory workers, thereby denying
women special protection. It might also also prevent treating children and adults differently in criminal
courts.”15 Accordingly, he recommended using the phrase” no person should be denied the equal
protection of law” and this wording was included in the Constitution. Again concerning the ban on
forced labour, there was a debate on the question of involuntary labour in the form of military or social
conscription for some members or the Sub-Committee felt that military conscription could be essential
in times of national emergency thus me Committee ultimately accepted that the State could impose
compulsory service for public purposes.
Likewise, during the discussion on freedom of religion, it was felt that free practice of religion
would lead to re-entry of certain anti-social practices such as sati and devadasi system. Hence, the
provision that the existenœ of these rights does not prevent the state from making laws and rules
providing for social welfare and reform in the Constituent Assembly, not much discussion ensued on
the provisions relating to profession and practice of religion. It was only the clause regarding
propagation of religion which attracted attention and drew the ire of members like Loknath Misra, Who
declared the provision to be a “Charter of Hindu enslavement” Opinion was divided on this issue; while
some members opposed it, others favoured its retention. The debate mainly arose from the fear of
some members that the right to propagate religion may lead to the swamping of Hinduism by Islam and
Christianity through conversions caused by propagation. The Draft Constitution also contained a clause
banning conversions through coercion and undue influence. Conversion caused disagreement among
members and it was subsequently deleted from the Draft Constitution.
The Sub-Committee also considered one of the most fundamental of rights in a democracy, viz.
universal suffrage and secret and periodic elections. However, it was decided to include the provision

4. Granville, Austin, op.cit, p. 63

5. Ibid p 64.
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for universal adult suffrage in the Constitution, but not in the chapter on fundamental rights. It was
included as Article 326 of Part XV on elections.
As regards provision of an inbuilt mechanism to safeguard fundamental rights, the members of
the Committee were strongly in favour of inclusion of legal remedies for securing fundamental rights,
through the method of writs, which was done through inclusion of a Right to Constitutional Remedies as
a fundamental rights itself.
Although fundamental the rights, it was realized, had to be limited for absolute rights could
mean absolute liberty for Some and absolute slavery for others. The dilemma was about the extent of
the limitations and how far these should be specified. lt was decided not to adopt the American method
of leaving it to the Supreme Court with its doctrine of police power to decide on the limitations of the
fundamental rights but to enumerate the limitations in the Constitution itself. So specific and detailed did
this enumeration become, that a member of the Constituent Assembly commented that the chapter
should be titled Fundamental Rights and the Limitations thereon. The idea of limiting the fundamental
rights was not new. Even the various resolutions on rights adopted during the national movement had
recognized the need to limit the rights. The major issue was how to qualify the rights. The members were
quite in agreement about the need to limit individual liberty by allowing state intervention for certain social
purposes. However, there was little agreement on the need and extent of circumscribing the basic freedoms
of speech, assembly, association and movement. The Committee ultimately agreed to limit the rights in the
interest of “public order and morality”.
Another issue which arose in this context was the issue of suspension of fundamental rights in
an emergency, which was particularly relevant in view of the conditions which accompanied
independence and partition. As Austin aptly remarks, “Fundamental Rights were to be framed among
the carriage of fundamental wrongs.”16
In the Constituent Assembly, the Sub-Committee and later the Drafting Committee's desire for
restrictions on fundamental rights drew the ire of the members. Pt. Thakur Das Bhargava moved an
Amendment seeking to add the word 'reasonable' before restriction in Article 13 and the same was
accepted,
As stated earlier, it had been decided not to make all fundamental rights justiciable. The non-
justiciable fundamental rights were to be incorporated in a separate Chapter, entitled Directive
Principles of State Policy. The idea of Directive Principles was taken from the Irish President of
justiciable and non-justiciable rights. There was one stream of opinion expressed by Munshi, Ambedker
and Shah which would have preferred to make the Directive Principles justiciable. This was also the
initial approach of the Rights Sub-Committee members. But they were ultimately accepted as
unjusticiable in the belief that half a loaf is better than none.
The Directive Principles, even though specifically non-justiciable were considered by the
members of the Sub-Committee to be vital to the social progress of the country. K.T. Shah specifically
stated that “The principles included in the so-called non-justiciable rights are not mere “directions” of
policy for their general guidance; they must be regarded as objectives of national activity, which must
be the endeavour of every unit as well as of the Union to give concrete effect to so that every citizen
may enjoy the fruits in his daily life.”27 The opening clause of the Draft prepared by the sub-Committee
clarifies the fundamental nature of the Directive Principles. At the same time, there were suggestions
that a time limit be fixed for giving effect to the Directive Principles.

6. Granville, Austin op.cit, p. 71

7. Ibid, p. 49.
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One issue that generated a lot of debate and controversy in the Constituent Assembly was that
of Universal Civil Code. Its protagonists including K.M. Munshi and B.R. Ambedkar emphasised its
necessity in the existing social set up. Dr. Ambedkar declared that”...if personal law is to be saved, I
am sure about it that in social matters we shall come to a standstill.” The proposal for a uniform civil
code was, however, vehemently opposed at various stages of deliberations in the Constituent
Assembly. The provision was ultimately relegated to the Directive Principles, which are not enforceable
in a Court of law. But what needs to be emphasised here is that discussion over the uniform civil code
revolved not around the issue of human rights, particularly of women, but around religion and religious
identity. The various religious groups saw their identity in the continuation of separate personal laws
which are based among other things on denial of human rights to women.
2.4 Human Rights and the Constitution of India
The task was the achievement of a social revolution, of national renaissance as it were, the
means adopted were rights, civil and political as well as social economic and cultural. “The India
Constitution”, proclaims Granville Austin, “is first and foremost a social document”38 He goes on to add,
“….the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental
Rights and in the Directive Principles of State Policy. These are the conscience of the Constitution.”49
He further adds, “And they were included in the Constitution in the hope and expectation that one day
the tree of true liberty would bloom in India. The Rights and Principles thus connect India’s future,
present and past…..”510
The ideals embodied in the Objectives Resolution are faithfully reflected in the Preamble, which
sets the tone and represents the spirit of the Constitution. Through the Preamble, the Indian
Constitution commits the Sovereign, Socialist, Secular, Democratic, Republic of India to the goal of
fundamental human rights of the citizens of India, thus declaring, in no uncertain terms, the securing of
“Justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality
of status and of opportunity…” to be its goal. The message of the Preamble was translated into various
Articles dealing with different facets of human rights in Parts Ill and IV of the Constitution.
By incorporating Fundamental Rights in Part III and Directive Principles in Part IV of the
Constitution, the founding fathers attempted to harmonise civil and political rights with economic, social
and cultural rights: Together, these two parts of the Constitution proclaim the humanistic core of the
Indian Constitution, aiming at the betterment of the individual as an integral component of society and
to enable her to develop his/her personality in accordance with the tenets of the human rights culture.
A close look at the rights guaranteed by the Indian Constitution reveals them to be consistent
with the basic principles underlying the Universal. Declaration of Human Rights. Thus the first set of
rights viz. Articles 2 to 21 of the UDHR are incorporated in the Chapter on Fundamental Rights, while
Articles 22 to 28 of the Declaration are incorporated in the Chapter on Directive Principles of State
Policy.
The fundamental rights not only protect individual liberty .from encroachment of the State, but
also from the action of other individuals. Subhash Kashyap regards it as “one of the most elaborate
charters of human rights yet named by any State...”11 The chapter on fundamental rights begins with
the explicit invalidation of all in force that are inconsistent with the rights guaranteed by the Constitution.

8. Ibid, p.50
9. Ibid, p.50
10. Ibid, p.50
11. Subhash C. Kashyap, Human Rights and Parliament, Metropolitan, New Delhi, 1978, p.33.
 15

Recognising equality as being the essence of social justice, the Indian Constitution provides that
no one is above the law and that every one is entitled to equal treatment under similar circumstances.
The Constitution specifically mandates the States, not to deny, to the citizens of India, equality before
the law or equal protection of laws within the territory of India. (Article 14). “To equalize, to level up and
to aid by state action, the depressed, deprived, disabled victims- the underdogs of Indian society-that is
me implication of Article 14” writes Justice Krishna lyer.212
Lest the promise of equality be violated, the Constitution 'specifically provisions discrimination
against any citizen while providing for protective discrimination in certain cases (Article 15). Further, the
Constitution also provides for equality of opportunity for all citizens in matters relating to employment
and holds that no citizen shall be ineligible for any office under the State on grounds of religion, race,
caste, sex, descent, and place of birth or any of them (Article 16). But the same Article allows the State
to reserve any post or appointment in favour of any backward class of citizens, who are not adequately
represented in the services under that State.
The Indian Constitution also prohibits Untouchability (Article 17), when has been the bane of
Indian society since ancient times and a great obstacle to the universality and indivisibility of human
rights in India.
Equality and liberty are considered two sides of the same coin, viz you cannot have one without
the other. The Constitution of India confers a pride of place to both by inscribing both in the
fundamental rights Article 19 of the Constitution thus confers various freedoms including right to
freedom of speech and expression, freedom of assembly, to form associations or unions, to move
freely throughout the territory of India, to reside and settle in any part of the territory of India and to
practice any profession, or to carry on any occupation, trade or business. Article 20 provides for
protection in respect of conviction for offences. In the same vein, Article 22 of the Constitution provides
for prevention against arbitrary arrest and detention. An individual's rights to life and personal liberty are
given special protection under Article 21 of the Constitution. It is significant that the Indian Supreme
Court has greatly expanded the concept of right to life by its interpretations where, it has included
numerous rights including right to education, right to livelihood, right to live with human dignity, right to
health etc. in the very right to life itself.
Further, the Indian Constitution prohibits traffic in human beings, begar and similar other forms
of forced labour, while allowing the State to impose compulsory service for public purposes; but in
imposing such services, the Constitution prohibits the State from discriminating against any person on
grounds only of religion, race, caste, class or any of them. (Article 23) The Constitution also prohibits
the employment of children below the age of fourteen years in any hazardous employment.
Freedom of religion, which's the very core of a secular State and an absolute necessity in a
State with a large number of minorities is also guaranteed under the fundamental rights. Not only does
an individual have the right to freedom of conscience and to free profession, practice and propagation
of religion, but the Constitution also provides for freedom of the religious group to manage religious
affairs. It also prevents the religious groups from violating the freedom of individuals by prohibiting them
from imposing taxes in the name of religion as well as prohibiting the imparting of religious instruction at
institutions maintained wholly out of State ends. Likewise, Articles 29 and 30 focus on cultural and
educational rights, which entitle minorities to have and protect a distinct language, script and culture of
their own as well as set up and maintain educational institutions of their choice.

12. V.R. Krishna lyer, Indian Social Justice in Crisis, Affiliated East-West Press Pvt. Ltd, Madras, 1983, p. 20.
 16

The entire edifice of the fundamental rights revolves around Article 32 which provides for
Constitutional remedies in case of infringement of fundamental rights.
Economic and social rights are contained in the Directive Principles of State Policy, which
although legally unenforceable are declared as fundamental in the governance of the country. To quote
Granville Austin once again, “In the Directive Principles, however, one finds an even clearer statement
of the social revolution. They aim a making the Indian masses free in the positive sense, free from the
passivity engendered by centuries or coercion by society and by nature, free from the object physical
conditions that had prevented them from fulfilling their best selves.”113
The Constitution directs the state to strive to minimise inequalities in income and eliminate
inequalities in status, facilities arm opportunities not only amongst individuals, but also amongst groups
of people residing in different areas or engaged in different vocations. (Article 38). The Constitution
further provides that the ownership and control of the material resources of the community are so
distributed as to sub-serve the common good and also that the operation of the economic system does
not result in the concentration of wealth and means of production to the common detriment (Article 39
(b) and (c)). Further, the 25th Amendment to the Constitution of India provides that no law aimed at
enforcing Articles 39 (b) and (c) would be declared void on the grounds that it conflicted with Articles
14, 19 or 31.
Besides prohibiting discrimination on the basis of sex and traffic in human beings, the
Constitution in its attempt to provide gender justice, further directs the State to ensure that men and
women, equally have the right to an adequate means of livelihood (Article 39 (a)) and that there is
equal pay for equal work for both men and women (Article 39 (d). The Rights of the child are again
given significance in that the Constitution prohibits their employment in any hazardous occupation and
further provides that their tender age is not abused and they should not be forced by economic
necessity to enter avocations unsuited to their age or strength. (Article 39 (e)) They should further be
given opportunities and facilities to develop in a healthy manner and in conditions of freedom and
dignity and that childhood and youth are protected against exploitation and against moral and material
abandonment. (Article 39 (f)). The Constitution also directs the State to secure for all children free and
compulsory education until they attain the age of 14 years. (Article 45).
The Constitution, further directs the State to make effective provisions for securing the right to
work, to education, and to public assistance in cases of unemployment, old age, sickness, disablement,
and in other cases of undeserved want. (Article 41). The State is further directed to secure for all
workers, work, a living wage, conditions of work ensuring a decent standard of living and full enjoyment
of leisure and social and cultural opportunities. (Article 43). Article 43-A inserted by the 42nd 14
Amendment provides that the State shall take steps to secure the participation of workers in the
management of undertakings, establishments or other organisations engaged in any industry. Article 46
specifically mandates the State to protect and promote the educational and economic interests of
Schedules Castes, Scheduled Tribes and other weaker sections, while Article 47 imposes a duty upon
the State to raise the level of nutrition and the standard of living to improve public health.
It is essential to note that the original Constitution gave primacy to fundamental rights over
Directive Principles, but the 25th Constitution Amendment Act inserted Article 31 C which provides that
any legislation giving effect to Article. 39 (b) and (c) could not be declared void on the grounds of

13. Granville, Austin, op.cit, p. 51

14. I.C. Golak Nath vs State of Punjab AIR 1967 SC 1643.
 17

contravention of Articles 14, 19 and 31. This exemption was extended by the 42nd Amendment to the
whole gamut of Directive Principles.
Article 51 A added by the 42nd Amendment to the Constitution of India identifies the duties of the
citizens towards the nation and the people. The ten Fundamental Duties-given in Article 51-A of the
Constitution-can be classified as either duties towards self, duties concerning the environment, duties
towards the State, and duties towards the nation. Citizens are morally obligated by the Constitution to
perform these duties. However, these are non-justiciable, incorporated only with the purpose of
promoting patriotism among citizens. These obligations extend not only to the citizens, but also to the
State. There is reference to such duties in international instruments such as the Universal Declaration
of Human Rights and international Covenant on Civil and Political Rights. The Fundamental Duties
obligate all citizens to respect the national symbols of India (including the Constitution), to cherish its
heritage, and assist in its defence. It aims to promote the equality of all individuals, protect the
environment and public property, to develop “scientific temper”, to abjure violence, to strive towards
excellence, and to provide free and compulsory education.
Self Assessment Questions:
1. Define Human Rights.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2. Write a note on Sapru Committee.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
3. Write a note on Congress Resolutions.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

2.5 Status of Human Rights in India

These are the rights guaranteed by the Indian Constitution. However, rights are not static, but
change with the times. They have changed not only with the various Constitutio.nal Amendments, but
also through interpretations of the judiciary. The Supreme Court of India has also used its powers of
interpreting the Constitution to elucidate rights where they did not previously exist or to expand a
traditional right-to include a whole vista of new rights. A detailed enumeration is not possible. So a few
examples would have to suffice.
In the I.C. Golak Nath case', the Supreme Court declared the fundamental rights to be the
modern version of natural rights. The Supreme Court has also interpreted the right to education to be a
 18

part of the right to life115, thus indirectly elevating it to the status of a fundamental right. Later, the 86th
Constitutional Amendment inserted that same right into Article 21 A of the Constitution.
Likewise, the right to life has been interpreted by the Supreme Court to include various other
rights. In Francis Coralie Mullin v Union Territory of Delhi216 the Court held, “The right to live is not
restricted to mere animal existence it means something more than just physical survival. The right to
live' is not confined to the protection of any faculty or limb through which life is enjoyed or the soul
communicates with the outside world but it also includes the right to live with human dignity, and all that
goes along with it, namely the bare necessities of life such as, adequate nutrition, clothing and shelter
and facilities for reading, writing and expressing ourselves in diverse forms, freely moving about and
mixing and commingling with fellow human beings.” In Olga Tellis v Bombay Municipal Corporation the
Supreme Court held that the word 'life in Article 21 includes the right to livelihood' and that such right
can be curbed or curtained only by following a just, reasonable and fair procedure, However, in another
case, the Court held that this was not feasible.417
In the Kesavananda Bharti v State of Kerala case the Supreme Court ruled that all provisions of
the Constitution, including Fundamental Rights can be amended. However, the Parliament cannot alter
the basic structure of the Constitution, like secularism and democracy. Often called the “Basic structure
doctrine”, this decision a widely regarded as an important part of Indian history. In the Maneka Gandhi
case, the Supreme Court extended the doctrine's importance as superior to any parliamentary
legislation. The Court held that no act of parliament can be considered a law if it violate the basic
structure of the constitution. This landmark guarantee of Fundamental Rights was regarded as a unique
example of judicial independence in preserving the sanctity of Fundamental Rights.
Another noteworthy case where the Supreme Court used international law and conventions to
fill in a void in domestic law is that of Visakha v State of Rajasthan.18 In the said case, the “Supreme
Court proceeded to fill the existing void in the domestic law with respect to prevention of sexual
harassment using outcomes from CEDAW, and laid down guidelines to be followed at the workplace.
The Supreme Court stated that so far as the international conventions were consistent with the
fundamental rights and in harmony with its spirit, the must be read into the provisions of the
Constitution to 'enlarge the meaning and content thereof, to promote the object of the constitutions
guarantee.”19
Apart from the Supreme Court, the Government of India has taken a number of initiatives to
further the human rights of citizens and to alleviate the human rights abuses. For example, in 2005, the
Government established a Committee to review the Armed Forces Special Powers Act. It also ensured
an end of human rights abuses & me armed forces deployed in Kashmir.. New legislation has
strengthened the right to information rights over land and minimum employment guarantees. The
Protection of Women Against Domestic Violence Act came into force in 2005. By definition, it expanded
the notion of domestic violence to include physical, verbal, emotional, sexual, and economic abuse. I
covers all women who are in or have shared a relationship with the abuser. Mention may be made of
the Child Labour (Prohibition and Regulation) Act, 2006 which came into force on October 10, 2006
which prohibits the employment of children even in domestic labour.20

15. Mohini Jain v State of Karnataka, (1992)3 SCC 666.

16. (1981) 1 SCC 608
17. AIR 1986 SC 180
18. Delhi Development Horticulture Employee's Union v Delhi Administration AIR 1992 SC 789
20. South Asia Human Rights Documentation centre, Introducing Human Rights, OUP, New Delhi, 2006, p.6
 19

However, human rights continue to be fragile, with both the State as well as other groups and
entities making inroads into their terrain. The violations of human rights cut across caste, race religion
and gender lines, ranging from disappearances to violation of the right to even take birth. The viotalors,
range from those entrusted with protecting the human rights of the citizens viz. police and aimed forces,
to the State and its institutions and to other groups and individuals in society. Loopholes in laws and
even the Constitution have more often than not been used to deny human rights to citizens. Lack of
effective implementation further strengthens the violators of human rights. Again the instances are
many and numerous reports have documented these. However, the present section just provides a
brief overview of the kind of human rights violations currently persisting in Indian society.
Rights of citizens continue to be violated by armed forces in most of the disturbed areas of the
country, including Kashmir, the North East The Human Rights Watch reports that “Indian military,
paramilitary and police forces nave engaged in serious human rights abuses in conflict zones and yet
there have been no attempts at transparent investigations or prosecutions of those responsible.” Not
only have the security forces indulged in widespread human rights abuses, a whole lot of people have
disappeared at the hands of both militants and security forces. Disappearances appear to be a
common occurrence where there is a militant resistance to the State.
Apart from these abuses by the fortes supposed to protect human rights discrimination and
violations of human rights on the basis of caste, class, religion and gender continues unbiased. Debits
are particularly vulnerable to these human rights abuses as they lack knowledge and awareness of
their rights as well as the necessary economic power to enable them to stand up for their rights. In a
May 2005 report, After the Daluge, Human Rights Watch documented “numerous instances in which
higher caste communities refused to share post-tsunami emergency relief with Dalits. Ongoing abuses
against Dalits include harrassment, excessive force by security forces in routine matters, mutBallons,
and killings by members at other cases for attempting to cross caste barriers. For example in
September 2005, more than fifty Dallt homes were burned down by the upper-caste Jat community in
Haryana state.”21 Persistence of Untouchability, notwithstanding abolition of Untouchability having been
given the status of fundamental right, continues to be a blot on the face of human rights in India.
Another major human rights violation in this regard may be said to be continuation of the occupations of
scavenging and lifting of night-soil on the heads. There is also the increasing instance of Khap
Panchayats (Caste Panchayats) establishing themselves as extrajudicial centres of power and
punishing persons acting in contravention of their wishes, particularly in the instance of marriage within
the caste or intra-caste, resulting n the public lynching of the couple or their relatives or other such
gruesome punishment.
Another human rights abuse, particularly in areas where maga development projects are being
put in place is displacement which results in further abuse of human rights of certain groups of people.
This is particularly true of scheduled Tribes and Adivasis. According to Human Rights Watch, “They
make up 8 percent of the total population but constitute 65 percent of displaced people. This has had a
serious effect on the overall development of these communities, particularly tribal children.”22
Displacement leads to a number of human rights issues, including increased poverty, impossibility or
difficulty of rehabilitation, dental of rights over identity, resource, alienation of land, etc.
Displacement is caused not only by development projects, but may also be the result of conflict,
(Examples of Kashmir and Punjab immediately come to mind where a large number of people were
displaced due to the militancy), which again results in severe violation of human rights of displaced
persons. Here the displacement may be internal (within the country) or external (outside the country),

22. www.hrw.org.
 20

India is the destination of a large number of refugees from neighbouring conflict prone States, yet it has
not ratified the 1951 UN Convention on Refugees.
A large proportion of the population of India continues to live below the poverty line, which while
in itself a human rights violation; also leads to a larger violation of the human rights of the persons so
affected. Poverty impacts their education health, livelihood right to food and so on. Poverty also leads
to another major problem, that of trafficking, Women and children are particularly vulnerable to this as
they are sold into flourishing commercial sex market. Lakhs of Women and children are trafficked as
Sex Workers. Thriving Prostitution Rackets, Call Girl Trade, Massage. Parlours Mutta Marriages,
Forced marriages for Sexual Slavery and bondage are a blot on the human rights record of India.
Women are increasingly falling prey to trafficking for prostitution, Human Trafficking has been identified
as the third largest source of profit for organized crime, following weapons/ arms and drug trafficking,
generating billions of dollars annually. The types of work that use trafficked labour usually involve
exploitative working conditions that are gross violations of human rights and labour standards.
Women continue to be the worst affected by human rights violations, both visible and invisible.
The declining sex ratio has brought to the fore the issue of missing women. The right to life is
meaningless for the women who are not allowed the right to take birth. Female foeticide is the most
prominent current manifestation of violation of the human rights of women.
Violence against women is assuming newer and more terrible forms, notwithstanding the
legislation enacted as a result of the, efforts of the women's movement. Rape, including marital rape
(which is not even recognised as rape in India law), sati, increasing dowry deaths, child marriages
(Akha Teel festival in Rajasthan where group child marriages are performed is a case in point),
domestic violence are just a few examples of the atrocities perpetrated on women.
If these direct atrocities are not enough, women are the worst impacted by the development
process, which has resulted in increasing feminisation of poverty (According to UN Statistics, 70 per
cent of the world's poor are women), lack access to health care, and are increasingly becoming the
victims of contractualisation of labour.
Where the rights of women are concerned, cultural rights demanded by the various communities have
tended to perpetuate the continued subordination of women both individually and collectively. Continuation of
separate personal laws based on considerations other than those of equality and liberty have resulted in the
denial of basic human rights to women Further, the entire issue of intra-group equality continues to be
neglected.
Agreed that the Constitution of India does not discriminate on the basis of sex, but the age old
discriminations, which have attained social security continue to perpetuate the dental of human rights to
women. A recent example is denial of temple entry to women in a temple in the South. Mention has
already been made of Khap Panchayats. These are increasingly being used to deny women the right to
choose their own partners. Another example of use of customary and religious practices to deny
women their rights to choose is the recent Gudiya case, where it was the Muslim clergy which decided
the fate of Gudiya.
Moreover, it is customary and traditional practices which restrict women from exercising their
various rights including the right to vote and political participation. Reservations of seats guaranteed to
women in Urban Local Bodies and Village Panchayats- a means to ensure women's political
empowerment is used by the males to secure to their own seats. The notion of Sarpanch pati is
common particularly in the northern States and the women continue to be used as rubber stamps.
 21

Children, likewise, continue to be one of the most vulnerable groups in regard to human rights.
A large proportion of children have no access to education (despite the right to education having been
included as a fundamental right) and continue to work long hours in the worst forms of child labour. Yet
this Act does not provide any alternate to the children who are the sole earning members of their
families and have no other access to resources. The Human Rights Watch reports that, “Recent
investigations show that hundreds of children, most of them living in remote tribal areas, died in the last
few years from causes linked to malnutrition. Children continue to be trafficked for marriage, sex work,
or employment. Tens of thousands of children, many of them girls, live on the streets where they are at
risk of physical abuse by police, heightened vulnerability to HIV transmission, trafficking 'and
recruitment into child labour.”123 The girl children continue to be invisible. Thousands of Children are
trapped in exploitative situations of Bonded Labour & Slavery.
Another group of people suffering serious human rights abuses is that of those infected with
HIV/AIDS. The Human Rights Watch reports that “The government estimates that in 2004, 5.134 million
people in India were living with HIV/AIDS, though many experts suggest that the number is much
higher. People living with AIDS, as well as those traditionally at higher risk-sex workers, injection drug
users, and men who have sex with men- continue to face stigmatisation and discrimination.”24 Here
again women continue to be the worst sufferers as they become innocent victims of the dreaded
disease.
Freedom of religion, notwithstanding, violent religious extremism continues unabated. A recent
example is the Gujarat-riots of 2002. There has still been little accountability for the deaths of more than
2,000 Muslims in Gujarat during the communal violence. Mention may be made of the fact that the
Government finally took responsibility for the 1984 anti-Sikh riots and the Prime Minister apologized to
the Sikh community. “Separately, in respect of counter terrorism measures, adopted by the police in
Punjab to contain a separatist movement, the National Human Rights Commission (NHRC). In
November 2004 found the state of Punjab “accountable and vicariously responsible” for its failure to
protect lives, and ordered compensation of 250,000 rupees (U.S. $ 5800) for each of the more than 100
victims of'summary execution. Thousands of other cases still remain to be investigated.”25
Conditions of prisoners continues to be deplorable, notwithstanding investigations and reports
by various Committees. Overcrowding in prisons, lack of facilities, including medical aid are only the tip
of the iceburg. A few years back, blinding of prisoners at Bhagalpur had occupied newspaper
headlines. However, even today, there are numerous instances of persons being held for years without
being brought to trial, of prisoners being tattoed or tortured in: prison. Custodial rape has been
highlighted by a number of cases: Mathura Rape case, Rameeza Bi Case. Maya-Tyagi case.
2.6 Summary
The instances of human rights abuse are many and cannot be documented in a few short
pages. Some additional human rights problems which may be mentioned include:
 extrajudicial killings and killings of persons in custody
 harassment of human rights workers, social activists and volunteers
 Continuation of extraordinary laws which are normally promulgated in an emergency or in
extraordinary situations.

23. www.hrw.org
24. Ibid.
25. Ibid
 22

 Continuation of the powers of Preventive Detention, which is more often than not abused.
 The death of numerous farmers across Andhra Pradesh and Punjab has brought to the fore
issues of protection of livelihood
 Continued persistence of bonded-labour.
2.7 References
 Austin, Granville, Working of Democratic Constitution - The Indian Experience (New Delhi :
Orient Longman) 2002.
 Anand, R.P. Development of Modern International Law and India (Nomos Germany 2005).
2.8 Further Readings
 Kapoor, S.K:, Human Rights under International Law and India Law, (2014) Central Law
Publications, Allahabad.
 Kapoor, S.K:, Human Rights under International Law, (2009) Central Law Publications,
Allahabad.
 Paul, R.C., Situation of Human Rights in India, (2000) Commonwealth New Delhi:
Publishers.
 Rao, Ashiwini, Status of Human Rights in India, (2010) New Delhi, Pacific.
2.9 Model Questions:
1. Trace the impact of Human Rights on Indian National Movement.
2. Discuss the status of Human Rights in context of women and children in India.
*****
 23

Lesson-3

UNIT II
FUNDAMENTAL RIGHTS AND FUNDAMENTAL DUTIES 1

Structure
3.0 Objectives
3.1 Introduction
3.2 Meaning
3.3 Features of Fundamental Rights
3.4 Fundamental Rights in Indian Constitution
3.5 Right to Equality: Articles 14-18
3.6 Right to Freedom: Article 19-22
3.7 Right against Exploitation, Article 23-24
3.8 Right to Freedom of Religion: Article 25-28
3.9 Right to Culture and Education: Article 29-30
3.10 Constitutional Remedies: Article 32
3.11 UDHR: It’s Influence on Fundamental Rights in Indian constitution
3.12 Summary
3.13 References
3.14 Further Readings
3.15 Model Questions
3.0 Objectives:
The objective of this chapter is:
 To examine the meaning of rights and duties to understand their need and importance in our
daily life.
 To evaluate the co-relation between Fundamental Rights and Human Rights and the
significance of Universal Declaration of Human rights on the provisions of Fundamental Rights
in Indian Constitution.
3.1 Introduction:
We have been extensively talking about the terms like ‘right to education’, ‘right to information’
and ‘right to protest peacefully’. It means an individual in a society has been given certain rights. But do
you think that every human being enjoys the rights or everyone performs the duties? Perhaps not. But
 24

everyone will agree that there are certain rights that must be enjoyed by the members of the society.
Moreover, the Indian Constitution has also enlisted certain core duties that every citizen is expected to
perform. These are known as Fundamental Duties. This chapter aims at discussing the details about
the Fundamental Rights and Fundamental Duties.
3.2 Meaning
In a democratic country like India there are rights that are guaranteed to every citizen. The
Constitution of India has guaranteed certain rights to its citizens. They are known as Fundamental
Rights. Infact the ‘Rights’ are rules of interaction between people. They place constraints and
obligations upon the actions of the state and individuals or groups. For example, if one has a right to
life, this means that others do not have the liberty to kill him or her. Rights are defined as claims of an
individual that are essential for the development of his or her own self and that are recognized by
society or State. These are legal, social, or ethical principles of freedom or entitlement and are the
fundamental normative rules about what is allowed to people or owed to people, according to some
legal system, social convention, or ethical theory. Rights are often considered fundamental to
civilization and are regarded as established pillars of society and culture.
On the other hand a duty is something that someone is expected or required to do. The parents,
for example, have a duty to take care of their child and the child has duties towards the parents. A
teacher has a duty to educate students. In fact, rights and duties are two wheels on which the chariot of
life moves forward smoothly. In fact the rights and duties go hand in hand and become complementary
to each other. Rights are what we want others to do for us whereas the duties are those acts which we
should perform for others. Thus, a right comes with an obligation to show respect for the rights of
others. The obligations that accompany rights are in the form of duties. If we have the right to enjoy
public facilities like transport or health services, it becomes our duty to allow others to avail the same. If
we have the right to freedom, it becomes our duty not to misuse this and harm others. Hence it is very
necessary that all citizens should be made aware of the potential of Article 51A relating to fundamental
duties as a means to ensure the protection of human rights.
3.3 Features of Fundamental Rights:
i. Fundamental Rights are an indispensable part of Indian Constitution. Twenty-four articles
are enjoined with these Fundamental Rights. Parliament can amend Fundamental Rights by
a special procedure.
ii. Fundamental Rights are only for Indian citizens. No alien is permitted to enjoy these rights
except right to life, liberty and personal property.
iii. Fundamental Rights are not absolute. Therefore within some reasonable restrictions citizens
can enjoy them. Fundamental Rights without prescribed conditions may disrupt public order.
iv. Fundamental Rights are suspended during the time of emergency and rights of the citizens
are curtailed temporarily except right to life and personal liberty (article-20-21).
v. Fundamental Rights are justifiable also. A citizen can go to the court for enforcement of his
Fundamental Rights if it is violated. Under Article 32 and Article 226 of the Indian
Constitution, a citizen can approach the Supreme Court and High Court respectively in this
regard.
vi. Fundamental Rights are amendable also. Parliament can amend these rights by a special
procedure.
vii. Some Fundamental Rights are positive while some others are negative in nature.
 25

viii. Fundamental Rights aim at restoring collective interest along with individual interest.
ix. Fundamental Rights are superior to ordinary law of the land. They are conferred a special
sanctity.
x. Some Fundamental Rights are limited to citizens only, such as freedom of speech,
assembly, and cultural and educational rights, but other rights like equality before the law,
religious freedom etc are available to both citizens and aliens
xi. Some provisions of Chapter-III of the Indian Constitution are of the nature of prohibitions and
place Constitutional limitations on the authority of the state. For instance, no authority of the
state can deny to any person equality before the law or the equal protection of the laws.
3.4 Fundamental Rights in Indian Constitution:
The most important rights which are recognized by the State and enshrined in the Constitution
are called fundamental rights. These rights are fundamental because of two reasons. First, these are
mentioned in the Constitution which guarantees them and the second, these are justifiable, i.e.
enforceable through courts. Being justifiable means that in case of their violation, the individual can
approach courts for their protection. If a government enacts a law that restricts any of these rights, it will
be declared invalid by courts. Such rights are provided in Part III of the Indian Constitution.
The Constitution guarantees six fundamental rights to Indian citizens as follows:
(i) Right to equality, Articles 14-18
(ii) Right to freedom, Article 19-22
(iii) Right against exploitation, Article 23-24
(iv) Right to freedom of religion, Article 25-28
(v) Cultural and educational rights, Article 29-30
(vi) Right to constitutional remedies, Article 32, Article 226
While these fundamental rights are universal, the Constitution provides for some exceptions and
restrictions.
The Fundamental rights enshrined in Indian constitution for Indians have the central aim of
overturning the inequalities of pre-independence social practices. They have also been used to abolish
untouchability and thus prohibit discrimination on the grounds of religion, race, caste, sex, or place of
birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and
educational rights of ethnic and religious minorities by allowing them to preserve their languages and
also establish and administer their own education institutions.
3.5 Right to Equality: Articles 14-18
The purpose of ‘Right to equality’ is to establish the rule of law where all the citizens should be
treated equal before the law. It has five provisions which deals with the equality before law or for the
protection of law to all the persons in India and also to prohibit discrimination on the grounds of religion,
race, caste, sex or place of birth.
Article 14: The Constitution says that the government “shall not deny to any person equality before the
law or equal protection of the laws.” It shows that the laws apply in the same manner to all, regardless
of a person’s income, status, background etc.For example, if some official is found guilty of a crime
then he or she should be given the same punishment as applies to any other person. No one can claim
 26

special treatment because of his or her class or background. The Constitution guarantees that all
citizens will be equal before law. It means that everyone will be equally protected by the laws of the
country. No person is above law. Further, it means that if two persons commit the same crime, both of
them will get the same punishment without any discrimination.
Article 15 provides that there shall be no discrimination on the basis of Religion, Race, Caste, Sex or
Place of Birth: The State cannot discriminate against a citizen on the basis of religion, race, caste, sex
or place of birth. This is necessary to bring about social equality. Every citizen of India has equal
access to shops, restaurants, and places of public entertainment or in the use of wells, tanks or roads
without any discrimination. However, the State can make special provisions or concessions for women
and children.
Article 16 has dealt with the Equality of Opportunity to all Citizens in matter of Public Employment. It
mentions that the state cannot discriminate against anyone in the matter of public employment. All
citizens can apply and become employees of the State. Merits and qualifications will be the basis of
employment. However, there are some exceptions to this right. There is a special provision for the
reservation of posts for citizens belonging to Scheduled Castes, Scheduled Tribes and Other Backward
Classes (OBCs).
Article 17 prohibits the practice of untouchability in any form and it has been made a punishable
offence under the law. The Constitution clearly states, “Untouchability is abolished and its practice in
any form is forbidden.” This provision is an effort to uplift the social status of millions of Indians who had
been looked down upon and kept at a distance because of either their caste or the nature of their
profession. But, it is really very unfortunate that despite constitutional provisions, this social evil
continues even today.
Article 18 of the Indian Constitution pertains to the abolition of Titles. All the British titles like Sir
(Knighthood) or Rai Bahadur which were given to the British loyalists during the British rule, have been
abolished because they created distinctions of artificial nature. However, the President of India can
confer civil and military awards to those who have rendered meritorious service to the nation in different
fields. The civil awards such as Bharat Ratna, Padma Vibhushan, Padam Bhushan and Padma Shri
and the military awards like Veer Chakra, Paramveer Chakra, Ashok Chakra are conferred.
3.6 Right to Freedom: Article 19-22
The Constitution lists many kinds of things that we as individuals, are ‘free’ to do. This means
that no one should stop us from having these freedoms. However, along with freedoms there are some
restrictions, i.e. some things that we are not supposed to do.
The following are the four categories of Rights to Freedom:
I. Article 19 of the Constitution provides for the following six freedoms:
a) Freedom of speech and expression
b) Freedom to assemble peacefully and without arms
c) Freedom to form Associations and Unions
d) Freedom to move freely throughout the territory of India
e) Freedom to reside and settle in any part of India
f) Freedom to practice any profession or to carry on any occupation, trade or business
However, the Constitution has authorized
 27

It is important to note that the citizens are free to express their views in many ways such as
through meetings, publications, plays, paintings etc. But the reasonable restrictions are imposed on the
Right to Freedom of speech and expression in the interests of the sovereignty, integrity and security of
India, friendly relations with foreign States, public order, decency or morality, or in relation to contempt
of court, defamation or incitement to an offence.
The people of the country also have the right to come together or assemble for many reasons
such as to hold meetings about their rights, to discuss their problems or business issues, to exchange
ideas and share views etc. Everyone also has the right to carry out demonstrations, public meetings
and rallies. However, the Right to assemble peacefully and without arms may be restricted in the
interests of the sovereignty and integrity of India or public order while the right to form associations or
unions may have restrictions in the interests of the sovereignty and integrity of India, public order or
morality. The people also are free to form many kinds of associations, cultural groups, business
associations, trade unions etc. For example, you may have heard that many factories have workers’
unions. These unions hold meetings to discuss their problems. They make demands to the officers of
the factory and at times may also organize a strike in the factory. Thus, the union protects the rights of
the workers. Similarly the right to move freely throughout the territory of India and to reside and settle in
any part of India may also be restricted in the interest of the general public or for the protection of the
interests of any Scheduled Tribe. The right to practice any profession or to carry on any occupation,
trade or business may have restrictions in the interests of the general public. The State is also
permitted to lay down the professional or technical qualifications necessary for practicing any
profession or carrying on any occupation, trade or business.
II. Article 20 of the Constitution provides for the protection in respect of conviction for offences. It
mentions that no one can be convicted for an act that was not an offence at the time of its commission,
and no one can be given punishment greater than what was provided in the law prevalent at the time of
its commission. Also, no one can be prosecuted and punished for the same offence more than once
(protection against double jeopardy) and can be forced to give witness against his or her own self.
III. Article 21 deals with the protection of life and personal liberty no one can be deprived of his or
her life or personal liberty except according to the procedure established by law. Every individual has a
right to live and a right to be free. This right is guaranteed in the Constitution as a fundamental right. It
is the responsibility of the government to protect the life of all individuals. When there is a threat to our
lives, for example in a riot or dacoity, the police have to provide protection. If the police fail to do so we
all have the right to fight against this in the court. The Parliament has recently passed a new addition to
the Constitution by way of an amendment whereby Art-21A has been added and it deals with the
fundamental right to education. It has made education for all children from the age of 6 to 14 a
fundamental right. This makes it necessary for the government to arrange for schools and for parents to
see to it that their children attend schools regularly. This right has been added because people feel that
all children should have the opportunity to study, learn about the world around them, acquire skills to
express themselves and make creative contributions to society and have more opportunities for their
future.
IV. Article 22 has conferred a very important fundamental right whereby the protection against
arrest and detention in certain cases is given. It is provided in Article 22 that whenever a person is
arrested, he or she should be informed, as soon as it is possible, of the grounds for arrest and should
be allowed to consult and to be defended by a legal practitioner of his or her choice. Moreover, the
arrested person must be produced before the nearest magistrate within 24 hours of such an arrest
excepting a person who has been arrested under preventive detention law.
 28

3.7 Right against Exploitation: Article 23-24

The citizens have been guaranteed the right against exploitation through Articles 23 and 24 of
the Constitution. The Traffic in human beings and begar and other similar forms of forced labour are
prohibited under Article 23 of the Indian constitution and any breach of this provision shall be an
offence punishable in accordance with law. Similarly Article 24 deals with the prohibition of employment
of children in factories, etc. As the Constitution provides, no child below the age of fourteen years shall
be employed to work in any factory or mine or engaged in any other hazardous employment. This right
aims at eliminating one of the most serious problems, child labour, that India has been facing since
ages.
3.8 Right to Freedom of Religion: Article 25-28
India is a multi-religion country, where Hindus, Muslims, Sikhs, Christians and many other
communities live together. The Indian Constitution has declared India as a ‘secular state’. It means that
Indian State has no religion of its own. But it allows full freedom to all the citizens to have faith in any
religion and to worship, the way they like. But this should not interfere with the religious beliefs and
ways of worship of other fellow beings. This freedom is available to the foreigners as well. In respect of
the Right to freedom the Constitution makes the following four provisions under Articles 25-28:
1. Freedom of conscience practice and propagation of religion: Article 25
The right of freedom to all persons is provided under Article 25 of the Indian Constitution
whereby they are equally entitled to freedom of conscience and the right to profess practice and
propagate religion freely. But it does not mean that one can force another person to convert his/her
religion by force or allurement. The religious practices such as sacrificing animals or human beings, for
offering to gods and goddesses or to some supernatural forces are not-permissible. Similarly, the law
does not permit a widow to get cremated live with her dead husband (voluntarily or forcibly) in the name
of Sati Pratha. Forcing the widowed woman not to marry for a second time or to shave her head or to
make her wear white clothes are some other social evils being practiced in the name of religion.
However, the State also has the power to regulate any economic, financial, political or other secular
activities related to religion. The State can also impose restrictions on this right on the grounds of public
order, morality and health.
2. Freedom to manage religious affairs: Article 26
Article 26 of the Indian constitution confers the following rights on every religious group or any
section but it is subject to public order, morality and health. The every religious group or any section
thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes
(b) to manage its own affairs in matters of religion
(c) to own and acquire movable and immovable property and
(d) to administer such property in accordance with law.

3. Freedom as to the payment of taxes for promotion of any particular religion: Article 27
 29

No person shall be compelled to pay any tax, the proceeds of which are specifically used in
payment of expenses the incurred on the promotion or maintenance of any particular religion or
religious sect.
4. Freedom as to attendance at religious instruction or religious worship in certain
educational institutions: Article 28
Article 28 provides that no religious instruction shall be provided in any educational institution
wholly maintained out of State funds. However, it will not apply to an educational institution which is
administered by the State but has been established under any trust which requires that religious
instruction shall be imparted in such an institution. But no person attending such an institution shall be
compelled to take part in any religious instruction that may be imparted there or attend any religious
worship that may be conducted there. In case of a minor, the consent of his/her guardian is essential
for attending such activities.

Self Assessment Questions:

1. Write a short note on :
— Right to equality
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
— Right to speech and expression
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
— Right to life
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

3.9 Right to Culture and Education: Article 29-30

The Constitution of India guarantees cultural and educational rights for all section of people
irrespective of their religious, racial and cultural diversities. These rights are non-political in real sense.
To reserve religious and cultural interest of each community, the Constitution of India incorporated
these cultural and educational rights under Article 29 and Article 30. Article 29 guarantees to every
minority or section of the people to preserve its language, script and culture notwithstanding the
provisions of Article-343 under which the official language of the union shall Hindi in Devanagari script.
The state shall not impose upon any minority group any culture other than the community’s own culture
Article 29(1). Clause (2) of Article 29 provides that no citizen may be denied admission to State and
State aided educational institutions on the grounds only of religion, race, caste or language. Article 30
provides that all communities shall have the right to establish and administer educational Institutions of
its choice and the state shall not discriminate against them in making grants on grounds of religion,
 30

race or language. There is implicit in the right conferred by Article 30 (1), the right to impart instruction
in their own institutions to the children of their own community in their own language.
This right has also some limitations. The State can regulate its affairs in the interest of efficiency
of instruction, discipline, morality and public order.
3.10 Constitutional Remedies: Article 32
A right without remedy is a meaningless formality. Indian Constitution enumerates various rights
to its citizen and in order to make these rights effective, it includes some means or remedies in the form
of the Right to Constitutional Remedies under Article 32. Article 32 guarantees to every citizen the right
to move the Supreme Court or High Courts for enforcement of Fundamental Rights by Constitutional
means. Both the Supreme Court under Article 32 and the High Courts under Article 226 can issue
necessary writs for the purpose. When a citizen feels that his Fundamental Rights have been violated,
he can move the court for redressal. The Supreme Court under Article 32, and High court under Article
226 may issue to safeguard the Fundamental Rights in the nature of habeas corpus, mandamus,
prohibition, quo-warranto and certiorari. These are some instruments and means to make Fundamental
Rights more effective. The courts have the power to enforce Fundamental Rights by issuing these writs
against any authority of the State. The Indian Constitution lays down that any act of the executive or of
the legislature which violates Fundamental Rights shall be void and the courts are empowered to
declare it as void (Art. 13). Thus, the Constitution of India has made the judiciary as “the protector and
guarantor of Fundamental Rights”. On the other hand, this Constitutional right is the “heart and soul” of
the Constitution as it can only make Fundamental Rights effective.
However the right to move the court for protection of Fundamental Rights may be suspended
during an emergency except those rights provided by Article 20 and Article 21.
In simple terms as the Fundamental Rights are justiciable in nature and they are just like
guarantees. They are enforceable, as every individual has the right to seek the help from courts, if they
are violated. But in reality it is not so. Encroachment or violation of Fundamental Right in our day to day
life is a matter of great concern. Which is why, our Constitution does not permit the legislature and the
executive to curb these rights. It provides legal remedies for the protection of our Fundamental Rights.
This is called the Right to Constitutional Remedies stipulated in Article 32. When any of our rights are
violated, we can approach the court of law and seek justice. We can directly approach the Supreme
Court that can issue directions, orders or writs for the enforcement of Fundamental Rights.
3.11 Universal Declaration of Human Rights: It’s Influence on Fundamental Rights in
Indian constitution:
The General Assembly of the United Nations adopted several types of Human Rights in 1948
and enshrined them in Universal Declaration of Human Rights. A number of the Human Rights have
been given place as Fundamental Rights in the Indian Constitution so that their implementation may
become a legal duty of the government. The Human Rights which could not find place under the
Fundamental Rights, have been taken care of under Directive Principles of State Policy.
The Constitution of India, which is the largest and lengthiest constitution of the World, has
often been accused of being a combination or rather a mixture of the provisions of other Constitution of
the world. It is seen as a incorporation which is based upon the foundations, tested and verified, of
other nations for providing the Indians with a Constitution, which would cover each and every aspect of
life, every problem of the hour, as at the time of the commencement of the Constitution and to provide a
base or a platform for the generations to come and grow on. The framers of the Constitution, covered a
variety of aspects, incorporated a variety of aspects and gave shape to various powers and duties,
 31

along with the mandated functions of the three organs of Governance, namely the Legislature,
Executive and the Judiciary.
Human rights go hand in hand with responsibilities. Human rights are universal, fundamental
and absolute. They are termed as universal because they belong to all humans everywhere. They are
fundamental because they are inalienable, absolute because they are basic to a real living. It is
interesting to note that the Human Rights are taken into two categories by the adoption of two separate
International Covenants. The Rights conceived by the Universal Declaration as an integrated whole,
were thus split into two classes. But however, the differences in the two categories of Rights are not
fundamental in nature and the so constructed dichotomy. The Indian Constitution acts upon this
synthesis and Philosophy and describes in Part III and Part IV, both classes of Human rights as
“fundamental.”
It is true that the historical struggle for political freedom in India had made a declaration of
Fundamental Rights inevitable. At this stage the significant question which arises is ‘What influence did
the Universal Declaration of Human Rights have on the Indian Constitution?’ In an attempt to find the
answer and going to the history of making of the Indian Constitution, it is found that the Universal
Declaration of Human Rights, which the United Nation Organization, adopted on 10th December 1948,
enumerates various Civil, Political, Cultural, Economic and Social Rights. The Universal Declaration
had a great impact on the philosophy and ideology of the Constitution framers, while the Constitution of
India was in the making at that time. Many similar rights were incorporated in our Constitution under the
headings Fundamental Rights and Directive Principles of the State Policy in Chapter III and IV
respectively and these rights have a great significance for the Indian people as they have enabled
every citizen of India to live freely and honorably. A human being gets full freedom to develop himself
mentally and physically. The Universal Declaration of Human Rights promulgated by the United
Nations, to which India was a party, proclaimed basic human rights, although it did not provide for any
machinery for its enforcement. Thus viewed from the Indian standpoint, Human Rights have been
synthesized, as it were, not as an integrated fabric by the preambular promises and various
constitutional clauses of the Universal Declaration of Human Rights. To illustrate the said proposition,
one fine example is of the Fundamental Rights as enacted in our Constitution not only recognize the
dignity of the individual to which the Preamble refers, but also recognize their necessity for the full
development of the individual and for preserving the unity of India.
The Universal Declaration of Human Rights is binding upon India, since it is a signatory to the
said declaration. The very basis of this declaration is that the interest of one part of the world is bound
up with the interests of human beings as a whole in every other part of the world. As Dr. Martin Luther
King says, injustice anywhere is bound to lead injustice everywhere. Pains and troubles of one part of
the human family may be religious or otherwise, cause the pain and trouble to the rest of the human
family. This is fundamental concept underlying making of binding declarations and conventions in which
the nations of the world have joined.
In fact, the Indian Declaration at the Round Table Conference had pressed for the enactment
of Fundamental Rights in the Constitution which, it was expected the British Parliament would pass.
India adopted its Republican Constitution in 1950 and included a special part on Fundamental Rights.
The Universal Declaration of Human Rights adopted and proclaimed by the General Assembly of the
United Nations on the 10th of December 1948 is indeed one of the precious events in the ongoing
march of mankind in the direction of refining civilization. A standard code of Human Rights for the entire
homo sapiens race was made applicable to the whole globe and it was what mankind had been striving
over for centuries. Now what is understood is that ‘the premises for the Universal Declaration is that the
entire mankind is treated as one member of one human family, the rights are inalienable and are
 32

considered on the foundation of freedom, justice and peace. The dignity of the human person is
acclaimed and men and women with equal rights are indeed to march ahead for the promotion of social
progress and for the better standards of life and environment of such freedom.
It is important to highlight the words of Prof. Upendra Baxi, who holds that ‘I take it as
axiomatic that the historic mission of the contemporary human rights is to give voice to human suffering
to make it visible and to ameliorate it. Laying down the very basis of the Human Rights, the
commendable author goes on to continue that ‘the ethics of human rights emerges as a tradition of
critical morality by which the positive morality of human rights practices themselves may be judged.
Respect towards the other as a co-equal human is a groundwork of an ethic of human rights, furnishing
universal valid norms for human conduct and the basic structure of a society. Every societal culture
encapsulates beliefs, sentiments, symbols that impart sense to the notion of being human, no matter in
how many different registers of inclusivity. These societal human rights cultures relate to global cultures
of human rights. They are shaped by the golden cultures and in turn shape them.
Furthermore, the fundamental duties enshrined in the Constitution of India, were added by way
of an amendment, contained in Part IV A, and are in consonance with Article 29 (1) of the Universal
Declaration of Human Rights, which says, everyone has duties to the community in which alone the
free and full development of his personality is possible. ‘We must reaffirm faith in recognition of the
inherent dignity and inalienable rights of all citizens as the foundation of freedom, justice and peace in
the world, which implies obligations and responsibilities.’
Fundamental Duties:
When the Constitution came into force in 1950, no Fundamental Duties were enshrined in the
Constitution of India. By the 42nd Amendment to the Constitution of India in 1976, ten Fundamental
Duties have been added to our Constitution. These duties are important and necessary for the vital
interest of our country. These Fundamental Duties are covered by Article 51 A incorporated in a new
chapter, Part IV-A of the Constitution. Under this Article, it shall be the duty of every citizen of India –
i. To abide by the Constitution and respect the National Flag and the National Anthem
ii. To cherish and follow the noble ideals which inspired our national struggle for freedom
iii. To protect the sovereignty, unity and integrity of India
iv. To defend the country
v. To promote the spirit of common brotherhood amongst all the people of India
vi. To preserve the rich heritage of our composite culture
vii. To protect and improve the natural environment
viii. To develop the scientific temper and spirit of inquiry
ix. To safeguard public property
x. To strive towards excellence in all spheres of individual and collective activity
xi. To provide opportunities for education by the parent the guardian, to his child, or a ward
between the age of 6-14 years as the case may be.(This fundamental duty was added by
way of 86th Amendment,2002)
The fundamental duties are inspired by the constitution of former Soviet Union. Fundamental
Duties are like some noble advice of which some are civic duties and others are moral duties. They are
 33

not legally binding upon the citizens and even the courts cannot enforce them. So, Fundamental Duties
are not enforceable by the courts of our country. No one can be punished if he/she does not perform
his/her duties. Though there is no legal force behind these duties, yet they are integral part to the
Constitution of India. These duties have moral impact and educative value upon the citizens. Therefore
people obey these duties on moral obligation for welfare of the people. After all inclusion of
Fundamental Duties in the Constitution is considered necessary towards progress, peace and
prosperity of the country.
Though there is no provision in the Constitution for direct enforcement of any of these duties nor
for any sanction to prevent their violation, yet some Fundamental Duties are enforceable by the courts
of the country. Duties like abide by the Constitution, respect the National Flag and the National Anthem,
to defend the country and render National service when called upon to do so and safeguard public
property etc. fall in this category and the courts can enforce them if it find reasonable relation with laws
of the country. But there are some inherent draw backs of these Fundamental Duties. Actually
Fundamental Duties are not binding upon the citizen. Duties inscribed in the Constitution are not
exhaustive, while some duties are ambiguous. So, common people could not understand them. Yet
these duties are important for National interest of our country. These duties have sanctity of its own.
Besides these duties have moral and educative value upon citizen of our country. People fells that for
proper enjoyment of rights, duties must be performed in a well manner. Because rights and duties are
related to each other. Every right implies a corresponding duty towards individual and social welfare.
Rights cannot be separated from duties and vice-versa. Therefore, both rights and duties are important
for the prosperity of the country in a similar manner.
3.12 Summary
Dr. Ambedkar made an accurate assessment when he observed. "Constitutional morality is not
a natural sentiment, it is to be cultivated." We must realize that our people have to learn it. It is a
tragedy that even though nearly six decades have elapsed since we gave ourselves a Constitution, we
have not yet understood the meaning of Constitutional morality. Let us start the learning process let us
demand Rule of Law i.e. the law rules, no one is above the law. Law is supreme, our constitution is
supreme. In ancient times the equivalent of to-days rule of law was called Dharma. It had nothing to do
with religion. It meant sincerity and faithful performance of one's duty.
3.13 References
 Basu, Durga Das (1988). Shorter constitution of India. New Delhi: Prentice Hall of India..
 Basu, Durga Das (1993). Introduction to the constitution of India. New Delhi: Prentice Hall of
India..
 "Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69".
 Chiranjivi, Nirmal J., Human Rights in India, 43, (New Delhi: Oxford University Press, 2nd
ed., 2000
 The Kesavananda Case of 1973, famously known as the "Fundamental Rights case", the
Supreme Court decided that the basic structure of the Constitution of India was
unamendable.
 Laski, Harold Joseph (1930). Liberty in the Modern State. New York and London: Harpers
and Brothers..
 Sen, Shanker, Human Rights in a Developing Society, 26, (New Delhi: APH Publishing
Corporation, 1998)
 34

 Kulshereshtha, V.D., Landmarks in Indian Legal and Constitutional History, 350, (Lucknow:
Eastern Book Company, 7th edition, 1997)
Important Case Laws:
 Satwant Singh Sawhney vs. Asst.Passport Officer,Government of India,AIR 1967 SC 1836
 I.C.Golak Nath vs State of Punjab AIR 1967 SC 1643
 Keshvananda Bharti vs State of Kerala AIR 1973 SC
 Prem Shankar Shukla vs Delhi Administration AIR 1980 SC 1535
 S.P.Mittal vs Union of India AIR 1982 SC 149
 Mohini Jain vs State of Karnatka AIR 1992 SC 1858
 D.K Basu vs State of West Bengal (1997)1 SCC 416
3.14 Further Readings:
1. H.O. Aggarwal, International Law and Human Rights (Central Law Publication, Allahabad),
2012.
2. Shankar Sen, Human Rights in a Developing Society (APH Publishing Corporation, 1998)
3.15 Model Questions:
1. Write a comprehensive note on rights enumerated in Indian Constitution with respect to
religion.
2. What do you understand by ‘Fundamental Duties’? Are the fundamental duties so engrained
in Indian Constitution enforceable in nature?

******
 35

Lesson-4

UNIT II
DIRECTIVE PRINCIPLES OF STATE POLICY2

Structure
4.0 Objectives
4.1 Introduction
4.2 Meaning of Directive Principles of State Policy
4.3 Sources of the Directive Principles of State Policy
4.4 Object of Directive Principles of State Policy
4.5 Features of Directive Principles of State Policy
4.6 Classification
(i) Socialist Directives
(ii) Gandhian Directives
(iii) Liberal Intellectual Directives
(iv) Miscellaneous Principles
A. Principles related to the establishment of a welfare state
B. Principles related to social and educational upliftment
C. Directive Principles pertaining to administrative matters
4.7 Directives in other parts of the Constitution (Except part IV)
4.8 Significance of Directive Principles of State Policy
4.9 Implementation of Directive Principles
4.10 Directives Principles vs. Fundamental Rights
4.11 Role of Judiciary
4.12 Amendment of the Directive Principles of State Policy
4.13 Summary
4.14 References
4.15 Further Readings
4.16 Model Questions

4.0 Objectives:
 36

The objective of this chapter is:

 To understand the meaning, features and various types of Directive Principles.
 To see the significance and importance of Directive Principles.
 To evaluate the implementation of Directive Principles in India.
4.1 Introduction:
India is a welfare state. There are a number of other nations in the world, which are also
described as welfare states. Why are they called so and others are not? What is the meaning of the
term, welfare state? It is a concept of government in which the state plays a key role in the protection
and promotion of economic and social well-being of its citizens. A welfare state is based on the
principles of equality of opportunity and equitable distribution of wealth.
It also focuses on the governmental responsibility for those who are unable to avail themselves of the
minimal provisions of a good life. Under this system, the welfare of its citizens is the responsibility of the
state.
When India attained independence, it had innumerable problems and challenges. The social
and economic inequality was all pervasive. Economically, India’s situation was miserable. Socially also
India was having a number of problems. There were social inequalities and all the vulnerable sections
of the society such as women, dalits, children were deprived of basic means of living. The Constitution
makers were very much aware of the problems. That is why, they decided that India would be a welfare
state. India is also described as a “sovereign socialist secular democratic republic” in the Preamble of
the Indian Constitution. Accordingly, the Constitution has extensive provisions to ensure social and
economic welfare of the people of India. In this regard two specific provisions have been made, one in
the form of Fundamental Rights and the other as Directive Principles of State Policy.
“These Principles are not better than new year promises and resolution which are broken
on the second day of January”.
Mr. Nassiruddin
Directive Principles of State Policy are in the form of guidelines to the governments at the center
as well as states. Though these principles are non-justiciable, they are fundamental in the governance
of the country. The idea of Directive Principles of State Policy has been taken from the Irish Republic.
They were incorporated in our Constitution in order to provide economic justice and to avoid
concentration of wealth in the hands of a few people. Therefore, no government can afford to ignore
them. They are in fact, the directives to the future governments to incorporate them in the decisions and
policies to be formulated by them.
The directive principles are contained in part fourth of the Indian constitution but cannot be
claimed as a matter of right by the citizens of India i.e. cannot be enforced in a court of law but the
essence of these principles is taken as being elementary for governing the country and hence a duty
has been imposed on the states to consider these principles while framing any laws so as to build a
society which believes in promoting equality and justice. These principles are basically an inspiration
taken from the Irish constitution and Gandian philosophy and they aim at to promote social fairness,
economic benefits, foreign policies and strong legal and administrative management.
In Indian Constitution along with the list of Fundamental rights, the Directive Principle of State
Policy is the conscience of the Constitution. The goals of the human rights can be read from the
Preamble as a Political, social, economic and Cultural Revolution that the people of India have
 37

committed themselves to. The Economic, Social and Cultural Rights enshrined in the Universal
Declaration of Human Rights and also in the Covenant on Economic, Social and Cultural Rights are
included in Part IV of the Indian Constitution and are known as the Directive Principle of State Policy.
The Constitution there in directs the State to provide adequate means of livelihood, equitable
distribution of material resources, equal pay for equal work, a living wage for all workers, just and
human conditions of work, unemployment cover for all people in old age and sickness, and free and
compulsory education for children.
It is apparent that the fundamental rights provided in the Indian Constitution are primarily
political rights. The Constitution makers were well aware that even if all the fundamental rights are truly
enforced, the goals of Indian democracy would not be realized unless the people of India could avail of
social and economic rights. However, they were also alive to the limitations of the abilities of Indian
state which attained independence after centuries of foreign rule and was at a low level of socio-
economic development. In that situation, if the economic and social rights had been included in the list
of fundamental rights, the Indian state would have failed to enforce these rights because of its own
limitations. But at the same time, these rights needed to be given special importance. This was done by
including a separate Chapter as Part-IV known as the Directive Principles of State Policy in the
Constitution.
4.2 Meaning of Directive Principles of State Policy:
Directive Principles of State Policy are in the form of instructions/guidelines to the governments
at the center as well as states. Though these principles are non-justifiable, they are fundamental in the
governance of the country. The idea of Directive Principles of State Policy has been taken from the Irish
Republic. They were incorporated in our Constitution in order to provide economic justice and to avoid
concentration of wealth in the hands of a few people. Therefore, no government can afford to ignore
them. They are in fact, the directives to the future governments to incorporate them in the decisions and
policies to be formulated by them.2
4.3 Sources of the Directive Principles of State Policy:
The fundamental rights and the directive principles of state policy are of common origin. The
Nehru Report of 1928 had contained a Swaraj Constitution of India which incorporated some
fundamental rights. These also included some rights as right to education.3
The Framers of the constitution were influenced by the Irish Constitution of 1937 to add a
chapter on Directive Principles of State Policy (DPSP). The Constitution of Ireland which is called
Bunreacht na hÉireann in Irish came into force in 1937 and it replaced the Free State Constitution of
1922. Article 45 of the Constitution of Ireland details the “Directive Principles of State Policy”. However,
Directive Principles of State Policy were not original idea of the framers of the Irish Constitution even.
They borrowed it from the Spanish Constitution. It is also important to note that the Instruments of
Instructions under the Government of India Act 1935 was also an immediate source of the Directive
Principles of State Policy. However the basic difference was that the Instruments of Instructions directs
the executive while the Directive Principles of State Policy direct to the “State” as defined in Article 12
of the Constitution of India.

4.4 Objective of Directive Principles:

 38

Directive principles have been included in the Constitution of India for the socio-economic
development of the people. The object is to provide guidelines to the government in framing the
policies. Directive principles are non-justifiable and cannot be enforced by any court of law. These
principles are considered fundamental in the governance of the country, making it the duty of the
central and state governments to apply these principles in making laws to establish a just society in the
country.
4.5 Features of Directive Principles of State Policy:
 Articles 36 to 51 deal with the provisions of the Directive Principles which are contained in
Part IV of the Constitution. This novel feature of the Constitution has been adopted from the
Constitution of the Ireland.
 This concept is the latest development in the Constitutional Governments throughout the
world, with the growing acceptance of a ‘Welfare State’.
 The Directive Principles of the Constitution of India are a unique blend of Socialism,
Gandhism, Western liberalism, and the ideals of the Indian freedom movement.
 They are in the nature of directions or instructions to the State. Article 36 clearly directs the
State to secure and protect a social order which stands for the welfare of the people.
 Article 37 says that Directive Principles are not justiciable but are fundamental to the
Governance of the Country, and the State has the duty in applying the Directive Principles of
State Policies (DPSPs). If they are not acted upon by the State, no one can move the
Courts. The reason for making the DPSPs explicitly unjusticiable are that they require
resources which the State may not have at present.
 The state is to direct its policy for equitable distribution of wealth or the socialist pattern of
society and equal pay for equal work for both men and women.
 The directive principles deals with the provision of adequate means of livelihood to all its
citizens, men and women, provision of employment to all, free and compulsory education for
children, living wage for workers, protection of childhood and youth against exploitation and
against moral and material abandonment, prohibition of the consumption except for medical
purposes of intoxicating drinks and of drugs injurious to health.
4.6 Classification:
The directive principles stated in the Constitution are of different types. Some are concerned
with socio-economic development, some are related to Gandhian thought and some to foreign policy.
The Constitution does not classify them under different heads, but for our better understanding, we may
classify them under the following specific categories:
1. Socialist Directives
2. Gandhian Directives
3. Liberal Intellectual Directives
4. Miscellaneous Principles.

(i) Socialist Directives:

 39

Art. 38(1) provides that the State shall promote the welfare of the people by securing and
protecting as it may a social order in which justice – social, economic, and political shall inform all the
institutions of national life. The State shall strive to minimize the inequalities in income and try to
eliminate inequalities in status, facilities and opportunities among individuals and groups engaged in
different vocations within the country (Art.38).
The state shall make an effort to attain Social and Economic wellbeing of the people by:
(1) Providing sufficient means of livelihood for both men and women.
(2) Managing the economic system in a way to avoid concentration of wealth in few hands.
(3) Securing equal pay for equal work for both men and women.
(4) Securing apposite employment and hale and hearty working conditions for men, women
and children
(5) Protecting the children against abuse and moral deprivation.
(6) Formulating efficient provisions for securing the right to work, education and public
Support in case of unemployment, old age, sickness and disablement.
(7) Building provisions for ensuring just and humane conditions of work and for maternity
relief.
(8) Taking measures to secure the contribution of workers in the management of undertakings
etc.
(9) Facilitating education and economic interests of working sections of the people especially
the SCs and STs.
(10) Ensuring for all the workers rational freedom and cultural opportunities.
(11) Putting labours to raise the standard of living and public health.
(12) Securing early childhood care and education to all children of age in between 6 to 14.
The Socialist Principles are enumerated as follows:
Article 38: To secure a social order for the promotion of welfare of the people.
Article 39: To strive to minimize inequalities of income.
Article 39 (b): Ownership and control of material resources of the community shall be so distributed so
as to subserve the common good.
Article 39 (d): Equal pay for equal work.
Article 39 (e): Health and strength of workers, and the tender age of children must not be abused.
Article 39a: Equal justice and free legal aid.
Article 42: Provision of just and humane conditions for work and maternity relief.
Article 43 A: Participation of workers in the management of the industries.
(ii) Gandhian Directives:
Gandhian thinking promotes a non-violent social order. Swaraj (Self-rule),Sarvodaya
 40

(Welfare for all) and svavlambam (self-reliance) are the basic principles of Gandhian thought. Mahatma
Gandhi was in the forefront of freedom movement. His philosophy and actions guided not only our
freedom movement but also the framing of the Indian Constitution.
There are some principles, based on the morals propounded by Mahatma Gandhi. These Principles are
as follows:
Article 40: Organization of Village Panchayats.
Article 43: To promote cottage industry.
Article 46: Promotion of educational and economic interests of the SCs, the STs and the other weaker
sections of the society.
Article 47: To bring about the prohibition of intoxicating drinks and drugs that is injurious to health.
Article 48: Organization of agriculture and animal husbandry on modern and scientific lines to prohibit
the slaughter of cows, calves and other milch and draught animals.
These principles enjoined under Gandhian principles in Article 40, Article 43, Article 47 and
Article 48 are some ideals of Mahatma Gandhi followed during his life time. Our constitution framers
wanted to implement these ideals to fulfill his dream.
(iii) Liberal Intellectual Directives:
The Constitution makers included some principles which provide guidelines to our foreign policy. These
are:
1. The state shall promote international peace and security.
2. The state shall endeavor to maintain just and honorable relations with other nations.
3. The state shall foster respect for international laws and treaty obligations.
4. The state shall encourage settlement of international disputes by arbitration, i.e. mutual
agreement.
Following are some of the directive principles of the state policy that are included in our
Constitution:
A. Principles related to the establishment of a welfare state
B. Principles related to social and educational upliftment
C. Directive Principles pertaining to administrative matters
D. Miscellaneous:
The Directive Principles in this category call upon the state: -
1. To secure for all Indians a uniform civil code.
2. To protect historical monuments.
3. To save environment from pollution and protect wild life.
4. To make arrangements for disbursement of free legal justice through suitable
Legislations

4.7 Directives in other parts of the Constitution (Except part IV)

 41

Article 350 A: It enjoins every State and every local authority within the State to provide
adequate facilities for the instructions in the mother tongue at the primary stage to children of linguistic
minority areas.
Article 351: It enjoins the Union to promote the spread of Hindi Language so that it may serve
as a medium of expression of all the elements of the composite culture of India.
Article 335: It says that the claims of SC/ST shall be taken into consideration, consistently with
the maintenance of efficiency of administration, in the making of appointments to services and posts in
connection with affairs of the Union or of a State.
4.8 Significance of Directive Principles of State Policy:
The directive principles place an ideal before the legislator of India which shows that light while
they frame the policies and laws. They are basically a code of conduct for the legislature and
administrators of the country. The show the path to the leaders of the country which takes the country to
achieve the ideal of the constitution embodied in the Preamble “Justice, Social, Economic, Political;
liberty, equality and fraternity”.
The members in the Constituent Assembly opined that the directive principles are superfluous
or mere guidelines or pious principles or instructions. They have no binding force on the State. In his
speech Dr. Ambedkar answered “The directive principles are like instruments of instructions which
were issued to the Governor in General and Governors of colonies and to those of India by the British
Government under the 1935 Act under the Draft Constitution. It is proposed to issue such instructions
to the president and governors. The text of these instruments of the instructions shall be found in
scheduled IV to the Constitution of India. What are called directive principles is that they are
instructions to the Legislature and the Executive. Such a thing is, to my mind, to be welcomed.
Wherever there is grant or power in general terms for peace, order and good government that it is
necessary that it should be accompanied by the instructions regulating its exercise." It was never
intended by Dr. Ambedkar that the Directive Principles had no legal force but had moral effect while
educating members of the Government and the legislature, nor can it be said that the answer referred
to necessarily imply with the Directive Principles had no legal force.
Their significance can be summarized as follows:
a) Since the Government is answerable to the people, the Directive Principles act as a sign
post to all succeeding Governments.
b) The Directive Principles provide the yardstick for assessing the successes or failures of
these Governments.
c) Help in deciding constitutional validity of some of the enactments made by legislature.
As Dr. B. R. Ambedkar pointed out “The Directive Principles do not merely represent temporary
will of a majority in the constituent assembly but they represent deliberate wisdom of country expressed
through constituent assembly”.
4.9 Implementation of Directive Principles:
The State has put in many efforts to implement the Directive Principles. The Programme of
Universalization of Elementary Education and the five year plans have been given the top most priority
in order to grant free education to all children up to the age of 14 years. In furtherance of that a new
Article 21-A was inserted in the constitution by the 86th Amendment which makes it mandatory to
provide free education to all children in the age group of 6 to 14 years .Both Central and state
 42

Governments are have taken steps to implement welfare schemes for the weaker sections of society.
For instance a lot of boys and girls hostels have been and are being constructed for schedule casts and
schedule tribes. The students belonging to SC and ST who are pursuing medical, engineering and
other professional course get free books from government. IN 2002-03, Government released a sum of
4.77 crore for the educational necessities of Schedule castes and schedule tribes. Schedule castes and
schedule tribes being weak both financially and educationally, they suffered from lot of atrocities and in
order to curb those atrocities Government enacted the prevention of Atrocities Act of 1995.
There was considerable reformation in Land related issues. Many Land reform legislations were
enacted in order to provide land to farmers. Approximately 20,000000 acres of land was disbursed in
the year 2001 so as to provide land to schedule castes, schedule tribes and landless people. At the
same time the banking facilities are being made more convenient and easy so as to make them
expedient and handy especially in rural areas. The various social legislations were enacted which
greatly influenced the lives of common and poor people .e.g. The Minimum Wages Act of 1948
authorizes government to fix minimum wages for employees affianced in various employments. The
Consumer Protection Act of 1986 ensures for the better protection of consumers. The act is proposed
to provide simple, prompt and economical remedies to the consumers' gripes, prize relief and
compensation wherever apposite to the consumer. There was a time when women did not have those
rights as were enjoyed by men, the women worked equally hard as men did but got less remuneration
than men and in order to curb this the Government came up with a very important legislation, The
Equal Remuneration Act of 1976 which provided equal pay for equal work for both men and women.
The Sampoorna Grameen Rozgar Yojana was initiated in 2001 to achieve the purpose of lucrative
employment for the rural poor. The programme was put into practice through the Panchayati Raj

Self Assessment Questions:

1. Write a note on Socialist Directives.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2. What is the objective of Directive Principles?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
institutions.

Now almost all the states and union territories have Panchayati Raj and the most important fact
is that One-third of the total number of seats have been reserved for women in Panchayats at every
level in the case of Bihar, half the seats have been reserved for women. Another notable step is that it
is mandatory for the state to provide free legal aid to persons who are not in a position to engage a
lawyer and this has been done especially in criminal cases. Again in order to achieve transparency in
decision making the judicial and executive wings have been separated I all the states except Jammu
and Kashmir and Nagaland. This has greatly increased the effective functioning of both the wings.
Besides all these improvements DPSP‘S have also influenced the Foreign policies of India. India has in
the past greatly condemned all acts of aggression and terrorism and has also backed up the peace
 43

making steps of United Nations. By 2004, the Indian Army had participated in 37 UN peace-keeping
operations. India played a vital role in the passing of a UN resolution in 2003, which seek to achieve
better collaboration between the Security Council and the troop-contributing countries. Apart from this
India has remarkably favoured the nuclear disarmament.
Further some of the implemented principles are:
a. Equal wages for equal work for both men and women have been enacted.
b. Various programmes have been launched to boost rural employment. Mahatma
c. Gandhi National Rural Employment Guarantee Act (MGNREGA) and Swaran
Jayanti Gram Swarojgar Yozna is the examples.
d. Panchayati Raj has been given constitutional status.
e. The objective of universalization of the elementary education was in the development
programmes. After the 86th amendment act which inserted Article 21A in the
constitution, the state seeks to provide free and compulsory education to all children
between 6-14 years and the Right to Education Act was passed in 2009 to make it a
fundamental right.
f. Many laws have been passed to protect children from exploitation.
g. A number of welfare schemes have been implemented for the poor and backward
classes and also for scheduled castes and scheduled tribes. Seats have been reserved
for them in the Parliament and Vidhan Sabhas.
h. Several laws and welfare schemes have been launched to protect women from
exploitation.
i. The forty second constitutional amendment added a Directive principle, which ensures
Protection and improvement of environment and safeguarding of forests and wild life. A
number of programmes like Save the Tiger project
Rhino, elephant etc. are being implemented in pursuance of the newly added
directive principle. Judiciary has been separated from the executive.
j. Cottage industries have been established and protected by giving tax concessions.
k. To enhance the nutritional level of the children and adolescent girls a lot of programmes
have been launched such as Mid-day meal scheme, ICDS, SABLA etc.
l. Our foreign policy is in consonance with the principles of international peace
and security, and maintaining just and honorable relations between nations.
m. The Government of India supports and works for world peace.
4.10 Directives Principles vs. Fundamental Rights
Fundamental Rights and Directive Principles of State Policy, which are playing an important role
in the establishment of the political and socio-economic society in India. The Fundamental Rights are
claims of the citizens recognized by the state. They are in the nature of denial of certain authority to the
government. They are, therefore, negative in nature. The Directive Principles are like positive directions
that the government at all levels must follow to contribute to the establishment social and economic
democracy in India.
 44

Another point of difference as mentioned earlier is that while the Fundamental Rights are
justifiable and are enforceable by the court of law, the Directive Principles are non-justiciable. In other
words, the Supreme Court and the High Courts have the powers to issue orders or writs for
enforcement of Fundamental Rights.
The Fundamental Rights are meant for the citizen while Directive Principles of State Policy are
meant for the State. They are some socio-economic instructions for the establishment of a welfare
State. The Fundamental Rights are individualistic and meant for individual citizens. On the other hand,
Directive Principles of State Policy are socialistic in nature and want to establish equality and justice in
the society. The Fundamental Rights are automatically enforced. While Directive Principles, on the
other hand, need legislation for their proper implementation so long as there is no law carrying out the
policy laid down in the Directive Principles. Fundamental Rights are not absolute and citizens are
subject to reasonable restrictions. On the other hand, Directive Principles are not subject to any
constitutional limitations. Based on political will the government may or may not implement them.
Further differences are discussed below:
 The fundamental rights constitute a set of negative injunctions. The state is restrained from
doing something’s. The directives on the other hand are a set of positive directions. The state is
urged to do something to transform India into a social and economic democracy. As Gladhill
observes, Fundamental Rights are injunctions to prohibit the government from doing certain
things, the Directive principles are affirmative instructions to the government to do certain
things.
 Secondly, the Directives are non-justiciable. Courts do not enforce them. A directive may be
made enforceable by the courts only when there is a lam on it. Fundamental rights, on the other
hand are justifiable. They impose legal obligations on the state as well as on individuals. Courts
enforce them. If a law violates a fundamental right, the law in question will be declared void. But
no law will be declared unconstitutional on the ground that it violates a directive principle against
violation of a fundamental right, constitutional remedy under Art. 32 are available which not the
case is when a directive is violated either by the state or, by individual. For this reason Prof K. T.
Shah deprecates the Directive Principles as “Pious wishes” or a mere window dressing for the
social revolution of the country.
The Directive Principles of State Policy, on the other hand, confer no legal rights and create no
legal remedies. This should not lead us to conclude that the Directive Principles are inferior or
subordinate to the Fundamental Rights.
Whenever conflicts arise between fundamental rights and directive principles, fundamental
rights prevail over the directive principles because, in terms of Arts. 32 and 226, fundamental rights are
enforceable by the courts. If a law is in conflict with a fundamental right, it is declared void by the
Supreme Court. But no law can be declared void on the ground that it is violative of a directive principle.
In 1951, in Champakam Dorairajan vs. the state of Madras, the Supreme Court held “The chapter on
Fundamental Rights is sacrosanct and not liable to be abridged by any legislative or executive act. The
Directive Principles of State Policy have to conform and are subsidiary to the chapter on Fundamental
Rights.”
It is important to note that despite so many differences between two, Fundamental Rights and
Directive Principles are closely connected to each other. Both concepts constitute an indispensable
part of the Constitution and are fundamental for proper development of our country. They are
complimentary and supplementary to each other.
 45

4.11 Role of Judiciary:

The constitution framers inserted Directive principles in the constitution so that the state should
take endeavor towards making a welfare state. Though there has been a considerable improvement in
understanding the importance of Directive Principles of State Policy but still there is a long way to go
and it is the duty of judiciary to understand the essence of Directive Principles of State Policy. Moreover
the Judiciary has to give a harmonious construction while deciding a case involving both fundamental
rights and DPSP‘S so that the spirit of both is maintained and one is not overridden by other as was
done in a very celebrated case of Kesavananda Bharti v.State of Kerala ((1973) 4 SCC 225). Where
in the court held that there are rights which are inherent in humans because they are human beings.
Initially the apex Court was reluctant to recognize any of the directive principles as being enforceable in
the courts of law. In fact, it was held that ‘the directive principles have to conform to and run subsidiary
to the chapter on fundamental rights’. It was in the abovementioned case famously known as the
Fundamental Rights case the majority opinions of the Supreme Court of India reflected the view that
what is fundamental in the governance of the country cannot be less significant than what is significant
in the life of the individual. One of the judges constituting the majority in that case said. In building up a
just social order it is sometimes imperative that the fundamental rights should be subordinated to
directive principles. However, even here the Court has retained its power of judicial review to examine if
in fact the legislation under examination is intended to achieve the objective or article 39(b) and (c), and
where the legislation is an amendment to the Constitution, whether it violates the basic structure of the
Constitution. Likewise, courts have used Directive Principles of State Policy to uphold the constitutional
validity of statues that apparently impose restrictions on the fundamental rights under article 19
(freedom of speech, expression, association, residence, travel and to carry o business, trade or
profession) as long as they are stated to achieve the objective of the DPSP. The DPSPs are seen as
aids to interpret the Constitution and more specifically to provide the basis, scope and extent of the
content of fundamental right.
in Bandhua Mukti Morcha v. Union of India the issue of non-implementation of the law
abolishing the pernicious practice of bonded labour came for consideration. This was a PIL case in the
Supreme Court brought by an NGO highlighting the deplorable condition of bonded labourers in a
quarry in Haryana, not very far from the Supreme Court. The Court drew on the Directive Principles of
State Policy while giving extensive directions to the state government to enable it to discharge its
constitutional obligation towards the bonded labourers.
Article 45 of the Directive Principles of State Policy, which corresponds to article 13(1) of the
ICESCR, states that the State shall endeavor to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children until they
complete the age of fourteen years.‖ Thus, while the right of a child not to be engaged in perilous
industries was, by virtue of article 24, known to be a fundamental right, the child‘s right to education
was put into the Directive Principles of State Policy in part IV and delayed for a long period of ten years.
The question whether the right to education was a elementary right and enforceable as such
was responded by the Supreme Court in the affirmative in Mohini Jain v. State of Karnataka((1992) 3
SCC 666 ). The correctness of this decision was examined by a larger bench of five judges in
Unnikrishnan J.P. v. State of Andhra Pradesh((1993) 1 SCC 645).In this case there was a challenge, by
private medical and engineering colleges, to state legislation regulating the charging of capitation fees
from students seeking admission. The college management was seeking enforcement of their right to
business. The court expressly denied this claim and proceeded to examine the nature of the right to
education. The court refused to accept the non en-forcibility of the Directive Principles of State Policy.
 46

4.12 Amendment of the Directive Principles of State Policy:

The Directive Principles of State Policy are subject to amendments via Article 368 only.
4.13 Summary
Part IV of the constitution does not form an operative part of the constitution. The directives are
non-justifiable in character. The courts cannot compel the governments to enforce the directives. But if
there is no judicial sanction behind the directives, there are certainly political sanctions. Art. 37 make
the directives, “fundamental in the governance of the country and in… making laws.” Hence the
government cannot totally ignore them, for fear of adverse popular reaction. The opposition inevitably
takes the government to task whenever the directives are blatantly ignored, thus scoring a political
point. The non-justifiability of part IV has exposed the directives to trenchant criticism. Jennings calls
them “pious aspirations,” and “Fabian socialism without socialism.” Where characterizes them as
“paragraphs of generalities.”
The Government of India and various state governments have done many efforts to implement
the Directive Principles of State policy and create a welfare state. It may be stated that the state has not
been able to make the country a ‘welfare state’ in the last 6 decades yet, the pace of the development,
when we compare it with the pace of development in the British Era, is satisfactory7.
Yet many scholars appreciate the value of the directives. Sir B. N. Rau regards them as “moral
precepts” with an educative value. Ambedkar considered them as powerful instruments for the
transformation of India from a political democracy into an economic democracy. The directive principles
according to Granville Austin are “positive obligations”… to find a piddle way between individual liberty
and Public good. “The directives constitute a sort of “instrument of instruction” to all governments in the
great task of transforming a laissez-fire society into a welfare state, a socialistic pattern of society and
eventually into a socialist society8.
4.14 References:
1. Directive Principles of State Policy available at
http://download.nos.org/srsec317newE/317EL7.pdf accessed on 13th January 2015
2. The common origin and Sapru Report available at http://www.gktoday.in/directive-principles-
of-state-policy/ accessed on 14th January,2015
3. Ibid
4. http://www.kooladdict.com/indian-polity-and-constitution/importance-of-directive-principles-
of-state-policy accessed on 4th January,2015
5. Ibid
6. Supra note 3
7. http://www.importantindia.com/2032/directive-principles-of-state-policy-in-the-indian-
constitution/ accessed on 14th January,2015
4.15 Further Readings:
1. A.K.Gopalan v. State of Madras, 1950 SCR 88
2. Ahmedabad Municipal Corporation v. NawabKhan, (1997) 11 SCC at p. 123
3. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
 47

4. Francis Coralie v. Union territory of India, AIR 1978 SC 597

5. K.Rajendran v. State of Tamil Nadu, (1982) 2 SCC 273
6. M.C.Mehta v. State of Tamil Nadu, (1996) 6 SCC 772
7. Minerva Mills Case, AIR 1980 SC 1789
8. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545
9. State of Madras v. Champakam Dorairajan, (1951) SCR 525
10. State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117
11. Unnikrishnan J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645
12. V.R.Krishna Iyer,J. in State of Kerala v. N. M.. Thomas, (1976) 2 SCC 310
13. Vishaka v. State of Rajasthan, (1997) 6 SCC 241
14. Constitutional of India V.N Shukla 11th edition published by Eastern Book Company, 2008.
4.16 Model Questions:
1. What do you understand by the term ‘welfare state’? Is India a welfare state? Discuss in
detail.
2. Examine the nature of Directive Principles of State Policy. What is the sanction behind
them?
3. Discuss the sources of Directive Principles of State Policy to enumerate in the Indian
Constitution. Can the Directive Principles be amended also? If yes, how?

*******
 48

Lesson-5

ROLE OF JUDICIARY, JUDICIAL REVIEW

AND JUDICIAL ACTIVISM

“The bedrock of our democracy is the rule of law and that means we have to have an
independent judiciary, judges who can make decisions independent of the political winds that are
blowing”
Caroline Kennedy
Structure
5.0 Objectives
5.1 Introduction
5.2 Independence of Judiciary
1. Security of Tenure and Appointment
2. Salaries and Allowances
3. Power to punish for contempt
4. No discussion on conduct of Judge in State Legislature / Parliament
5. Powers and Jurisdiction of Supreme Court
6. Art 124(7) Prohibition on practicing before any Court
7. The highly rigid process of impeachment
8. Transfer of Judges
5.3 Judicial Trend
5.4 Judicial Activism
5.5 Judicial Review
5.6 Critical Analysis
5.7 Summary
5.8 References
5.9 Further Readings
5.10 Model Questions
5.0 Objectives:
The objective of this chapter is:
 To understand the Role of Indian Judiciary in protection, promotion of Human Rights.
 To evaluate the concepts of Judicial activism and Judicial review.
 49

5.1 Introduction:
The greatest value of human life is best represented in the recognition of fundamental rights,
and in fully enabling people to enjoy and exercise these rights to the extent that preserves their
humanity and respects their civility. Life would be meaningless if individuals were not able to practice
their natural rights or to adopt the political opinions they believed in. Moreover, life would be
unendurable if individuals were unable to enjoy security in their communities. The rights of individuals
would be without value if no legal system were able to play an active role in their protection.
The executive branches of our country enjoy extensive governing privileges, and may possibly
misuse these privileges or abuse their powers. Therefore, each system of government should be based
on a separation of powers, the independence of those powers, and specifically, the prevailing power of
the judiciary. The judicial branch should, therefore, institute limitations and preventions to restrain the
powers of the branches in their own domains so as to ensure that the acts of governments remain as
lawful as possible. It is essential that there exist laws outlining the rights of the people and the duties of
the State. For this reason, legislators have often carefully drafted rules of civil and criminal procedure
so that a particular state could avoid legal pitfalls. These rules should ideally include safeguards so that
the State does not abuse its powers or exceed its authority to an extent that negatively affects human
rights.
Nevertheless, these rules would be lifeless if there were no other authority that would effectuate
the provisions of law. This authority is vested in the judicial branch, which undertakes the substantial
responsibility of enforcing the safeguards, thereby protecting human rights. As a result of the influence
of the judiciary, individuals may enjoy equality and the other branches of government may function
efficiently.
The concept of right was first systematically developed in Rome. For Roman jurists, right, law
and justice were inseparable, and the term just was used to refer to them all. Rights were created by
law, and law was an articulation of community's conception of justice. Rights were subject to several
constraints, and restricted depth and scope. During several centuries of feudalism, the picture was
equally complex. Not only the individual but such traditional communities and groups as the cities guilds
and estates were also bearers of rights.
5.2 Independence of Judiciary:
One cannot bind himself to the donkey he is riding, an executive action can only be judged by
an impartial judge is not bind to the body it is called upon to judge. The forefathers of our great nation
gifted us with a democracy which by its very definition assumes a judiciary and an independent one too.
Democracy is not functional if there is not an impartial body to review the state's action as state can’t be
the judge in its own cause.
It is very interesting to note that though our founding fathers borrowed heavily from the
parliamentary style of government in the United Kingdom, but they very consciously left out the judicial
structure prevalent in the United Kingdom then. Until 2009, the House of Lords was the highest
appellate body not a supreme court. Dr. Babasaheb Ambedkar's concern and vision to have an
independent judiciary is palpable in the following observation in the constituent assembly-
“There can be no difference of opinion in the House that our judiciary must be both independent of he
executive and must also be competent in itself. And the question is how these two objects can be
secured”.
The basic need for the independence of the judiciary rests upon the fact that to check the
functioning of the Judiciary which acts as a watchdog by ensuring that all the organs of the state
 50

function within their respective areas and according to the provisions of the constitution. Judiciary acts
as a guardian of the constitution and also aids in securing the doctrine of separation of powers.
Moreover it was well known to the framers of the constitution that in future the ambiguity will
arise with the provisions of the constitution so they ensured that the judiciary must be independent and
self-competent to interpret the provision of the constitution in such a way to clear the ambiguity but
such an interpretation must be unbiased i.e. free from any pressure from any organs like executive. If
the judiciary is not independent, the other organs may pressurize the judiciary to interpret the provision
of the constitution according to them. Judiciary is given the job to interpret the constitution according to
the constitutional philosophy and the constitutional norms.
Though in India there is no express provision in the Constitution but the independence of
Judiciary is imbibed in the letters of various provisions of the Constitution. Independence of judiciary
and rule of law are the basic features of the Constitution it cannot be abrogated even by constitutional
amendments. (S.P. Gupta v Union of India AIR 1982 SC 149).
1. Security of Tenure and Appointment:
The power of appointment of Judges of the Supreme Court is to be found in Clause (2) of Article
124 and this clause provides that every Judge of the Supreme Court shall be appointed by the
President after consultation with such of the Judges of the Supreme Court and the High Courts in the
States as the President may deem necessary for the purpose, provided that in the case of appointment
of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. It is
obvious on a plain reading of Clause (2) of Article 124 that it is the President, which in effect and
substance means the Central Government, which is empowered by the Constitution to appoint Judges
of the Supreme Court. So also Article 217, Clause (1) vests the power of appointment of Judges of
High Courts in the Central Government, but such power is exercisable only "alter consultation with the
Chief Justice of India, the Governor of the State and the Chief Justice of the High Court.” It is clear on a
plain reading of these two Articles that the Chief Justice of India, the Chief Justice of the High Court
and such other Judges of the High Court and of the Supreme Court as the Central Government may
deem it necessary to consult, are merely constitutional functionaries having a consultative role and the
power of appointment resides solely and exclusively in the Central Government. It is not an unfettered
power in the sense that the Central Government cannot act arbitrarily without consulting the
constitutional functionary’s specified en the two Articles but it can act only after consulting them and the
consultation must be full and effective consultation.
Prof. Shibban Lal Saksena of the members of constituent assembly had suggested that the
appointment of Judges should be confirmed by 2/3rd majority of the parliament. (Constituent Assembly
Debate On 24 May, 1949) This proposition was rejected by the house because it would compromise
the independence of judiciary and would eave the fate of the judge in the hands of the executives and
legislators. This set the tone for independence of Judiciary in our country.
2. Salaries and Allowances
“Those who control the pursue strings will always have some capacity to influence the actions of
those who are dependent upon the content of the purse………. There can be no doubt that executive
government control over judicial salary fixation is always at least an incipient threat to judicial
independence.”
(Report of the Remuneration Tribunal of Common Wealth of Australia, 1997, p.33)
The salaries and allowances of the judges is also a factor which makes the judges independent
as their salaries and allowances are fixed and are not subject to a vote of the legislature. They are
 51

charged on the Consolidated Fund of India in case of Supreme Court judges and the Consolidated
Fund of state in the case of High Court judges. Their emoluments cannot be altered to their
disadvantage (Art. 125(2)) except in the event of grave financial emergency. The conditions of service
of judges while in office cannot be varied during the tenure nor can their salaries be reduced. Until their
salaries are determined by or under a law made by the parliament, their remuneration or allowances
are as specified in Il Schedule to Constitution of India (Article 125 and 221 of the Constitution) Selection
to the Higher Judicial Service in terms of Article 233 of the Constitution of India is also conducted by the
High Court (State of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447, (1966) 1 SCR 771).
Article 112(3) (d)(i) of Constitution requires that budget shall contain a provision for payment of
salaries and allowances and pensions to Judges of Supreme Court and Article 202(3)(d) deals with the
salaries and allowances of High Court lnsofar as the judiciary at grass root level is concerned, the
budget is prepared by various unit heads consolidated at the State level and presented to the State
Legislature.
In First All India Judges Case (1992) 1 SCC 109), the Supreme Court said, “(the efficient
functioning of the Rule of law under the aegis, of which our democratic society can thrive, requires an
efficient, strong and enlightened judiciary. And to have it that way, the nation has to pay a price.
3. Power to punish for contempt:
Both the Supreme Court and the High Court have the power to punish any person for their
contempt. Art. 129 provide that the Supreme Court shall have the power to punish for contempt of itself.
Likewise, Art 215 lays down that every High Court shall have the power to punish for contempt of itself.
Article 129 enables Supreme Court to be Court of Record:
The Supreme Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.
4. No discussion on conduct of Judge in State Legislature / Parliament
Art. 211 provide that there shall be no discussion in the legislature of the state with respect to
the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties. A similar
provision is made in Art. 121 which lay down that no discussion shall take place in Parliament with
respect to the conduct of the judge of Supreme Court or High Court in the discharge of his duties
except upon a motion for presenting an address to the President praying for the removal of the judge. It
is one of the safeguards to protect the independence of judiciary (HALSBURY, 4TH Edn, Para. 819)
Article 121 appears with a general heading 'Procedure Generally'. Article 124 (4) and (5) appear in
chapter IV and it is obvious that Article 121 is a general rule designed to prevent discussion in
Parliament about the conduct of a judge of SC or HC (Sub-Committee On Judicial v. Union of India And
Ors 1991 AIR 1598).
5. Powers and Jurisdiction of Supreme Court
Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail
them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme
Court. Parliament may enhance the appellate jurisdiction of the Supreme Court. It may confer the
supplementary powers on the Supreme Court to enable it work more effectively. It may confer power to
issue directions, orders or writs for any purpose other than those mentioned in Art. 32. Powers of the
Supreme Court cannot be taken away.
6. Art 124(7) Prohibition on practicing before any Court
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No person who has held office as a Judge of the Supreme Court shall plead or act in any court
or before any authority within the territory of India. This provision is there to ensure that there are no
future allurements for the judgments considering which their justice delivery is compromised.
7. The highly rigid process of impeachment
Impeachment under Article 124(4) and (5), the same procedure applies to High Court Judges.
Clause (4) of article 124 provides that a Judge of the Supreme Court shall not be removed from his
office except by an order of the President passed after an address by each House of Parliament
supported by a majority of the total membership of that House and by a majority of not less than two-
thirds of the members of that House present and voting has been presented to the President in the
same session for such removal on the ground of proved misbehaviour or incapacity. The constitutional
provision does not prescribe how this investigation is to be carried on. It leaves it to Parliament to settle
and lay down by law the detailed procedure according to which the address may be presented and the
charge of misconduct or incapacity against the Judge investigated and proved, in America, the Judges
of Supreme Court hold office for life. They can, however, be removed by impeachment in cases of
treason, bribery on other high crimes and misdemeanor.
8. Transfer of Judges:
This provision is there in the constitution to immune the judges from unnecessary transfers used
by the executives to harass public servants who are honest.
Judges Transfer Case 1 :
In the case of S P Gupta vs Union of India,(1982 SC) unanimously agreed with the meaning of
the word 'consultation' as determined in the Sankalchand's case. It further held that the only ground on
which the decision of the govt. can be challenged is that it is based on mala fide and irrelevant
consideration in doing so, it substantially reduced its own power in appointing the judges and gave
control to the executive.
Judges Transfer Case 2 :
This matter was raised again in the case of SC Advocates on Record Association vs Union of
India, AIR 1982. In this case, the SC overruled the decision of the S P Gupta case and held that in the
matter of appointment of judges of high courts and Supreme Court, the CJ should have the primacy
and the appointment of the CJ should be based on seniority. It further held that the CJ must consult his
two senior most judges and the recommendation must be made only if there is a consensus among
them.
Judges Transfer Case 3:
A controversy arose again when the CJ recommended the names for appointment without
consulting with other judges in 1999. The president sought advice from the SC (Re Presidential
Reference 1999) and a 9 member bench held that an advice given by the CJ without proper
consultation with other judges is not binding on the govt.
As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC
and High Courts are fairly free from executive control This is an important factor that ensures the
independence of the judiciary.

5.3 Judicial Trend:

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The latest judicial trend reveals that Indian courts are quite enthusiastic in using the law as a
tool of social revolution and to serve the larger social interest. Chief Justice Bhagwati has rightly
observed that courts should be guided by the paramount object and purpose for which the constitution
has been enacted. Law must be treated as a tool of social reform and social transformation for creating
a new social order where human rights of each and every individual can be enforced with a possibility
of grater common good.
The very first and basic human right of an individual is right to life and life with dignity is part and
parcel of this right Life with dignity is the necessary epitome of right to life which helps in development
of an individuals personality and true realization of human rights.
The court in Kharak Singh vs. State of U.P. (AIR 1963 SC1295) defined the meaning of 'LIFE'
as something more than mere animal existence. Life in real sense means life with dignity and of such
nature which may afford an individual the opportunities to get desired heights as per his capabilities.
Life with dignity goes with many other things which are the basic necessities of life such as adequate
nutrition, clothing and shelter over heads and facilities to read write and express or simply to say
education. The same was held in Francis Carolie vs. Union Territory of Delhi (AlR 1981 SC 746 ) and
activities as constitute the bare minimum expression of human self were declared as human right. Right
to livelihood is also as much important as right to live itself is as if one is not given right to earn his
livelihood his right to live is not worth. One cannot enjoy of being a human if he does not possess right
to earn as per his capabilities. We cannot expect that a bagger enjoys his life as a human new w or a
dignity of being a human which an individual must feel. A man whosoever he is must get the
opportunity to collect means of his life by his own efforts not by the mercy or others. The Supreme
Court in Olga Tellis vs. Bombay Municipal Corporation (1985) 3SCC 545) and Delhi Transport
Corporation vs. DTC Majdoor Congress (AIR 1991 SC 101) case came forward with the protection of
right to livelihood slum and pavements dwellers and employees of DTC and held that right to life
includes right to livelihood and they are deprived of this right. It will be a threat to their very existence
and may be the biggest attack over their human rights.
Moving ahead right to shelter is also one of the principal right that constitute the entire spectrum
of Human right jurisprudence. The term 'Shelter' should not be confined to the meaning: roof and four
walls, which it obviously is. It should be taken on a different arena and must include all social, economic
and political shelter. If we talk about social shelter it means that every class of society which is
vulnerable for its self protection must be given by the rest of society members. Parental care for every
child as was held a human right of every child in Laxmi Kant vs. Union of India (1987) 1 SCC 66 case. It
was also held in this case that parental care is an inherent right of every child and must be given
preference over any other concern. A child becomes a man and he becomes the mind, hand and body
of a country, so it is not only in the interest of child but also in the collective interest of a country that its
children should be given living, food, education and other required necessities. Every effort should be
made to abolish child labour which presents the worst picture of a country claiming to be rich in
protection of human rights. The problem is not a new one for us and therefore our constitution framers
under Article 15(3), 24, 45, 47 made provisions for securing the interest of children.
Justice Subba Rao rightly observed that social Justice must begin with children unless the
tender plant is property nourished. It has a little chance of growing into a strong and useful tree. So find
priority in the scale of social justice should be given to the children and they must be preferential owner
of human right of shelter.
In Sheela Barse vs. Secretary Children Aid society and others (1987) 3SCC 50 case it was very
will observed that if there be no proper growth of children of today, the future of the country will be
 54

clark. It is the obligation of every generation to bring-up the children who will be the citizen of tomorrow
in a proper manner. Today's children will be the leaders of tomorrow who will hold the country's banner
high and maintain the prestige of the nation. But the primary responsibility starts from individual level as
most of the percentage of child labour is working as domestic servants and if we dream for a better
country first we must ensure the human rights of children working as domestic servant and must set
them free from slavery.
The second vulnerable class of society is women. Though the women in present time have
came out from the boundaries of their houses and have better understanding of their rights but the ratio
is very low. Most of the women are still locked within the four walls. They still face a unequal and
degraded treatment. In Mohammad Ahamad vs Shah Bano (1995) 2 SCC 556 Case it was held that
‘Large segment of the society have been traditionally subjected to unjust treatment. Women are one of
such segment.” Women are still an easy prey to dowry deaths and violence of men which is the gross
violation on their human rights. In every aspect if life whether it may be emotional, economic,
educational, social women are subject to discriminatory treatment in majority. Even in sexual activities
which needs equal participation or male and female women don't have any freedom; they are used by
men as a machine to satisfy their sexual desire without paying any heed to requirements and limitations
of a lady. They are subjected to sexual exploitation at every place whether it may be a educational
institute, government enterprise or a corporate firm, instances of their exploitation within the boundaries
of their own houses by wicked fellows, neighbours, far or near relatives or sometimes by their own
husbands or fathers are also very common. When we talk of women's development all are just vague or
merely a showcase discussions. These are simply window shopping of development. Court in various
cases as Visakha case (1997) 6 SCC 241 Nargeesh Mirza case, Chandrimadas vs. Chairman Railway
Board (2000) 2 SCC 556 etc. has made efforts for creating equality for women to save their human
rights but still the cases of gross violation of human rights of women such as Guddi case where she
was compelled to marry with her father in law are coming regularly which shows that we are still lacking
in protection of human rights of women. Their must be a common effort by the society to raise the
standard of women. For this the first thing which is required is change of mentality. We must treat them
human same as men are. Only then an inner feel of equality may come and human rights of female
who is the essential part of carrying out the circle of life may be secured.
Shelter should also include educational shelter as the shelter would not result into a dignified
human life unless it is backed by proper education. As the light of a candle depends on the thread
inside the candle providing force and medium to the heat energy to produce light in the same manner
future of a country depends on the education in that country providing its citizen the capability of proper
and effective communication with outside world
Education helps the individual to understand his/her right, manner for its implementation.
Therefore the right to education becomes the part of inalienable human right. Education is also a halt
where the fficacy or propriety of implementation of human rights may be checked into. Further human
right of dignified life may be provided only when education is imparted and therefore education
automatically becomes human right of an individual. For implementation of this very human right
Supreme court in various cases provided education a status of Fundamental right. Unnikrishnan J.P.
vs. State of Andhra Pradesh (1993) 1 SCC 645) and Mohini Jain (1992) 3 SCC 666 case are
remarkable on the point. It is the effort of judiciary in its various judgments due to which the legislature
was compelled to give right to education a constitutional status and Article 21 A was added as
fundamental right.
Economic shelter may refer right to work and livelihood which I have dealt with earlier. The only
thing which I would like to discuss at this stage is that right to work does not mean to work as animal
 55

even the animal has some rights then a human certainly has something more than that. What I mean to
say that right to work includes right to work in a healthy environment. It is not only the human right of
every employee to get healthy, pleasant and soothing atmosphere at workplace but also the duty of
employer to take care of it. Well known Visakha case gave this human right an abstract picture and
fixed duty on the employer to protect its employee from sexual exploitation and arrange for a health)
environment of work. It is not only in the interest of employee but also for employer as a health working
environment may result into a better performance and enhanced capacity.
Political shelter means that the confidence of the people should not be offended or destroyed by
any of political policy or action of the government or their political agents in whom they repose their
confidence. In a representative system it is not only the legal right of an individual but also a human
right to get a proper representation. Therefore the political parties and leaders as they hold the
confidence of common man they should not violate it.
Justice C.K. Thakkar in State Of Maharastra Vs. Bhaurao Punjabrao Gawande (2008) 3 SCC
613 observed.
“There can be no doubt that personal liberty is a precious right. So did the Founding Fathers
believe because, while their first object was to give unto the people a constitution whereby government
was established, their second object, equally important was to protect the people against the
government. That is why while conferring the extensive powers on the government like the power to
declare an emergency, the power to suspend the enforcement of the fundamental rights or the power to
issue an ordinance, they assured to the people a bill of rights by Part IIl of the constitution, protecting
against executive and legislative despotism those human rights which they regarded as fundamental.
The imperative necessities to protect those rights are a lesson taught by all history and all human
experience. Our constitution makers had lived through bitter years and seen an alien government
trample upon human rights which the country had fought hard to preserve. They believed like Jefferson
that 'an elective despotism was not the Government we fought for' and, therefore, while arming the
government with large powers to prevent anarchy from within and conquest from without, they too care
to ensure that those powers were not abused to mutilate the liberties of the people.”
Moving one step forward in the journey of human right journey the next right is right to get
remedy. In enforcement of this human right role of Public interest Litigations is very remarkable. Justice
Krishna lyer defined the term PIL as a process of obtaining justice for the people, of voicing people'
grievances through legal process. The aim is to give to the common man access to the courts to obtain
legal redress.
The shrines of justice have been thrown open for the poor, exploited and deprived section of
community. The courts in India have started transforming the judiciary from merely a 'court of law' into a
'court of Justice', giving a sense of realization that the law and justice is meant for poor also. The courts
unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of
procedure in the exercise of its power and treat the letter of public minded individual as a writ petition.
Thus the PIL emerged as a innovative method for the purpose of providing access to justice to large
masses of people who are denied of their basic human rights.
In Sukdas vs. Union Territory of Arunanchal Pradesh (AIR 1986 SC 991) it was observed that in
the absence of legal awareness which is responsible for the deception, exploitation, 'deprivation of
rights and wrongful suppression of the poor which is a violation of their human rights is very common
on this land. And due to this any effort made by any institution for the upliftment of poor and ensuring
them their human rights fails. Because of poverty, illiteracy, and ignorance they cannot become self
reliant. That is why it has been the principal item of any programme of legal aid movement in the
 56

country to promotes legal literacy. In would in these circumstances make a mockery of legal aid if it
would not be provided as state's responsibility Perhaps considering the aforesaid reasons the right to
get legal aid was declared as fundamental right in the present case and thus a responsibility to secure
human rights of individual was fixed on state.
In Parmanand Katara vs. Union of India (1995) 3SCC 248 the supreme court observed, that is
a paramount obligation of every member of medical profession (private or government) to give medical
aid to every injured citizen brought for treatment immediately without waiting for procedural formalities
and thus secured human right of health or to receive medical treatment.
Another issue which is important in this context is that whether the human rights make a
complete sweep over everything, No certainly, the first and foremost requirement for proper
implementation of human rights is that it must not be against morality and social order as if it is so it
would be rejected by the society itself. For example right to earn livelihood is not only a fundamental
right but also a human right. Livelihood cannot be earned by killing, snatching or by prostitution. The
rights do not give license to do immorality in the grab of human right. It must be in consonance with
moral values of society. I would mention two cases here one an old case of Sitara Devi case decided
by Allahabad High court and the second is very well known Bombay Bar Girls case where the same
issue was in question. lt was observed that the act involves two activities one is cultural and the other is
admittedly immoral and immoral part of the activity cannot be justified by taking plea of human right to
earn livelihood. Moreover no lady involved in these types of activities does the same by her free will. It
is the economic or some other undue pressure which forces her to get indulged in the flesh trade
business which is violation of her human rights.
There are various issues like right to form family recognized under Article 16 of Universal
Declaration on Human Rights whether victims also possess this right, if not whether it is violation of
their human right, torture in police custody, extra judicial killings protection of refugees from neighboring
states, recognition of nationality to peoples living in POK as they don't have any representation in
Indian parliament and not recognized as citizens of Pakistan etc are still untouched or unremedied with
human right perspective.
In spite of various legislative, judicial, executive and non-governmental efforts the condition of
human rights in India is not very satisfactory. India's Achilles heel has always been implementation, and
what has been described as a 'culture of impunity' when faced with routine violation of laws and
regulations in terms of atrocities and rape against dalits, deaths in police custody, encounter killings
and disappearances of communal violence as reported almost daily in India's own media. Another self
inflicted problem is government's extreme sensitivity to external criticism.
We must improve implementation of commitments we have undertaken the culture of impunity
i.e. non implementation has to be frontally attacked. Action must include prompt and visible prosecution
under our laws of those who commit atrocities on vulnerable sections of society. India must rectify the
Conventions against torture without further delay, India should try to come out of the long standing,
sterile and legalistic statement with the UN as to whether caste discrimination falls within the ambit of
racial discrimination. India should reconsider the objections to receiving and cooperating transparently
with UN special rapporteurs on issue of torture, arbitrary and extra judicial killing and detentions,
treatment of human rights defenders etc, request for which have been pending for years. (Times of
India; deted 19.05.08)
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There are various aspects of human rights. Along with disarmament and development, human
beings are essential part of total and holistic peace and human dignity. The human right signifies both
rights and duties which are interlinked. The human rights are not only a vital aspect of a democratic
society, but also for an economic, social and cultural rights and therefore sustainable development of
the society is not possible without respect of human rights. Respect of human rights makes freedom
meaningful. Human rights are meaningless in an environment of poverty and deprivation. Human rights
are above politics. They are part and parcel of life in society and they concern humanity. Human rights
necessarily signify human value in an absolute sense but they have greater relevance of the well-being
of the individual if they are applied the context of society. The whole fabric of society depends upon
human rights. Without human rights the society cannot run smoothly and there could be many chances
of crimes and disturbance in the society. The protection of human rights is a constant struggle which
cannot be won unless every man and woman to participate in it.

Self Assessment Questions:

1. Write a short note on appointment of Judges of Supreme Court.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2. Who has the power to punish for contempt?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
5.4 Judicial Activism:
The phrase 'judicial activism' carries more than one connotation. The common law tradition
conceives of courtroom litigation as an adversarial process where the onus is on the pleaders to shape
the overall course of the proceedings through their submissions. In this conception, the role of the judge
is cast in a passive mould and the objective is to dispassionately evaluate the arguments made by both
sides. However the actual experience of a courtroom clearly bears witness to the tendency on part of
some judges to pose incisive questions before the practitioners. This may have the consequence of
proceedings being judicially-directed to a certain degree. While this literal understanding of activism
from the bench may have its supporters as well as detractors, the focus of my talk will be on another
understanding of Judicial activism'. In the Indian context, there has been a eraging debate on the
proper scope and limits of the judicial role especially of that played by the higher judiciary which
consists of the Supreme Court of India at the Centre and the High Courts in the various States that form
the Union of India. The terms of that debate have been broadly framed with respect to the
considerations of ensuring an effective 'separation of powers' between the executive, legislature and
the judiciary as well as concerns about the efficacy and legitimacy of judicial interventions in the long-
run.
5.5 Judicial Review:
Meaning, Literally the notion of judicial review means the revision of the decree or sentence of
an inferior court by a superior court. Judicial review has a more technical significance in pubic law, in
countries having a written constitution, founded on the concept of limited government. Judicial review
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in this case means that Courts of law have the power of testing the validity of legislative as well as other
governmental action with reference to the provisions of the constitution.
In England, there is no written constitution. Here the Parliament exercises supreme authority.
The courts do not have the power to review laws passed by the sovereign parliament. However,
English Courts review the legality of executive actions. In the United States, the judiciary assumed the
power to scrutinize executive actions and examine the constitutional validity, of legislation by the
doctrine of 'due process'. By contrast, in India, the power of the court to declare legislative enactments
invalid is expressly enacted in the constitution.
Fundamental rights enumerated in the Constitution are made justifiable and the right to
constitutional remedy has itself been made a Fundamental right. The Supreme Court's power of judicial
review extends to constitutional amendments as well as to other actions of the legislatures, the
executive and the other governmental agencies. However, judicial review has been particularly
significant and contentious in regard to constitutional amendments.
In post-independence India, the inclusion of explicit provisions for 'judicial review' were
necessary in order to give effect to the individual and group rights guaranteed in the text of the
Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, had
described the provision related to the same as the ‘heart of the Constitution'.
Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make
any law that takes away or abridges any of the fundamental rights, and any law made in contravention
of the aforementioned mandate shall, to the extent of the contravention, be void.
While judicial review over administrative action has evolved on the lines of common law
doctrines such as 'proportionality legitimate expectation', 'reasonableness' and principles of natural
justice, the Supreme Court of India and the various High Courts were given the power to rule on the
constitutionality of legislative as well as administrative actions. In most cases, the power of judicial
review is exercised to protect and enforce the fundamental rights guaranteed in Part IIl of the
Constitution. The higher courts are also approached to rule on questions of legislative competence,
mostly in the context of Centre-State relations since Article 246 of the Constitution read with the 7th
schedule, contemplates a clear demarcation as well as a zone of intersection between the law-making
powers of the Union Parliament and the various State Legislatures.
Hence the scope of judicial review before Indian courts has evolved in three dimensions - firstly,
to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed
fundamental rights of citizens and thirdly to rule on questions of legislative competence between the
centre and the states. The power of the Supreme Court of India to enforce these fundamental rights is
derived from Article 32 of the Constitution; it gives citizens the right to directly approach the Supreme
Court for seeking remedies against the violation of these fundamental rights. This entitlement to
constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in
common law - such as habeas corpus (to direct the release of a person detained unlawfully),
mandamus (to direct a public authority to do its duty), quo warranto (to direct a person to vacate an
office assumed wrongfully), prohibition (to prohibit a lower court from proceeding on a case) and
cetiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself).
Besides the Supreme Court, the High Courts located in the various States are also designated as
constitutional courts and Article 228 permits citizens to file similar writs before the High Courts.
With the advent of Public interest Litigation (PIL) in recent decades, Article 32 has been
creatively interpreted to shape innovative remedies such as a 'continuing mandamus' for ensuring that
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executive agencies comply with judicial directions. in this category of litigation, judges have also
imported private law remedies such as 'injunctions' and 'stay orders' into what are essentially public
law-related matters.1 Successful challenges against statutory provisions result in reliefs such as the
striking down of statutes or even reading down of statutes, the latter implying that courts reject a
particular approach to the interpretation of a statutory provision rather than rejecting the provision in its
entirety.
Beginning with the first few instances in the late-1970's, the category of Public Interest Litigation
(PIL) has come to be associated with its own 'people-friendly' procedures. The foremost change came
in the form of the dilution of the requirement of 'locus standi' for initiating proceedings. Since the intent
was to improve access to justice for those who were otherwise too poor to move the courts or were
unaware of their legal entitlements, the Court allowed actions to be brought on their behalf by social
activists and lawyers. In numerous instances, the Court took suo moto cognizance of matters involving
the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed
to sitting judges. This practice of initiating proceedings on the basis of letters has now been streamlined
and has come to be described as 'epistolary jurisdiction'.
In 1970, when the Supreme Court struck down some of Mrs. Indira Gandhi's populist measures,
such as the abolition of the privy purses of the former princes and nationalization of banks, the Prime
Minister set about to assert the supremacy of the Parliament. She was able to give effect to her wishes
after gaining two-thirds majority in the 1971 General Elections. In 1972, the Parliament passed the 25th
Constitutional Amendment act which allowed the legislature to encroach on fundamental rights if it was
said to be done pursuant to giving effect to the Directive Principles of State Policy. No court was
permitted to question such a declaration. The 28th Amendment act ended the recognition granted to
former rulers of Indian states and their privy purses were abolished.
Under Article 368, constitutional amendments could be made by the Parliament. But Article 13
provides that the state shall not make any law which takes away or abridges fundamental rights and
that any law made in contravention with this rule shall be void. The issue is, would the amendment of
the constitution be a law made by the state? Can such a law infringing fundamental rights be declared
unconstitutional? This was a riddle before the judiciary for about two decades after India became a
republic.
One of the limits on judicial review has been the principle of locus standi. This means that only a
person aggrieved by an administrative action or by an unjust provision of law shall have the right to
move the court for redressal. In 1982, however, the Supreme Court in a judgment on the democratic
rights of construction workers of the Asian Games granted the Peoples Union of Democratic Rights, the
right of Public Interest Litigation (PIL). Taking recourse to epistolary jurisdiction under which the US
Supreme Court treated a post card from a prisoner as petition, the Supreme Court of India stated that
any 'public spirited' individual or organization could move the court even by writing a letter.
In 1988, the Supreme Court delineated the matters to be entertained as PIL The categories are:
matter concerning bonded labour, neglected children, petition from prisoners, petition against police,
petition against atrocities on women, children, Scheduled Castes and Scheduled Tribes, environmental
matters, adulteration of drugs and foods, maintenance of heritage and culture and other such matters of
public interest. Since the granting of the right to PIL, what some claim to be the only major democratic
right of the people of India, and granted not by the Parliament but by the judiciary, the courts have been
flooded by PILs. While the flood of such litigation indicates the widespread nature of the deprivation of
democratic rights.
 60

Undoubtedly, the Indian Courts have responded to this by collapsing the distinction between
'negative' and 'positive' rights. While the fundamental rights of citizens enumerated in Part III of the
Constitution are justifiable before the higher judiciary, Part IV deals with the 'Directive Principles of
State Policy' that largely enumerate objectives pertaining to socio-economic entitlements. The Directive
Principles aim at creating an egalitarian society whose citizens are free from the abject physical
conditions that had hitherto prevented them from fulfilling their best selves. They are the creative part of
the Constitution, and fundamental to the governance of the country However, the key feature is that the
Directive Principles are 'non-justifiable” but are yet supposed to be the basis of executive and legislative
actions. It is interesting to note that at the time of drafting of the Constitution some of the provisions
which are presently part of the Directive Principles were part of the declaration of fundamental rights
adopted by the Congress party. K.M. Munshi (a noted lawyer and of member of the Constituent
Assembly) had even included in his draft list of rights, the 'rights of workers' and 'social rights’, which
included provisions protecting women and children and guaranteeing the right to work, a decent wage,
and a decent standard of living. 13 Subsequently, the objective of ensuring these entitlements was
included in the Directive Principles. The primordial importance of these principles can be understood by
the following words of Dr. B.R Ambedkar, when he insisted on the use of the word ‘strive’ in the
language of Article 38 which mentions the governmental objective of an equitable distribution of
material resources
“We have used it because it is our intention that even when there are circumstances which
prevent the Government, or which stand in the way of the Government giving effect to these directive
principles, they shall, even under hard and unpropitious circumstances, always strive in the fulfillment of
these directives. ... Otherwise it would be open for any Government to say that the circumstances are
so bad, that the finances are so inadequate that we cannot even make an effort in the direction in which
the Constitution asks us to go.”
[Constituent Assembly Debates, 1g-11-1948]
Thus, the enforceability of measures relating to social equality though incorporated in
aspirational terms was never envisaged as being dependent only on the availability of state resources
in some instances, the Courts have privileged fundamental rights over directive principles while in
others they have creatively drawn a harmonious relationship between the two. An example of this is the
expansion of the conception of personal liberty' under Article 21 of the Constitution which was
traditionally invoked in the civil political context to check governmental abuses. The judicially expanded
understanding of the same now includes several socio-economic entitlements for citizens which place
positive obligations on the state. What is interesting is that the reading in of these socio-economic
entitlements by judges has often directly referred to the language of provisions contained in the part
dealing with directive principles. In this sense, judicial creativity has transformed the substantive
character of the protection of life and liberty.
5.6 Critical Analysis:
The expansion of 'judicial review'/'judicial activism' has of course raised the popular profile of the
higher judiciary in India. However, arguments are routinely made against the accommodation of
'aspirational' directive principles within the ambit of judicial enforcement. There are two conceptual
objections against the justifiability to these positive obligations.
The first is that if judges devise strategies to enforce the directive principles, it amounts to an
intrusion into the legislative and executive domain. It is reasoned that the articulation of newer
fundamental rights is the legislature's task and that the judiciary should refrain from the same.
Furthermore, it la posed that executive agencies are unfairly burdened by the costs associated with
 61

these positive obligations, especially keeping in mind that these obligations were enumerated as
directive principles by the framers on account of practical considerations. This criticism mirrors the
familiar philosophy of 'judicial restraint' when it comes to constitutional adjudication.
However, the second objection to the reading in of positive obligations raises some scope for
introspection amongst judges. It can be argued that the expansion of justifiability to include rights that
are difficult to enforce takes away from the credibility of the judiciary in the long-run The judicial
inclusion of socio-economic objectives as fundamental rights can be criticized as an unviable textual
exercise, which may have no bearing on ground-level conditions. In turn the unenforceability and
unability of state agencies to protect such aspirational rights could have an adverse effect on public
perceptions about the efficacy and legitimacy of the judiciary. Even though practices such as
untouchability, forced labours and child labour have not been totally eradicated, -our constitutional
provisions prohibiting the same are the bedrock behind legal as well as socio-political strategies to curb
the same. The Supreme Court of India has further initialized the importance of laying down clear
normative standards which drive social transformation. Its interventions through strategies such as the
expansion of Article 21 and the use of innovative remedies in Public Interest Litigation (PIL) cases has
actually expanded the scope and efficacy of constitutional rights by applying them in previously
unremunerated settings.
Interestingly, The Supreme Court took strong objection to the Delhi Police's mid-night
crackdown on yoga guru Ramdev’s supporters saying unlawfully depriving a person from sleep is a
violation of his fundamental rights. Supreme Court observed that it is evident that right of privacy and
the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to
drink, to blink. An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is
essential for a human being to maintain the delicate balance of health necessary for its very existence
and survival. Sleep is, therefore, a fundamental and basic requirement without which the existence of
life itself would be in peril. To disturb sleep, therefore, would amount to torture which is now accepted
as a violation of human right. It would be similar to a third degree method which at times is sought to be
justified as a necessary police action to extract the truth out of an accused involved in heinous and old-
blooded crimes it is also a device adopted during warfare where prisoners of war and those involved in
espionage are subjected to treatments depriving them of normal sleep2”.
5.7 Summary
The organization and administration of justice in every country should accordingly be inspired by
the mentioned principles and standards, and efforts should be undertaken to translate them fully into
reality. This in particular concerns the judiciary. A functioning court system is an integral part of an
effective justice system based on the rule of law.
“Every day we see how discredited human rights and United Nations itself would be, in the eyes
of the world, if the declarations, covenants, charters, conventions and treaties that we draft in order to
protect Human Rights remained theoretical or were constantly violated. Human Rights should therefore
be covered by effective mechanisms and procedures to guarantee and protect them and to provide
sanction”. Undoubtedly several efforts have been made and suggested in the direction of better
protection of human rights at different for as in India. The Supreme Court of India is heading towards a
right direction in cases of gender equality. The Apex Court interprets Constitutional provision in favour
of women. Whenever there is a anti-women legislation, rule or order of the government or any other
agency then the Court comes into picture to rescue the rights of women. It is the helper of the last

2. http://kdsbroff.blogspot.in/2012/02/sc-right-to-sleep-is-fundamental-right.html
 62

resort and fortunately, it is also working for the welfare of the women. The National Human Rights
Commission has underlined the need for including principles of human rights in training programme of
police and Paramilitary personnel to protect the sacred rights of citizens.
Number of courts is increased manifold to clear the mounting arrears of pending cases and to
improve the quality of justice. Judicial Officers, their supporting staff, prosecutors and lawyers be
sensitized to the protection of human rights by imparting training. Free Legal Aid Services be made
more effective so as to reach the needy and poor. Public interest litigation by public spirited persons for
genuine public causes is encouraged to voice and address the grievances of the public at large the
poor in particular.
The judiciary should form part of a system of mutual checks and balances and should aim so
preventing abuses of power to the detriment of a free society. The judiciary must therefore be
independent as an institution and also the individual judges deciding particular cases must be able for
exercise their professional responsibilities without being influenced inappropriately. Only are
independent judiciary is able to render justice impartially on the basis of law, thereby also protecting the
human rights and fundamental freedoms of the individual.
The Indian Judiciary has acted in the protection and promotion of Human Rights contained in
the Constitution and the Civil and Political Rights Covenants and Economic, Social and Cultural Right:
Covenants and Universal Declaration of Human Rights of the United Nations. The punch of law
requires more propensity and effect. The working of judicial system particularly, the criminal justice
system has collapsed. It is marred by delays and dying under its own weight due to mounting pendent
of cases. The whole judicial system requires to be reformed. The successive cries of the persons who
matter in the affairs of judiciary for remedial measures have fallen on deaf ears.
Judges cannot act arbitrarily in deciding cases; their duty is to apply the law. In protection
individuals, judges have a responsibility to apply domestic and international human rights law. Matter
which legal system is in place, judicial reforms should be in accordance with international human rights
and rule of law standards.
At last as a concluding remark one can say that right to life, right to food, right to education, right
to earn livelihood, right to marry, right to procreate children, proper political representation, and right to
get offended by someone expression and many other rights may be listed into the list of human right.
Some of those are protected by constitutional provisions and some by judicial decisions. But the scopes
of human rights are bigger than fundamental right. Since the court can protect the violation rights by
state or its agencies by the human rights are available against the world. Every human being
possesses a right that his human right should not be violated by any other individual. Therefore it is for
us to create a system where human rights of each and every individual can be protected. For this we
must understand our correlative human duty. It is a very old moral which everyone of us learns in a first
school that ‘we should not behave others in a manner which we don't expect for us.” it is time to get this
moral imparted into our life so as to establish a society where human rights of every individual can be
protected.
5.8 References/Case Laws:
1. Municipal Corporation of Delhi v. Female Workers, AlR 2000 SC 1282.
2. Chairman Railway Board v. Chandrima Das, -AIR 2000 SC 997.
3. Vishakha v. State of Rajasthan, AIR 1997 SC 3012.
4. Gramophone Co. of India Ltd v. Birendra Bahadur Pandey AlR 1984 SC 667.
 63

5. Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 471.

6. J.N. Pandey, Constitutional Law of India, '(2001) at 353,
7. Human Rights Commission Report, (1998-99) at 126,
8, Yusuf Abdul Aziz v. The State of Bombay AlR 1996 SC 1692.
9. Justice J.N. Bhatt, Gender Equality: Turmoil or Triumph, AIR 1998 Journal 81
10. The Pioneer, New Delhi (21-6-2000) at 4.
11. Sada Mudgal v Union of India (1995) 3 SCC 835
12. Air India Statutory Corporation v. United Labour Union AlR 1997 SC 645
13. Justice Sujata v. Manohar. The International Regime for Gender Justice: Reflection in the
Constitution of India. In Colloquium on Justice for Women-Empowerment Through Law,
(2000)
14. Pragati Varghese v, Cyril George Varghese AIR 1997 Born. 349
15. Noor Saba Khatoon v. Mohd. Quasim AIR 1997 SC 3282.
16. Muslim Women (Protection on Divorce) Act, 1986
17. Lalitha Sundari v R Kethar Nathan AIR 2002 March 17
18. Gautam Kundu v. State AIR 1993 SC 2295
19. Surjeet Singh v. Kamaljit Kaur AIR 2003 P & H. 354.
20. Sharda v. Dharmpal, (2003) 3 JT (SC 399)
21. State of Punjab v. Gurmit Singh AlR 1996 SCW 998
22. Bodhi Satwa Gautam v. Subra Chahraborty (1996) SCC 490.
23. State v. Baldev Singh, AIR 1999 SC 2378
24. Government of A.P. v. P.B. Vijay Kumar, AIR 1995 SC 1649.
25. Air India Cabin Crew Association v. Yeshawinee Merchant and others, 2003 (4) SLR 683
26. T. Saritha v. Thnkata Sabbaith AIR 1983 A.P. 356.
27. Neera v. L.I.C., AIR 1992 SC 392.
28. AIR- 1954 SC 321.
29. Shadab 'V. Mohd. Abdulah, AIR 1967 J. & K. 120.
30. Ranghubans Saudagor Singh v. State AIR 1972 P. & H. 117.
31. Air India v. Nargesh Mirza AIR 1981 SC 1929.
32. Rupan Deal Bajaj v. K.P.S Gill AIR 1995 SCW 4100
33. Madhu Kishwar v. State (1998) 5 SCC 125.
34. Convention on the Elimination of All forms of Discrimination Against Woman, 1979
(CEDAW)
35. UN Declaration of Human Rights, 1948.
 64

36. The Protection of Human Right Act, 1993.

37. National Commission for Women Act, 1992.
38. Apparel Export Promotion Council Vs. A.K. Chopra [(1999) 1 SCC 759j
39. T N Godavarman Thirumalpad v. Union of India & Ors. [(2002); 10 SCC 606].
40. http://www.aahm.net/en/content/call-papers-conference-role-judiciary-human-rights-
protection-and promotion
41. http://www.indyarocks.com/blog/33888/Human-Rights-Origin-issues-and-role-of-judiciary
42. “Independence of Judiciary” Essay and analysis, Pratik Patnayak, available at
http://ssm.com/abstract=2250316 or http://dx.dot.org/10.2139/ssm.2250316
43. Report of the Remuneration Tribunal of Common Wealth of Australia, 1997, p.33
44. http://kdshroff.blogspot,in/2012/02/sc-right-to-sleep-is-fundamental-right.html
5.9 Further Readings:
1. M.K. Nawa 2, Changing Law of Nations (Eastern Law House, New Delhi) 2000.
2. Alam Aftaq, Human Rights in India (Raj Publishing House, Delhi) 2002.
5.10 Model Questions:
1. Discuss the role of judiciary in protection, promotion and pursuance of the Human Rights in
India. Do you think Indian Judiciary is overstepping its domain to deal with certain issues?
Give examples.
2. What do you mean by Judicial Activism? Explain with the help of various Judgments given
by the Supreme Court.
****
 65

Lesson-6

UNIT III

STATUS OF HUMAN RIGHTS IN INDIA WITH SPECIAL

REFERENCE TO CUSTODIAL DEATHS AND TORTURE3

Structure
6.0 Objectives
6.1 Introduction
6.2 Meaning
6.3 Torture and deaths in police custody
6.4 Torture and deaths in judicial custody
6.5 Case Study
Torture Cases from Conflict Areas
Manipur
Assam
Indo-Bangladesh Border
Kashmir
6.6 Judicial Response
6.7 Summary
6.8 References
6.9 Further Readings
6.10 Model Questions
6.0 Objectives:
 To understand the meaning of the term Torture and its prevalence in India.
 To evaluate the judicial response pertaining to the rights of the victims of torture and custodial
deaths or prisoners.
6.1 Introduction:
Torture is wound in the soul so painful that sometimes you can almost touch it, but it is also so
intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and
heavy as a stone, paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and
hate. It is a desire to kill and destroy including yourself”.
Adriana P. Bartow
 66

India is a multiparty, federal, parliamentary democracy with a bicameral parliament and a

population of approximately 1.1 billion with an active civil society. It has a federal structure in which the
states enjoy a high degree of autonomy, especially on issues of law and order. The government
generally respected the rights of its citizens and made progress in reducing incidents of communal
violence, expanding efforts against human trafficking, and reducing the exploitation of indentured,
bonded, and child workers but serious problems remained. Major problems included reported
extrajudicial killings of persons in custody, disappearances, and torture and rape by police and other
security forces. Investigations into individual abuses and legal punishment for perpetrators occurred,
but for many abuses, a lack of accountability created an atmosphere of impunity. Poor prison conditions
and lengthy detentions were significant problems. Some officials used antiterrorism legislation to justify
excessive use of force. Corruption existed at all levels of government and police. While there were no
large-scale attacks against minorities during the year, there were reports of delays in obtaining legal
redress for past incidents. Some states promulgated laws restricting religious conversion. Violence
associated with caste-based discrimination occurred. Domestic violence, child marriage, dowry-related
deaths, honor crimes, and female feticide remained serious problems.2
Separatist insurgents and terrorists in Kashmir, the Northeast, and the Naxalite (Maoist) belt
committed numerous serious abuses, including killing armed forces personnel, police, government
officials, and civilians. Insurgents engaged in widespread torture, rape, beheadings, kidnapping, and
extortion3.
Custodial torture and violence remain an entrenched and routine law-enforcement and
investigation practice across India. However, the practice of torture is even more widespread and
condoned in conflict areas, where it is routinely and violently used, leading to physical and mental
disability or impotence. Common methods of torture in Kashmir and the North- East include: assault,
placement of an iron rod on the legs on which many persons sit, placement of a burning stove between
the legs and administration of electric shocks to the genitals. A communication of the ICRC with US
officials confirmed the widespread use of torture in Kashmir4.
A study conducted in 47 districts for more than two years concluded that an average 1.8 million
people are victims of police torture and violence in India every year. 5Police practices include assault,
physical abuse, custodial rape, threats, psychological humiliation, as well as deprivation of food, water,
sleep and medical attention.6 Most torture cases go unreported because victims fear reprisals. They are
also not confident that the judicial system can or will punish ‘men in uniform’. From 2001-2010, the
NHRC reported a total of 14,231 cases of deaths in police and prison custody (i.e. 1,504 and 12,727
respectively), which represents an average of 43 deaths every day. 7Many of these deaths are a result
of torture. These figures represent only a fraction of the actual number of deaths in custody as they
reflect only the cases registered before the NHRC.
In its report on human rights in India during 2010, Human Rights Watch stated India had
"significant human rights problems".8 They identified lack of accountability for security forces and
impunity for abusive policing including "police brutality, extrajudicial killings, and torture" as major
problems. In 2011, Margaret Sekaggya, the U.N. Special Rapporteur on the situation of human rights
defenders, expressed concern that she found human rights workers and their families who "have been
killed, tortured, ill-treated, disappeared, threatened, arbitrarily arrested and detained, falsely charged
and under surveillance because of their legitimate work in upholding human rights and fundamental
freedoms.9
The law prohibits torture and generally does not allow authorities to admit coerced confessions
in court. NGOs and citizens alleged that authorities used torture to extort money, as summary
 67

punishment and to coerce confessions. In some instances authorities used the confessions as
evidentiary support for death sentences. The ACHR stated the following in its June report Torture in
India 2009: "Torture in police custody remains a widespread and systematic practice in India. They also
noted the lack of an effective system of independent monitoring of all places of detention facilitates
torture."10
NGOs asserted that custodial torture was common in Tamil Nadu and credible sources claimed
police stations in Punjab, Andhra Pradesh, Haryana, and Chandigarh used torture to obtain desired
testimony. The Asian Human Rights Committee claimed police used torture and assault in Kerala and
Gujarat as a means of criminal investigation. NGOs claimed the NHRC underestimated the number of
rapes, including custodial rapes that police committed. Some rapes may have gone unreported due to
the victims' feelings of shame and fears of retribution.
6.2 Meaning of Torture:
Torture means any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.
This definition contains three cumulative elements:
• The intentional infliction of severe mental or physical suffering
• By a public official, who is directly or indirectly involved
• For a specific purpose.
The World Medical Association, in its Tokyo Declaration, 1975, defined "torture" 11 as "the
deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons,
acting alone or on the orders of any authority to force another person to yield information, to make a
confession or for any other reason".
6.3 Torture and deaths in police custody12
The NHRC recorded 1504 deaths in police custody during 2001-2010 which includes 165
deaths in 2001-200213 183 deaths in 2002-200314 162 deaths in 2003-200415 136 deaths in 2004-
200516 139 deaths in 2005-200617 119 deaths in 2006-200718 187 deaths in 2007-200819 142 deaths in
2008-2009, 124 deaths in 2009-2010 and 147 deaths in 2010-201120
6.4 Torture and deaths in judicial custody: Uttar Pradesh tops the chart4
The NHRC also recorded 12,727 deaths in judicial custody from 2001-2002 to 2009-10.21 These
included 1,140 cases in 2001-200222 1,157 cases in 2002- 200323 1,300 cases in 2003-200424 1,357
cases in 2004-200525 1,591 cases in 2005-200626 1,477 cases in 2006-200727
1,789 cases in 2007-200828 1,532 cases in 2008-2009, 1,389 cases in 2009-2010 upto 28
February 2010. 29In other words, an average of 1,416 persons died year during this period.30
 68

A large number of deaths in judicial custody also take place as a result of torture, denial of
medical facilities and inhuman prison conditions that amount to torture, inhuman or degrading
treatment. In August 2010, Mr B.D. Sharma, Additional Director General of Prisons of West Bengal
reported in his investigation into a torture case underlined that “it was becoming a practice in the jail to
punish prisoners by physically assaulting them in gross violation of human rights.”31
6.5 Case Study:
Torture Cases from Conflict Areas
Manipur:32 On the night of 11 August 2010, Naorem Modhu Singh (26 years), son of Mangoljao, died
due to alleged torture in the custody of the combined team of 12th Madras Regiment and Manipur
Police Commandos at Khoijumantabi village under Kumbi police station in Bishnupur district of
Manipur. He and his cousin were picked-up from his residence by the combined team on suspicion of
links with a banned militant group.
On 12 August 2010, the personnel of 12th Madras Regiment handed-over his dead body to the
Kumbi police station. In its report to the police, the 12th Madras Regiment claimed that the deceased
had collapsed while in their custody and that he was taken to an army hospital where doctors declared
him brought dead. However, the family members of the deceased allege that Naorem Modhu Singh
was tortured to death in custody, which is supported by the facts and circumstances of the case.
Assam:34 On 6 March 2009, Asian Centre for Human Rights (ACHR) filed a complaint in the NHRC
alleging that personnel belonging to 871st Field Regiment of the Indian Army, picked up Bhadrakanta
Baruah, son of late Yogaram Baruah on the night of 31 January 2009 and tortured him in their custody
at the Maibela base Army camp in Sivsagar district of Assam on suspicion of having links with the
banned United Liberation Front of Asom (ULFA). In his reply to the NHRC, the Superintendent of Police
of Sivsagar informed that immediately after the army handed-over Bhadrakanta Baruah and Ghana
Neog to the police, they were medically examined and the doctor opined that both of them had
“received simple injuries caused by blunt object.” Detailed investigation by the police did not reveal any
link of the victims with ULFA and they were released on the same day. Both victims were farmers. The
Ministry of Defence denied that the victims were tortured and claimed that they have confessed to
having provided shelter to the ULFA. In its order delivered on 4 March 2010, the NHRC rejected this
claim of the Ministry of Defence and directed them to pay compensation of INR 50,000 (USD 950) to
each of the victims.
Indo-Bangladesh Border: Border Security Force (BSF) soldiers have often been accused of torture
and extrajudicial killings near India’s border with Bangladesh. Recently, eight soldiers belonging to the
BSF’s 150th Batallion were found brutally beating up a Bangladeshi national, later identified as Habibur
Rahman, on a video reportedly filmed by one of them.The victim is alleged to have been attempting to
smuggle cattle from Bangladesh into India as a part of a group. The video shows the victim being
pushed to the ground, with initially his hands and feet being tied with a rope. A soldier is seen putting
his foot on his chest, while attempting to tie his hands together. While abusing, jeeringly laughing and
making a conscious effort to film the victim, they are seen stripping him naked. They then make him
stand up and slide a bamboo stick across his arms tied behind his back, with a portion of his lungi,
which they had torn into two. They are then seen violently beating him all over his bare body using
bamboo sticks, with full force. One of the soldiers is then seen sitting on his back and holding his legs
together for the other one to hit him with a stick on the soles of his feet. The victim can be heard to be
in seething pain and pleading to be spared. Instead of handing the victim to the police, the BSF soldiers
not only illegally detained the victim, but also tortured him as described above. Reportedly, they then
left him to make his way back into Bangladesh. A local organization released the video to local news
 69

channels, after which BSF suspended the soldiers and ordered an inquiry. However, despite clear
evidence of abuse, no criminal charges have been filed against any soldiers to date.
Kashmir: There has been a phenomenon of detention and torture of youth as young as 10 years old,
particularly after the protests of 2008 and 2010 in Kashmir. Sameer Khan (name changed), one such
youth was detained by the armed forces when he was in his late teens.5 According to his account, he
was thrown into a dark room, where he was beaten with gun butts, causing his nose and head to bleed.
While still in pain, an hour later, the security personnel tortured his genitals by administering electric
shocks, using cigarette butts and inserting a copper wire into his penis. After his release, he had to be
put on medication for the injuries as well as for displaying signs of depression. Khan said: “I recovered
after almost a year... but I still get nightmares about it almost every week”.
Another torture survivor, Danish Malik (name changed), now 23 years old, was detained for 3
months and 10 days prior to being produced before the court. Malik described his deplorable treatment
during his detention as follows: “They had rollers, and other implements to administer electric shocks.
They hung me upside down naked, with my hands tied at the back. I was sweating and had passed out.
When they finally asked me to put my clothes back on, I couldn’t even lift my hand. There was a small
window in the lock-up to which I was shifted, which they kept shut at all times. I could see only very little
light coming into the lock-up through cracks in the window. I was let out of the lock-up only to wash my
face every morning. I had to urinate in the lock-up and sleep with rats”.36
Self Assessment Questions:
1. Define the term Torture.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2. Write a short note on Torture in police custodies.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

6.6 Judicial Response37:

The Supreme Court of India in the recent past has been very vigilant against encroachments
upon the Human Rights of the prisoners. Article 21 of the Constitution of India provides that “No person
shall be deprived of his life and Personal Liberty except according to procedure established by law”.
The rights to life and Personal Liberty are the back bone of the Human Rights in India. Through its
positive approach and Activism, the Indian judiciary has served as an institution for providing effective
remedy against the violations of Human Rights. By giving a liberal and comprehensive meaning to “life
and personal liberty,” the courts have formulated and have established plethora of rights. The court
gave a very narrow and concrete meaning to the Fundamental Rights enshrined in Article 21.
The subject of torture and death of person in police custody has been, apart from being main
subject of concern by the civil society in general and organizations concerned with the protection of civil
liberties such as PUCL etc., have also been matters of authentic adjudication by the Supreme Court of
 70

India. In fact the subject formed the very first case of the Supreme Court of India in what is known as
"A.K.Gopalan VS State of Madras"38 but more specific cases on the subject of torture and custodial
deaths are as following:
Sunil Batra vs Delhi Administration"39 is the judgment of a Constitution Bench. The celebrated
Justice Krishna Iyer begins the judgment with the following words which are not only instructive but
form a soul searching sum up of the conceptualization on the subject of torture and custodial deaths.
The following is the extract of the judgment. "The province of Prison Justice, the conceptualization of
freedom behind bars and the role of judicial power as Constitutional sentinel in a prison setting, are of
the gravest moment in a world of escalating torture by the minions of State, and in India, where this
virgin area of jurisprudence is becoming painfully relevant.
The Preamble as stated above by Justice Krishna Iyer (Justice Desai & Others agreeing with
him) laid down the law as follows:
1. It is no more open to debate that person in prisons (under-trials and convicts) are not wholly
denuded of the fundamental rights of prisoners. Liberty is, in the very nature of things,
circumscribed by the very fact of his confinement." conviction for a crime does not reduce
the person into a non person whose rights are subject to the whim of the prison
administration" (Paras 53,57 & 212).
2. Justice Krishna Iyer further laid down "the courts must, consciously and deliberately focus
their attention to one fundamental fact that it is required to examine the validity of all laws (
including the pre-constitutional laws) in the context of modern reformist theory of
punishment; jail being treated as a correctional institution. The necessary concomitants of
the facts of incarcerations, is the security of the prison and the safety of the prisoner the
court would put in balance the twin objects underlying punitive and preventive
incarcerations. The court has, to strike a just balance between dehumanizing prison
atmosphere and the perseverance of internal order, discipline. (Para 213)
3. Answering various contentions made on behalf of the State supporting the powers of the
State in dealing with reference to various criminal laws including the Criminal procedure
Code Prisons Act and Criminal Amendment Act etc., The Supreme Court led by Justice
Krishna Iyer held that no such power was sought to be resorted to as a justification for
unbridled power and all such provisions of law purporting to be empowering the authorities
are subjective to the Constitutional mandates and limitations.
4. While citing the judgment of Maneka Gandhi’s case "AIR 1978 SC p.597", the Supreme
Court held all such laws purporting to give any arbitrary, unjust and omnipotent powers are
illegal.
5. Lastly the Supreme Court held that the treatment of the prisoners must be in conformity with
human dignity and avoid torture reducing the man to the level of a beast.
Another case of a historical importance on the subject is the case of "D.K.Basu vs. State of
West Bengal"40 In paragraph 22 of the judgment, Justice Dr.S.A.Anand laid down the law as follows:
"Custodial death is perhaps one of the worst crimes in civilized society governed by the rule of
law. The rights inherent in Art. 21 & 22 (1) of Constitution are required to be jealously and scrupulously
protected. We cannot whisk away the problem. Any form of torture or cruel, inhuman or degrading
treatment would attract Art.21 of the Constitution, whether it occurs during investigation, interrogation or
otherwise. If the functionaries of Government become law breakers, it is bound to bring contempt for
law and will encourage lawlessness and every man would have the tendency to take law unto himself
 71

leading to anachronism. No civilized nation can permit that to happen. Does a citizen shed of his
fundamental right of life, the moment a police man arrests him? Can the right to live of a citizen be put
in abeyance on his arrest? These questions touch the spinal card of the human rights jurisprudence.
The answer, indeed, has to be an emphatic ‘No’. The precious right guaranteed by Art.21 of the
Constitution of India cannot be denied to convicts, under-trials, detenues and other prisoners in
custody, except according to the procedure established by law by placing such reasonable restrictions
as permitted by laws.
After quoting several decisions, Supreme Court laid down several rules, mandates, directions
addressed to the State and all their subordinates and minions in sub Paras 1 to 11 of paragraph 36 of
the judgment which, if followed would have made the society worthy of the lofty declaration made in the
Preamble of the Constitution.
The next landmark judgment of the Supreme Court is that of "K.H.Shekarappa vs State of
Karnataka.41 In paragraph 2 of the judgment Justice Panchal who pronounced the judgment, observed
as follows:
Though several Constitutional and Statutory provisions have been enacted to safeguard the
personal liberty and life of citizens, incidents of torture and death in the police custody are ever on the
rise. In spite of condemnation of such acts by this Court and the High Courts, certain police officials
conduct themselves in a manner resulting into gruesome torture and death of suspects in the police
custody. There is no manner of doubt that these are the most heinous crimes committed by persons,
who claim to be the protectors of the citizens. What is distressing to note is that the incidents of torture
and death in the police custody take place under the shield of uniform and authority, in the four walls of
a police station or in the lock-up, where the victims are totally helpless.
In the following cases namely Maneka Gandhi42, Sunil Batra (I)43, M.H.Hoskot and Hussainara
Khatoon44, the Supreme Court has taken the view that the provisions of part III should be given widest
possible interpretation. It has been held that right to legal aid, speedy trail, right to have interview with
friend, relative and lawyer, protection to prisoners in jail from degrading, inhuman, and barbarous
treatment, right to travel abroad, right live with human dignity, right to livelihood, etc. though specifically
not mentioned are Fundamental Rights under Article 21 of the Constitution. Thus, the Supreme Court of
India has considerably widened the scope of Article 21 and has held that its protection will be available
for safeguarding the fundamental rights of the prisoners and for effecting prison reforms. The Supreme
Court of India has developed Human Rights jurisprudence for the preservation and protection of
prisoner’s Right to Human Dignity. The concern of the Apex judiciary is evident from the various
cardinal judicial decisions. The decisions of the Supreme Court in Sunil Batra were a watershed in the
development of prison jurisprudence in India.
The courts have strong view against solitary confinement and held that imposition of solitary
confinement is highly degrading and dehumanizing effect on the prisoners. The courts have taken the
view that it could be imposed only in exceptional cases where the convict was of such a dangerous
character that he must be segregated from the other prisoners. The Supreme Court in Sunil Batra (1)
considered the validity of solitary confinement. The Supreme Court has also reacted strongly against
putting bar fetters to the prisoners. The court observed that continuously keeping a prisoner in fetters
day and night reduced the prisoner from human being to an animal and such treatment was so cruel
and unusual that the use of bar fetters was against the spirit of the Constitution of India.
Human Rights are part and parcel of Human Dignity. The Supreme Court of India in various
cases has taken a serious note of the inhuman treatment on prisoners and has issued appropriate
directions to prison and police authorities for safeguarding the rights of the prisoners and persons in
 72

police lock–up. The Supreme Court read the right against torture into Articles 14 and 19 of the
Constitution. The court observed that “the treatment of a human being which offends human dignity,
imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and
can be questioned under Article 14”. In the Raghubir Singh v. State of Bihar, the Supreme Court
expressed its anguish over police torture by upholding the life sentence awarded to a police officer
responsible for the death of a suspect due to torture in a police lock up. In Kishore Singh vs. State of
Rajasthan the Supreme Court held that the use of third degree method by police is violative of Article
21.
The horizon of Human Rights is expanding. Prisoner’s rights have been recognized not only to
protect them from physical discomfort or torture in person, but also to save them from mental torture.
The Right to Life and Personal Liberty enshrined in Article 21 cannot be restricted to mere animal
existence. It means something much more than just physical survival. The right to have interview with
the members of one’s family and friends is clearly part of the Personal Liberty embodied in Article 21.
Article 22 (I) of the Constitution directs that no person who is arrested shall be denied the right to
consult and to be defended by a legal practitioner of his choice. This legal right is also available in the
code of criminal procedure under section 304. The court has held that from the time of arrest, this right
accrues to the arrested person and he has the right of choice of a lawyer. In a series of cases the
Supreme Court of India considered the scope of the right of the prisoners or detainees to have
interviews with family members, friends and counsel. In Dharmbir vs. State of U.P the court directed the
state Government to allow family members to visit the prisoners and for the prisoners, at least once a
year, to visit their families, under guarded conditions.
In Hussainara Khatoon vs. Home Secretary, Bihar, the Supreme Court has held that it is the
Constitutional right of every accused person who is unable to engage a lawyer and secure legal
services on account of reasons such as poverty, indigence or incommunicado situation, to have free
legal services provided to him by the state and the state is under Constitutional duty to provide a lawyer
to such person if the needs of justice so require. If free legal services are not provided the trial itself
may be vitiated as contravening the Article 21.
In Sheela Barse vs. State of Maharashtra, the court held that interviews of the prisoners
become necessary as otherwise the correct information may not be collected but such access has got
to be controlled and regulated. In Jogindar Kumar vs. State of U.P45, the court opined that the horizon
of Human Rights is expanding and at the same time, the crime rate is also increasing and the court has
been receiving complaints about violation of Human Rights because of indiscriminate arrests. The court
observed that there is the right to have someone informed.
In Madhav Hayawadan Rao Hosket vs. State of Maharashtra, a three judges bench
(V.R.Krishna Iyer, D.A.Desai and O.Chinnappa Reddy, JJ) of the Supreme Court reading Articles 21
and 39-A, along with Article 142 and section 304 of Cr.PC together declared that the Government was
under duty to provide legal services to the accused persons.
In Prem Shanker vs. Delhi Administration the Supreme Court added yet another projectile in its
armoury to be used against the war for prison reform and prisoner’s rights. In the instant case the
question raised was whether hand–cuffing is constitutionally valid or not? The Supreme Court
discussed in depth the hand cuffing jurisprudence. It is the case placed before the court by way of
Public Interest Litigation urging the court to pronounce upon the Constitution validity of the “hand
cuffing culture” in the light of Article 21 of the Constitution. In the instant case, the court banned the
routine hand cuffing of a prisoners as a Constitutional mandate and declared the distinction between
classes of prisoner as obsolete. The court also opined that “hand cuffing is prima-facie inhuman and,
 73

therefore, unreasonable, is over harsh and at the first flush, arbitrary. Absent fair procedure and
objective monitoring to inflict “irons” is to resort to Zoological strategies repugnant to Article 21 of the
Constitution”.
In Selvi Vs State of Karnataka, (2010), the Supreme Court has declared Narcoanalysis,
Polygraph test and Brain Mapping unconstitutional and violative of human rights. This decision is quite
unfavourable to various investigation authorities as it will be a hindrance to furtherance of investigation
and many alleged criminals will escape conviction with this new position. But the apex court further said
that a person can only be subjected to such tests when he/she assents to them. The result of tests will
not be admissible as evidence in the court but can only be used for furtherance of investigation. With
advancement in technology coupled with neurology, Narcoanalysis, Polygraph test and Brain mapping
emerged as favourite tools of investigation agencies around the world for eliciting truth from the
accused. But eventually voices of dissent were heard from human rights organizations and people
subjected to such tests. They were labelled as atrocity to human mind and breach of right to privacy of
an individual. The Supreme Court accepted that the tests in question are violative of Article 20 (3),
which lays down that a person cannot be forced to give evidence against himself. Court also directed
the investigation agencies that the directives by National Human Rights Commission should be
adhered to strictly while conducting the tests. These tests were put to use in many cases previously,
Arushi Talwar murder Case, Nithari killings Case, Abdul Telagi Case, Abu Salem Case, Pragya Thakur
(Bomb blast Case) etc. being ones which generated lot of public interest.
Lastly we must address ourselves to the question that why in spite of such constitutional
mandates in Art.20, 21 & 22 read with Art.14 of the Constitution several judgments of the apex court of
India purporting to protect the right of the citizens from the custodial tortures leading to custodial deaths
are still happened. It is because of the basic mis-concept existing in our society and system of law that
it is the duty of the police man to bring every person accused of offence to justice resulting in the
conviction. It is necessary to understand and realize that the duty of police and law enforcing authorities
are only to make a proper, fair and scientific investigation into the crime. It is a matter of common
knowledge that many persons (sometime including the victims and the relations of the victims) do not
come forward to give evidence. Thereby forcing the policeman and other law enforcing authorities to
extract confession or other material leading to the convictions of the persons in custody.
The State and the society must realize the necessity of developing more scientific forensic
investigation leading to the correct conclusion (convictions or acquittal as the case may be) avoiding
the pressure obligation or duty on the police and other law enforcing authorities to bring the offenders to
justice.
Suggestions:
 Custodial torture must be made a crime. This could be brought in by way of a special law.
 Secondly, many cases of custodial torture could be prevented if law-enforcing agencies
followed the existing laws relating to arrest and detention. The rules established by the Supreme
Court--though not a complete remedy--should be applied without failure. Those who fail to
comply must be prosecuted.
 Thirdly, the public--and especially concerned professional groups, including rights groups and
the media--must closely monitor police practices to see that government promises are upheld.
The political opposition must also see to it that the Director General of Police submits a report to
the legislative assembly, and an investigative report, on every case of custodial death and
torture.
 74

 Fourthly, the central government should be urged to ratify the UN Convention against Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment. The government has failed
to ratify the treaty on spurious grounds that existing laws are good enough to prevent custodial
torture which is evidently not the case. Were that the case, 60 years after independence and
despite numerous concerns and guidelines issued by courts all over India, torture would not
persist unabated as it does today.
6.7 Summary
India signed the United Nations Convention against Torture (UNCAT) in 1997 and stated that
ratification will follow soon. However, 14 years later, India is yet to ratify the UNCAT. On 6 May 2010,
the Lok Sabha passed an extremely weak Prevention of Torture Bill, 2010. It had only four operative
clauses as it was “considered necessary to ratify the UNCAT and to provide for more effective
implementation”. However, at the Rajya Sabha, the Government had to refer the Bill to a parliamentary
Select Committee. The Parliamentary Select Committee headed by Ashwani Kumar, the current
Minister of State for Planning, presented a revised Prevention of Torture Bill, 2010 in December 2010
after calling for inputs from stakeholders and testimony from various experts including Asian Centre for
Human Rights. The revised Bill seeks to comply with the UN Convention against Torture. Apparently,
the Ministry of Home Affairs has objected to the many of the provisions recommended by the
Parliamentary Select Committee and therefore, the new Bill has not been introduced in the parliament
as yet. During the examination of India’s human rights records under Universal Periodic Review (UPR)
on 8 April 2008, the UN Human Rights Council recommended India to “expedite ratification of the
Convention against Torture”. India accepted the recommendation and informed the UNHRC that “the
ratification of the Convention against Torture is being processed by Government of India”. 46
India was once again required to submit voluntary pledges in February 2011 for membership to
the UNHRC. India this time reiterated that it “remains committed to ratifying the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment”.
On 24 August 2011, the Calcutta High Court issued notice to the government of India to file
affidavits within three weeks on the steps taken for ratification of the UNCAT to facilitate extradition of
Kim Davy, the prime accused in the ‘Purulia arms drop case’ and what further steps had been taken for
extradition of Mr. Davy and his two associates, Peter Heastrup and Brian Thune, from Denmark for
their prosecution in the case.47 A PIL was filed on 30 June 2011 after the Danish High Court refused to
allow extradition of Kim Davy on the ground that he would risk “torture or other inhuman treatment” in
India, which has not ratified the UNCAT.
On 15 September 2011, the Ministry of Home Affairs and the Central Bureau of Investigation
sought two more weeks time from the Calcutta High Court to file the affidavits on the ground that their
officials were busy in the case relating to the blast outside the Delhi High Court on 7 September 2011. If
the Calcutta High Court directs the Government of India to ratify the UNCAT to facilitate the extradition
of Kim Davy in public interest, Kim Davy might go down in history as contributing not just to the largest
illegal air drop of arms, but equally for his role to combat torture in India.
6.8 References:
1. http://www.state.gov/j/drl/rls/hrrpt/2009/sca/136087.htm
2. Ibid
 75

3. The Guardian, WikiLeaks cables: India accused of systematic use of torture in Kashmir,
December 16, 2010, available at: http://www.guardian.co.uk/world/2010/dec/16/wikileaks-
cables-indian-torture-kashmir
4. People’s Watch, Torture and Impunity in India, National Project on Preventing Torture in India
(NPPTI), November 2008, available at: www.peopleswatch.org/preventing_torture.php.
5. Ibid
6. National Human Rights Commission Annual Reports, 2001-2010, In: Asian Centre for Human
Rights, Torture in India, 2011, available at: www.achrweb.org/reports/india/torture2011.pdf
7. World Report 2011: India. Human Rights Watch. 2011
8. "India’s human rights defenders need better protection, says UN expert". UN News Center
(United Nations). 21 January 2011
9. 2009 Human Rights Reports: India, available at
http://www.state.gov/j/drl/rls/hrrpt/2009/sca/136087.htm
10. (1999) 7 SCC (Jour) 10
11. http://www.achrweb.org/reports/india/torture2011.pdf
12. 2001-2002 Annual Report of the National Human Rights Commission
13. 2002-2003 Annual Report of the National Human Rights Commission
14. 2003-2004 Annual Report of the National Human Rights Commission
15. 2004-2005 Annual Report of the National Human Rights Commission
16. 2005-2006 Annual Report of the National Human Rights Commission
17. 2006-2007 Annual Report of the National Human Rights Commission
18. 2007-2008 Annual Report of the National Human Rights Commission
19. Unstarred Question no. 1475, Answered by Minister of State in the Ministry of Home Affairs, Mr
Jitendra Singh in the Lok Sabha on 9.08.2011.
20. http://www.achrweb.org/reports/india/torture2011.pdf
21. For 2009-2010, custodial cases are covered for the period up to 28 February 2010.
22. Supra note 13
23. Supra note 14
24. Supra note 15
25. Supra note 16
26. Supra note 17
27. Supra note 18
28. Supra note 19
 76

29. Unstarred Question no. 2683, Answered by Minister of State in the Ministry of Home Affairs, Mr
Ajay Maken in the Lok Sabha on 10.08.2010, see Annexure to the reply at
http://164.100.47.132/Annexure/lsq15/5/au2683.htm
30. Statistics for nine years i.e. from 2001-2002 to 2009-2010 (up to 28.02.2010)
31. Five jail staffers suspended for prison torture, The Times of India, 16 September 2010
32. Asian Center for Human Rights, Torture in India, 2011; Torture in India, 2010; Also see: Human
Rights Watch, India: Prosecute Security Forces for Torture, January 31, 2012.
33. bid
34. Dilnaz Boga, Horrific Brutality in Kashmir, Asia Sentinel, April 28, 2011, available at:
http://www.asiasentinel.com/index.php?option=com_content&task=view&id=3156&Itemid=404
35. Ibid
36. http://www.humanrights.asia/news/forwarded-news/AHRC-FAT-036-2011
37. AIR 1950 SC 27
38. AIR 1978 SC 675
39. AIR 1997 SC P.610
40. 2009(17) SCC p.
41. AIR 1978 SC 579
42. AIR 1978 SC 1675
43. AIR 1979 SC 1369
44. AIR 1994 SC
45. Supra note 10
46. In the Purulia arms drop case, a Latvian aircraft dropped several hundred AK-47 rifles and more
than a million rounds of ammunition over a large area in Purulia district of West Bengal on the
night of 17 December 1995.
6.9 Further Readings:
 K.I. Vibhute, Criminal Justice-A Human Right Perspective of Criminal Justice Process in India,
(Eastern Book Company, Lucknow, 1st Edition, 2004)
 Dikshit, Police and Human Rights Issues; Armugam, Custodial Violence and Deaths: Problems
and Prevention; Sen et al, Custodial Deaths in India; R.S. Saini, Custodial Torture in Law and
Practice with Reference to India, Journal of the Indian Law Institute 36 (2): 166-192; Arora,
Custodial Torture in Police Station in India; Subash C. Raina, Custodial Torture, National
Capital Law Journal 5(2000): 1-20; Archana Sinha, Torture Is a Challenge to the Administration
of Justice, Journal of Human Rights 5(2001): 34-43; Joginder Singh, Third Degree Violates
Human Rights, Civil and Military Law Journal 39 (2003): 143-145; Sudesh Kumar Sharma,
Human Rights, Police and Custodial Violence: A Perspective, M.D.U. Law Journal 5 (2000): 40-
44.
 77

 N. Paranjape, Criminology and Penology, (Central Law Publishing, Allahabad, 12th Edition,
2005)
 Jinee Lokaneeta, Torture in Postcolonial India: A Liberal Paradox?, http://www.wicked
ness.net/els/els2/lokaneeta paper.pdf (Visited on January 19, 2010)
 Asian Human Rights Commission, INDIA: Government of Kerala must criminalise torture to
prevent custodial deaths, http://www.ahrchk.net/statements/mainfile.php/2006state
ments/688/(Visited on January 23, 2010)
 The Hindu, Custodial Torture Worse than Terrorism, http://www.thehindujobs.com/the
hindu/2003/07/27/stories/2003072703510500.htm
Case Laws:
 Maneka Gandhi vs. Union of India – AIR 1978 SC 579
 Francis Coralie Mullin vs. The Administrator Union Territory of Delhi, (1981) 1 SCC 608
 Sunil Batra vs. Delhi Administration – AIR 1978 SC 1675
 Charles Sobraj vs Suptd. Central Jail – AIR 1978 SC 1514
 Rustom Cowvasjee Cooper vs. Union of India – AIR 1970 SC 1318
 Sada Shiv Manohar Parkar vs. State of Maharastra – 1998 Crl. LJ. 3755
 A.R.Antulay vs. R.S.Nayak – (1992) 1 SCC 225
 State of A.P. vs. Challe Ramakrishna Reddy – (2000) 5 SCC 712
 D.K.Basu vs. State of W.B – AIR 1997 SC 619
 State of U.P vs. Deoman Upadhayaya – AIR 1960 SC 1125
 Raja Narayanlal Bansilal vs. Maneck Phiroz Mistry – AIR 1961 SC 29
 Danial H.Walcott vs. Supdt. Nagpur Central - (1972) 74 BOMLR 436
 State of Gujarat vs. High Court of Gujarat – (1998) 7 SCC 392
 Common Cause vs. Union of India – (1996) 4 SCC 33
 Prem Shankar Shukla vs. Delhi Administration (1980) 3 SCC 526
 Hussainara Khatoon vs. Home Secretary, State of Bihar – AIR 1979 SC 1369
 Sheela Barse vs. State of Maharashtra, (1983) 2 SCC 96
 R.D.Upadhyah vs. State of A.P. – AIR 2006 SC 1946
 Hiralal Mallick vs. State of Bihar – AIR 1977 SC 2236
 Sheela Barse vs. Union of India – AIR 1986 SC 1773
 State of U.P. vs. V.Chandrik, 2000 Crl LJ 384 (386)
 State of Gujarat vs. Natwar Harchenji Thakor – (2005) Crl LJ 2957
 Selvi vs. State of Karnataka – (2010) 7 SCC 263
 78

6.10 Model Questions

1. What do you understand by ‘torture’ and discuss the status of human rights in India with
respect to custodial deaths and torture?
2. Critically analyze the various case laws related to the rights of the victims of torture and
custodial deaths.
3. Has India signed and ratified UN Convention Against Torture (UNCAT)? If yes, When?
******
 79

Part-I
Lesson-7

NATIONAL HUMAN RIGHTS COMMISSION

STATE HUMAN RIGHTS COMMISSION

Structure
7.0 Objectives
7.1 Introduction
7.2 Historical Background
7.3 National Human Rights Commission; Powers and Functions
7.4 State Human Rights Commission: Composition, Powers and Functions
7.5 Summary
7.6 References
7.7 Further Readings
7.8 Model Questions
7.0 Objectives
The objectives of this chapter is to:
1. Study the protection of human rights as guaranteed by the constitution or embodied in
the international Covenant under the Protection of Human Right Act, 1993,
2. Analyse the redressal procedure and enforcement of National Human Rights
Commission, State Human Rights Commission under the Protection of Human Rights
Act, 1993,
3. Examine the rule of Judiciary in protection of human rights.
7.1 Introduction
The issue of protection of Human Rights has gained fresh significance due to policies of the
government and contemporary international polities. This movement has gained momentum that
reflects the growing forces of globalization and the desire of all human beings to lead their lives in
freedom and peace. Traditionally, states could treat its subjects as they desired, but after declaration
of Human Rights, how a state treats its own subjects has become the legitimate concern of the world
community.
Human rights are rights which all persons hold by virtue of human condition. They are the
rights and freedoms possessed by human beings. The human rights to which each person is entitled
are rights in international laws.
 80

Definition
Section 2 of the Protection of Human Rights Act, 1993 defines “Human Rights” as the rights
relating to life, liberty, equality and dignity of the individual guaranteed by the constitution of embodied
in the international Covenant and enforceable by courts in India.
7.2 Historical Background
The concept of rights did not appear until the 13th century as the dharma was the core
concept the ancient Indian political thought. The Hindu law began with duties rather than rights as in
the west. The fundamental changes regarding the 'Right of Man' started in the western world by the
writings of Hugo Grotius, the Magna Carta of 1215, the Petition of Rights (1628) and the English Bill of
Rights (1989). They all asserted that human rights are endowed with certain-eternal, basic and
challenable rights. However, human rights came into prominence with the rise of Lockean
individualism who stated that firstly, men enjoyed equal rights under the law of nature; no one could
come under political authority of another except by his own consent. Secondly, the maintenance and
protection of natural rights constituted the primary function of the government. Thirdly, natural rights
set limits to the authority of governments so that a government which violated the rights of its citizens
lost its claim to obedience could be legitimately overthrown. These principles were associated with
assertion of natural rights in American Declaration of Rights of Man and of Citizens (1789). It is this
liberal theory of natural rights from which the 20th century concept of human rights descended. The
Charter of the United Nations which was adopted after the second world War by the San Francisco
Conference (1945) gave due importance to the aim of promoting human rights and freedoms.
Accordingly, the Commission of Human Rights was duly constituted in 1946 under the Chairmanship
of Ms Roosevelt. The Commission prepared a Draft Declaration of Human Rights which was
submitted to the General Assembly by the United Nations in September-1944. After some
amendments in the Draft, the Universal Declaration of Human Rights and Fundamental Freedoms
were adopted. In 1954, the Commission of Human Rights submitted two covenants to the General
Assembly. The first covenant reaffirmed political and civil rights and the second concerned the
economic, social and cultural rights. The .General Assembly adopted them by resolution in 1966
Another resolution in December 1968-it also recognized the subject status of the individuals by
permitting him to petition to the Committee on Human Rights against his own state. These covenants
came into force in 1976 in India, the National Human Rights Commission was constituted in October
1993 under the Human Rights Ordinance of 28th September, 1993 which was soon after enacted as
the Protection of Human Rights Act, 1993.
7.3 National Human Rights Commission
It is a fully autonomous body which provides justice to those whose human rights are infringed
by authorities who tend to misuse their powers given to them by the constitution. Following are the
main features of the National Human Rights Commission.2
Composition
The composition of the Commission consists of eight members including the Chairman who
has been a Chief Justice of the Supreme Court; one Judge of the Supreme Court; one Chief Justice
of a High Court; two members having knowledge or practical experience in matters relating to human
rights and Chairperson of the National Commission for minorities, the National Commission for the
Scheduled Castes, National Commission for Scheduled Tribes and the National Commission for
Women for the discharge of certain functions. A Secretary-General of the rank of the Secretary to the
Government of India functions as the Chief Executives Officers,
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Appointment
The appointments made by the President on the recommendations of a Committee consisting
of the Prime Minister who is the Chairman, Speaker of the House of the people, Minister in charge of
the Ministry of Home Affairs in the Government of India, Leader of the Opposition in the House o the
people, Leader of the Opposition in the Council of States and Deputy Chairman of the Council of
States. However, no sitting Judge of the Supreme Court or a sitting Chief Justice of a High Court can
be appointed without consultation with the Chief Justice of India.
Removal
The Chairperson or any other Member of the Commission can be removed from his office by
an order of the President on the ground of proved misbehaviour or incapacity after the Supreme
Court, on an inquiry held in his recommended such removal.
Term
The term of office of the Chairperson and members is five years or until the age of 70 years,
whichever is earlier, on ceasing to hold office, the Chairperson and Members arc ineligible for further
appointment under the government of India or of any state.
Officers and other staff of the Commission
The Act provides the Secretary-General, the Central Government should make available to the
Commission such police and investigative Staff and an officer not below the rank of Director-General
of Police and such other officers and staff necessary for the efficient performance of the functions of
the Commission. The Commission has the power to appoint other administrative, technical and
scientific staff considered necessary in conformity with the Rules made by the Central Government in
this behalf.
Functions of the Commission
The following are the functions of the Commission :
(a) To inquire on its own initiative or on a petition presented to it by a victim or any persons
on his behalf, into complaints of violation of human rights or abetment and negligence in
the prevention of such violation, by a public servant.
(b) To intervene in a proceeding involving any allegation of violation of human rights pending
before a court with the approval of such court.
(c) To 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 conditions of the inmates and
make recommendations.
(d) To review the safeguards provided by the Constitution or any law for the protection of
human rights and recommend measures for their effective planning.
(e) To review the factors, including acts of terrorism that inhibit the enjoyment of human
rights and recommend appropriate remedial measures.
(f) To study treaties and other international instruments on human rights and make
recommendations for their effective implementation
(g) To undertake and promote research in the field of human rights.
 82

(h) To spread human rights literacy among various sections of society and promote
awareness of the safeguards available for the protection of these rights through
publication, media and seminars.
(i) To encourage the efforts of no-governmental organizations and institution working in the
field of human rights.
(j) To promote human rights.
Powers relating to inquiries.
The Commission is vested with the wide ranging powers relating to inquiries and investigation
under the Act. While inquiring into complaints under the Act, the Commission could exercise all the
powers of a civil court trying a suit under the Code of Civil Procedure. 1908, and in particular of the
following :
(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) any other matter which may be prescribed.
Investigating Staff
The Commission has its own investigating staff or investigating into complaints of human
rights violations. Under the Act, it is also open to the Commission to utilize the services of any officer
or investigating agency of the Central Government or any State Government, in addition, the
Commission envisages the association the appropriate cases of outsiders as investigators observers.
Procedure for dealing with Complaints
The complaints lodged in the Commission can be in Hindi, English or any language included in
the Eighth schedule of the constitution. The Complaints are registered and assigned a number and
placed or admitted as per the direction of the Chairperson before a Single Member bench within a
week of receipt. If the member is of the opinion that a matter involve: Important issues it is referred to
a bench of two or more members with the permission of the Chairperson.
Complaints 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 or;
e) which are outside the preview of the Commission.

Inquiry into Complaints

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The Commission, while inquiring into complaints of violations of human rights can call for
information or report from the Central Government or any Government or any other authority or
organization subordinate thereto within such time as may be specified by it. If the information or report
is not received within the time specified time by the Commission, it can proceed to injure into the
complaint on its own. Moreover, 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 concerned
Government or authority it can proceed with the complaint and inform the complainant accordingly.
The Commission may take any of the following steps after the inquiry :
1. where the inquiry discloses the Commission of violation of human rights or negligence in
the prevention of violation of human rights by a public servant, it can recommend to the
concerned Government or authority the initiation of proceedings for prosecution or action
as the Commission may deem fit against the concerned person;
2. Approach the Supreme Court or the High Court concerned for directions, orders or writs
as that Court may deem necessary;
3. Recommend to the concerned Government or authority for the grant of immediate interim
relief of the victim or the members of his family;
4. subject to the provisions of clause (5) provide a copy of the inquiry report to the petitioner
or his representatives;
5. the Commission shall send a copy of its inquiry report together with its recommendations
to the concerned Government or authority shall, within a period of one month, or such
further time as the Commission may allow, forward its comments on the report, including
the action taken or proposed to be taken thereon, to the Commission;
6. the Commission shall publish its inquiry report together with the comments of the
concerned Government or authority, if any, and the action taken or proposed to be taken
by the concerned Government or authority on the recommendations of the Commission.
Procedure with respect to armed forces
The Commission also deals with complaints or violation of human rights by members of the
armed forces either on its own motion or on receipt of a petition from the Central Government. After
the receipt of the report, it may not proceed with the complaint or make its recommendations to that
Government. Henceforth, the Central Government informs the Commission of the action taken on the
recommendations within three months or further time as the Commission may allow and the
Commission publishes its report together with its recommendations and a copy of the report is
provided to the petitioner.
The Act further provides that the Central Government/ State Government/ Authority has to
indicate its decision within a period of one month in respect of general complaints and within three
months relating to armed forces.
The Commission is also required to submit an Annual Report to the Central Government as
well as the State Government concerned. Besides, the Commission can any time submit Special
Reports of the Commission along with a memorandom of action taken or proposed to be taken on the
recommendations of the Commissioner and the reasons for non-acceptance of the recommendations.
 84

Self Assessment Questions:

1. Write any two functions of National Human Rights Commission.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2. Write the appointment procedures of National Human Rights Members.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

7.4 State Human Rights Commissions

State human Rights Commissions as provided under the Act are to be constituted by the
respective State Governments.3
Composition
The Chairperson and Members of the Commission are appointed by the Governor on the
basis of recommendations of a Committee comprising the Chief Minister as the Chairperson, the
Speaker of the legislative assembly, the minister in charge of the Department of Home in the State,
the leaders of the opposition in the Legislative assembly as Members.
The Commission performs the following functions:
1. Inquire, on its own initiative or on a petition presented to it by a victim or any person on
his - behalf, into complaint of :
a) violation of human rights or abetment
b) negligence in the prevention of violation by, a public servant;
2. intervene in any proceeding involving any allegation of violation of human rights pending
before a court with the approval of such court;
3. visit, under intimation to the State Government, any jail or any other institution under the
control of 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 conditions of the inmates and make
recommendations thereon;
4. Review the safeguards provided by or under the Constitution or any law for the time
being in force for the protection of human rights and recommend measures for the
effective implementation
5. Review the factors, including acts of terrorism that inhibit the enjoyment of human rights
and recommend appropriate remedial measures;
6. Study treaties and other effective implementation;
7. Undertake and promote research in the field of human rights;
 85

8. 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;
9. Encourage the efforts of non-governmental organizations and institutions working in the
field of human rights;
Such other functions as it may consider necessary for the promotion of human rights. While
inquiring into complaints under the Act, the Commission has all the powers of a civil court trying a suit
under the Code of Civil Procedure, 1908, and in particular the following, namely
1. Summoning and enforcing the attendance of witnesses and examining them on oath;
2. Discovery and production of any document;
3. Receiving evidence on affidavits;
4. Requisitioning any public record or copy thereof from any court or office;
5. Issuing commissions for the examination of witnesses or documents;
6. Any other matter which may be prescribed.
The Commission has its own investigating staff for investigation into complaints of human
rights violations. Under the Act, it as open to the Commission to utilize the services of any officer or
investigation agency or the Central Government or any State Government with the concurrence of the
center government or the State Government.
The Commission while inquiring into complaints of violations of human rights may call for
information or report from the Central Government or State Government or any other authority
subordinate to it within specified time but on falling to provide information the Commission can
proceed on its own. On the other hand if on receipt of information, the Commission is satisfied either
that no further inquiry is required or that the required action has been initiated by the concerned
Government or authority, it may not proceed with the Commission may deem fit against the
concerned person or persons.
The Commission may take any of the following steps upon the completion of an inquiry:
1. Where the inquiry discloses me commission of violation of human rights 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 fir 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 authority/State Government has to indicate its comments/action taken on the
port/recommendations or the Commission within a period of one months in respect of general
complaints.
 86

7.5 Summary
The procedure of seeking justice is simple and inexpensive as no fee is charged on
complaints, it is open to the Commission to ask for affidavits in support of allegations, it can also
accept agraphic and fax complaints. The Commission has power to dismiss a complaint in liming or it
can seek inquiry or investigation. During investigation it can call for reports from the concerned
Government authority-on the basis of which report may be prepared. The Commission also has the
power of personal hearing and can call for records and examine witnesses in connection with it. It
may provide a reasonable hearing including cross examining witnesses in support of the complain
and leading of dence in support of whose conduct and reputation is affected.
7.6 References
Aruna Ray, National Human Rights Commission in India, Formation, Functioning and Further
Prospects (Atlantic, New Delhi) 2009.
7.7 Further Readings
• Durga Das Basu, Human Rights in Constitutional Law (Prentice Hall, New Delhi) 1994.
• National Human Rights Commission Annual Reports available at nhrc.nic.in.
7.8 Model Questions
1. Discuss the composition and functions of National Human Rights Commission in India.
2. Do you think Human Rights Commissions are working effectively to protect and promote
the rights of people in India? Comment.

*****
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Lesson-8

National Commission for Women6

Structure
8.0 Objectives
8.1 Introduction
8.2 Historical background
8.3 National Commission for Women-a statutory body
8.4 The Genesis of National Commission for Women
8.5 Composition, Organizational Structure and Powers of the Commission
8.6 Term of office and conditions of service of Chairperson and members
8.7 Functions of the Commission
8.8 Critical Analysis
8.9 Suggestions
8.10 Summary
8.11 References
8.12 Further Readings
8.13 Model Questions
8.0 Objectives:
The objective of this chapter is:
1. To understand the need for the establishment of the Commission for the Rights of the
women.
2. To examine the mandate given in the National Commission for Women Act,1990 and the
basic administrative set up of the Commission.
8.1 Introduction:
The Indian Constitution guarantees justice and equality in all the segments of our society
irrespective of caste, creed, religion, colour and gender. A number of legislations have been enacted by
the central and state governments to safeguard the interests of women and amendments have been
made in the existing laws with a view to handling crimes against women. Despite these measures,
crimes against women continue to haunt our society7.
In order to understand the civilization of a country, the best way is to look at the status and
position of women. Indian women have come a long way. They were sages and scholars in Rig Vedic
period and today they have entered the arena of armed forces, IT sector, and police, navy and are
 88

occupying key positions. But this journey was not easy. They have fought against patriarchal society in
order to emerge as stronger and independent entities. But the evils of ignorance, subordination,
illiteracy, sexual harassment, rapes, dowry deaths, acid attacks, sexual harassment at work place,
domestic violence etc. are still prevalent against women in our society.
8.2 Historical background:
Indian society has experienced and experimented a wide variety of forms and modes of
organization on the question of women’s status in the society. An Indian experience regarding women’s
advancement is to be seen in the context of constitutional commitment to equality and justice. The
emerging concepts and approaches in India has also been influenced by the national and international
laws.It is important to note that in the period of 1970’s women’s movements across the globe gained
momentum and women’s issues were vociferously raised. The state was to take the responsibility to
achieve the objective of gender equality. In 1971, government constituted a national level committee to
review the status of women in India under the directions of United Nations. The job was assigned to the
Department of Social Welfare. The minister in charge of social Welfare Phulrenu Guha was given the
responsibility. She proposed that Commission of inquiry shall be constituted as this kind of study has
not been done with respect to women but to other sections of the society.
The national level committee on the status of women in its report highlighted the inequalities by
women in the areas of employment, health, education and failure on the part of the government to
apply rights guaranteed in Indian constitution. Several other issues such as not an acknowledgment of
women’s work, women had been increasingly viewed by the planners as not being in need of an
independent livelihood, to the point where women's decreasing work participation rate and share of
employment increasing poverty and insecurity in sectors of the economy in which they used to
dominate earlier (forestry, agriculture, livestock, cottage industry, sericulture, fisheries etc.) were not
even viewed as problems requiring change. 3Further it was viewed that an integrated approach is need
when any policy or action programme is adopted for the emancipation and development of the
programme.The major recommendation was that national policy on women’s development must be set
up. It was suggested that follow up mechanisms and processes must be taken up by the state to look
into the issues and to achieve the goals of equality and justice enumerated in Indian constitution.
The operationalisation of the recommendations of the Committee on the Status of Women in
India (CSWI) required new approaches and institutional support to translate intent into action. The
Parliamentary debate on the CSWI Report concluded in a very wide mandate to the government “to
remove all disabilities that Indian Women suffer from”. What followed was the process of formation of
National Machinery embedded within the larger structures of government. At the same time, at the
international level the UN led policy initiatives both in terms of requesting the countries to bring out
status reports on women in various countries and following that asking them to create institutional
mechanisms at the national and international levels to follow up the recommendations of these reports,
led to the establishment of different kinds of structures within the governmental bureaucracy to look
after women’s interests as chalked out in the various policy documents of the government. The term
that was used as these structures/mechanisms evolved with the objective of supporting and monitoring
women’s development was “National Machinery”.4 At the international level three world conferences
(1975 Mexico, 1980 Copenhagen, and 1985 Nairobi) provided strength to the setting up of institutional
mechanisms at the national level, to promote the status of women.
During the period of 1975-1985, women were viewed as targets of social welfare measures in
the process of development and empowerment. It was argued that women are just recipients of welfare
but they need to make a part of development process. It was termed as women in Development (WID)
 89

and later as Gender and Development (GAD).It can be achieved by way of promotion of education,
employment of opportunities etc.
A new slogan of ‘gender mainstreaming’ was raised whereby special attention was paid towards
the role and structure of national machinery to mainstream women’s issues. Thus during this period
women’s interests in all areas and sectors was institutionalized. It was a major concern to women’s
movements worldwide. It was emphasized that state is to take the responsibility to promote gender
equality. The idea is to reflect gender perspective in all government policies and programs since then
the forums at international and national level have focused on the role of offensive machinery. The
important task of national machineries is to represent women’s interest at different levels of
governance.
The UN Commission on Status of Women (CSWI) recommended the establishment of national
commission which is to play a multiple role in promotion and protection of the rights of the women. In
India the important recommendation of CSWI was to frame a national policy for women in order to
prevent any ambiguity. Subsequently in 1976, national plan for action the term ‘machinery for
implementation’ was used. However, the CSWI Report had not used the term ‘machinery’ but had
called it “agencies for co-ordination, communication and implementation of measures to improve the
status of women” while recommending the setting up of statutory, autonomous Commissions at the
central and state levels.5
In January 1985 a Department of Social and Women’s Welfare was formed and for the first time
‘women’ were emphasized as a special component of a newly formed department. But women were still
linked with disadvantaged and handicapped groups. In the same year due to pressure of the Nairobi
decade conference in July 1985 and the awareness generated by it led to the creation of a separate
Department of Women and Child Development. This was followed by a number of special structures for
women such as Divisions (The Women’s Division in NIPCCD), cells (Labour Ministry, Ministry for
Science and Technology, Ministry for Rural Development, Ministry of Industrial Development, NCERT,
Ministry of Agriculture), parallel women-specific agencies (such as Women’s Directorates in the states
in place of umbrella directorates for social welfare) separate institutions for economic advancement of
women (such as the Women’s Development Corporations, Rashtriya Mahila Kosh) and finally the
national and state Commissions both statutory and non-statutory.
There were several short term committees which were meant for specific tasks such as
investigation into a particular aspect of the women’s question (study of women prisoners and women in
custodial situations, women workers in the unorganized, informal and self-employment sectors) or to
help plan formulation and policy-making (Planning Commission working Committees and groups on
women’s employment, organizations for rural women, status of women in science and technology
establishment) etc. All these have formed an important part of mainstreaming and institutionalizing
women concerns in public and political agenda. The creation of a National Committee headed by the
Prime Minister can be seen in this light6. It met only twice and even its recommendation with regard to
comprehensive child care system and reservation for women in Parliament are still to see the light of
the day.

8.3 National Commission for Women-a statutory body7

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The National Commission for Women was constituted in 1992 as a statutory body in pursuance
of the National Commission for Women's Act 1990 to safeguard the interests of women. The major
focus is of the Commission is :
a) To review the Constitutional and Legal safeguards for women
b) To recommend remedial legislative measures
c) To facilitate redressal of grievances and
d) To advise the Government on all policy matters affecting women.
It is apparent that it has a wide mandate covering almost all aspects of women's development
from investigating and examining the legal safeguards provided for women under the Constitution and
other laws affecting women and recommend amendments to meet any lacunae, inadequacies or
shortcomings in such laws.

8.4 The Genesis of National Commission for Women

The major demand for setting up of National Commission for Women(NCW) was raised in 1974
in India by the Committee on Status of Women(CSW).The commission recommended that there should
be broad based women’s organization, trade unions, legal and legislative bodies and experts from the
field of law,health,eduction,social research, planning and administration. It was suggested that majority
of the members of the Commission should be women.8 There was no action taken on establishing the
Commissions for the next decade and a half. Meanwhile the governments did take certain policy
measures and created certain mechanisms to look into the issues and concerns of women. The
imposition of internal emergency in 1975 slowed down the process of a follow up action of the report. In
1981, Joint Committee of Parliament to review rape and dowry laws among other things recommended
the setting up of a National Commission for Women with statutory powers both at the Centre and State
levels.9
No steps were, however, taken to implement this recommendation by the then government. In
1988, in the National Perspective Plan a proposal for Commissioner within the Department of Women
and Child Development surfaced. The women’s groups saw the creation of the position of a
Commissioner for women’s rights as negation of their long standing demand for the setting up of a
national and autonomous commission for women. In their critique of the National Perspective Plan, they
very clearly made their position clear.10 The demand for setting up of an autonomous National
Commission for Women started gaining ground. It was in 1990, that the Government of India decided to
set up a National Commission for Women. In addition to national and international factors, discussed
earlier there were also political factors that motivated the creation of the NCW at this point of time.
Because of the successful politicization of women issues by the women’s movements, it was no longer
possible for the political parties to ignore women as a political constituency. While as a result of the
women’s movement women’s issues became part of the public and political agenda of political parties,
 91

it was also a fact that the movement was also facing newer challenges, as the whole gender question
seemed to become more and more complex. Though many of the issues were still the same, in the
changed political context, the interventions demanded were of a different nature11.
After the passing of the National Commission on Women Act in August 1990, it took almost one
and a half years for the central government to actually set up the Commission. The reasons lay in the
rapid political changes taking place at that time. The women's organizations too did not want the
Commission to be constituted at that time as they apprehended that political factors may influence the
composition of the Commission. The apprehensions of the women’s organizations were not ill founded
and that became amply clear when the caretaker government in 1991 tried to finalize the panel for the
First Commission just two weeks before the general elections were announced. It was only because of
the immediate intervention by the women’s organizations that no further action was taken on this. In the
interim period several attempts were also made by the then government to block the setting up of such
a Commission, sometimes by floating the abandoned proposal of appointing a Commissioner instead of
a Commission and at others by announcing the setting up of two commissions, one to protect women’s
rights and the other to study women’s status and problems. The women’s organizations had to put up
another fight to get the already passed Act implemented. In a memorandum to the Prime Minister
outlining the difference between the Commission as envisaged in the Act and the Commissioner being
proposed, the women activists argued that ‘it is not a question of semantics but of diametrically
opposed concepts which could neither be amalgamated nor be a substitute for each other.’12 It was
also argued that it was obligatory on the government to set up the Commission as committed in the
Parliament and once constituted the Commission can decide whether to create another office. Despite
all these representations and arguments, the then government announced the setting up of two
Commissions - one to protect the rights of women and the other to study women's status and problems.
The women representatives in the Parliament and the women's organizations finally took the technical
position that National Commission for Women Act, having been passed by the Parliament. It was
incumbent on the Government to consult the Commission before taking many initiatives with regard to
women like setting up of new Commissions or Commissioner for Women’s rights. 13
The process of constitution of the commission reflected the differences between the government
and women’s organizations. The women groups wanted not only that the commission be given
adequate powers but also as an independent and autonomous body.
8.5 Composition, Organizational Structure and Powers of the Commission:
The Commission consists of a Chairperson and five members to be nominated by the Central
Government. There is also a member secretary, a member of civil service and an expert in the field of
management, organizational structure or sociological movement (though it is not clear what an expert in
organizational structure or sociological movement means) who is nominated by the Central
government8. According to the NCW Act, all orders and decisions of the Commission shall be
authenticated by the Member Secretary or any other officer of the Commission duly authorized by the
member secretary in this behalf. The Commission is empowered to appoint such committees as may
be necessary for dealing with such special issues as may be taken up by the Commission from time to
time. The Commission has the power to co-opt as members of any such committee such number of
persons as it thinks fit. These persons are not members of the Commission, but have the right to attend
the meetings of the committee but do not have right to vote. The Commission has a library and a
 92

research unit. The Commission also constituted a complaints unit to look into complaints of women. To

Self Assessment Questions:

1. What is NCW?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2. Is National Commission for Women a statutory body?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

this unit a counseling cell was added in 1996.

8.6 Term of office and conditions of service of Chairperson and members15:

(1) The Chairperson and every member shall hold office for such period, not exceeding three
years, as may be specified by the Central Government in this behalf.
(2) The Chairperson or a Member (other than the Member-Secretary who is a member of a
civil service of the Union or of an all-India service or holds a civil port under the Union)
may, by writing and addressed to the Central Government, resign from the office of
Chairperson or, as the case may be, of the Member at any time.
(3) The Central Government shall remove a person from the office of Chairperson or Member
referred to in sub-section (2) if that person has:-
(a) become an undischarged insolvent
(b) got convicted and sentenced to imprisonment for an offence which in the opinion of
the Central Government involves moral turpitude
(c) become of unsound mind and stands so declared by a competent court
(d) refused to act or becomes incapable of acting
(e) without obtaining leave of absence from the Commission, absent from three
consecutive meetings of the Commission
(f) in the opinion of the Central Government has so abused the position of Chairperson
or Member as to render that person's continuance in office detrimental to the public
interest:
It is further provided that no person shall be removed under this clause until that person has
been given a reasonable opportunity of being heard in the matter.
8.7 Functions of the Commission:
Chapter III of Act enumerates the functions of the Commission.
 93

According to the Section 10(1) of the Act, the Commission shall perform all or any one of the
following functions:
• To investigate and examine all matters relating to safeguards provided for women under
the Constitution and other laws
• To present to the Central government, annually and at such other times as the
Commission may deem fit, reports upon the working of those safeguards
• To make in such reports recommendations for the effective implementation of those
safeguards for improving the conditions of women by the Union or any State
• To review from time to time, the existing provisions of the Constitution 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
• To take up the cases of violation of the provisions of the Constitution and other laws
relating to women with the appropriate authorities
• To look into complaints and take suo moto notice of matters relating to deprivation of
women's rights, non-implementation of laws enacted to provide protection to women and
non-compliance of policy decisions, guidelines or instructions aimed at mitigating
hardships and ensuring welfare and providing relief to women.
• To 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.
• To 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 and technologies
for reducing drudgery and occupational health hazards and for increasing their productivity
• To participate and advise on the planning process of socio-economic development of
women
• To evaluate the progress of the development of women under the Union or any State
• To inspect or cause to be inspected a jail, remand home, women's institution or other
place of custody where women are kept as prisoners or otherwise, and take up with the
concerned authorities for remedial action, if found necessary.
• To fund litigation involving issues affecting a large body of women.
• To make periodical reports to the Government on any matter pertaining to women and in
particular various difficulties in which women toil.
• Any other matter which may be referred to it by the Central Government.
The listing of Commission's duties indicates that it has been assigned a very large range of
responsibility that gives it a fair degree of autonomy as well as space for interpreting its field of action.
At the same time, combining the investigative, monitoring, evaluative, advisory, and remedial and
awareness generation roles may also have the result of the Commission having a diffused focus.
 94

As an investigative agency, the commission has the powers to investigate and examine all
matters relating to safeguards provided for women under the Constitution and other laws and to look
into specific problems and situations arising out of discriminations and atrocities against women.
While investigating any matter it can exercise the powers of a civil court to summon and enforce
attendance of any person, ask for discovery or production of any document, public record and evidence
on affidavits. It has power of issuing commissions for examination of witnesses and documents.
National Commission for Women tackles the problems by ensuring that investigations by the
police are expedited and monitored. Family disputes are resolved or compromised through counseling.
As per the 1997 Supreme Court Judgment on Sexual Harassment at Workplace,(Vishakha Vs. State of
Rajasthan) every employer is required to provide for effective complaints procedures and remedies
including awarding of compensation to women victims. In sexual harassment complaints, the
concerned organizations are urged to expedite cases and the disposal is monitored. For serious
crimes, the Commission constitutes an Inquiry Committee which makes spot enquiries, examines
various witnesses, collects evidence and submits the report with recommendations. The
implementation of the report is monitored by the commission16.
In its advisory role, the Commission is to participate and advise on the planning process of
socio-economic development of women. The commission is empowered to undertake research and
special studies or investigations into specific problems or situations arising out of discrimination and
atrocities on women and recommend measures to deal with these. Through its annual and other
reports it can make recommendations for the effective implementation of safeguards provided to
women in the Constitution. It has a specific task of recommending amendments to meet any lacunae,
inadequacies or shortcoming in the existing legislations. The Commission has so far reviewed about 23
laws and made more than 700 recommendations to the government. The Commission has also brought
out many special studies17.
As a watchdog body, the commission can look into and take suo moto notice of matters relating
to non-implementation of laws enacted to provide protection to women and non compliance of policy
decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing
relief to women. It has the power to evaluate the progress of the development of women under the
Union or any state. It is mandatory for the Central Government to consult the Commission on all major
policy matters affecting women. It also has the power to take up cases of violation of provisions of the
constitution and other laws relating to women with the appropriate authorities.
The Commission is expected to prepare an annual report and submit it to the central
government18. The central government shall cause the annual report together with a memorandum of
action taken report on the recommendations of the commission be laid before each House of
Parliament or in case of non-compliance, the reasons for not accepting the recommendations.
One of the important functions of the Commission is to review from time to time the existing
provisions of the Constitution and other laws affecting women and recommend amendments there, so
as to suggest remedial measures to meet any lacunae, inadequacies or shortcomings in such
legislation. The Commission has reviewed and suggested remedial legislative measures to 23 laws and
sent their recommendations to Department of Women and Child Development (DWCD). According to
the report of the Parliamentary Committee on Empowerment of Women (2001-2002), out of the 23
Acts, cabinet notes in respect of 4 Acts have been prepared and are under consideration in respect of
two Acts the amendments are being finalized and in respect of remaining Acts, the DWCD was
consulting other concerned Ministries/Departments of Government of India.19
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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 Lakshadweep 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 effective20.
The Chairperson, the Members, officers and other employees of the Commission shall be
deemed to be public servants within the meaning of Section 21 of Indian Penal Code (45 of 1860)21.
Key Recommendations of the National Commission for Women22:
 Women need equality in the family and in the society, for this purpose there is a need for
change in the perception of the community through awareness generation.
 Girl’s education should be given importance, because it plays important role to empower
women.
 Awareness level about women’s rights was found very low. Therefore there is a need to
organize awareness programme from time to time.
 Health related facilities should be increased for women at village level.
 Women need to be given incentive to increase their activities.
 Work to eliminate evils like gender difference, dowry system etc. need to be done.
 For the real empowerment of women and to establish equality in the society it is necessary to
empower women economically. Women share in the family property should be ensured.
8.8 Critical Analysis:
The other side of the coin is that though the Commission was created with a lot of hope and
expectation on the part of the women's movements, it has not lived up to these expectations. As the
Commission stands today, though it needs both support and legitimacy for its work from the women's
organizations, the fact of the matter is that it stands distanced from them. The organizations feel
disappointed and frustrated over the functioning of the Commission for a range of reasons and it is
noteworthy that the organizations had started raising their concerns within a year of the Commission's
working, through letters written to the Commission. There were complaints and dissatisfaction over the
manner of response of the commission over various issues that has been at variance with their feminist
politics, over the fact that the Commission has been ignored by the government on policy issues and
over the ad hoc manner in which the women's groups have generally been asked be part of any
consultative process. The most important issue has been with regard to the status and autonomy of the
Commission resulting from its position as stipulated in the Act.
The Commission lacks autonomy and in the performance of its role has been restricted by its
institutional design. The manner of its composition has disabled it in developing into an autonomous
body and has affected the quality of its work too. The commission Act does not lay down any minimum
requirement for members and has not stipulated a procedure of selecting the members with the result
that the selection process is in total control of the party in power. This process has failed to ensure the
selected persons are known for their work in the field. They are all essentially government and political
nominees. The Commission has tried to review, investigate and examine government policy at different
 96

levels and, though with a very limited success due to the lack of political will on the part of the
government and political leaders. Finally, it has also tried to establish links with regional, state level and
international bodies engaged in lobbying for the advancement of women. The Commission can
definitely use its position through its mechanisms of reporting and by taking firm stands on issues to
contribute to and guide debates at the level of society and policy makers on issues of social concerns.
The range of work that the commission is doing affects its performance9. More infrastructure and
decentralization of work is required.
 Furthermore the Commission has no concrete legislative powers. It can only make
recommendations and submit reports. Such reports or recommendations are not binding
on state or union governments.
 The commission’s jurisdiction is not operative in Jammu and Kashmir and in context of
political unrest and violations of rights of women the presence of commission is
essential.
Mamta Sharma, the ex-chairperson of the commission also emphasized the need to empower
the panel, including with powers to punish and more funds for the commission. "After any incident, we
call up the concerned state. Then what? We have no powers to ensure our recommendations are
implemented. Nothing that the Commission recommends is bounden on any IAS or IPS officer. So,
nobody takes them seriously," said Sharma. For instance, the commission has written series of letter to
West Bengal chief minister Mamata Banerjee following several incidents of rapes in the state. "But, we
are yet to get any reply from West Bengal," said Sharma. In case of any complaint, the NCW can only
summon the accused. "After that our hands are tied. We have no powers to punish or penalise
anyone," said Sharma24. Earlier, Sharma had written to various ministers, including PM manmohan
Singh, seeking funds for the commission. She had demanded the Centre allocate at least Rs 100 crore
from the Nirbhaya Fund to the cash-strapped commission25. It is heartening to note that recently a good
step in the right direction has been take by Narendra Modi government to empower this so called
toothless body,whereby the present government has agreed in principle to empower the National
Commission for Women, tasked to protect women against all types of aggression, with the authority to
order police to arrest repeat offenders, probe a crime and seek report like a criminal court. Like a
criminal court, the NCW with the proposed powers can fix a time limit for police to investigate a crime
and submit its report before the designated court. This would ensure that police exercised no lethargy
in investigating crimes against women26.
In November, 2014 the National commission for women was in news because National
Commission for Women (NCW) chief Lalitha Kumaramangalam favoured the proposal for legalizing
prostitution in India which was proposed to be placed before the Supreme Court constituted panel. It is
worth noting that the apex court had constituted the panel after public interest litigation was filed 2010
on rehabilitation of sex workers. The panel has to make certain recommendations for the possible
amendments in Immoral Traffic (Prevention) Act, 1956 (ITPA) in the light of conditions conducive for
sex workers to live with dignity in accordance with the provision of article 21 of the constitution. 27
8.9 Suggestions:
1. The post of the chairperson of the National Commission for women be given the status of
Union Cabinet Minister and the members that of minister of state. In this way the
recommendations of the commission will have more force.
2. The commission must be given the power to select its own members
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3. In order to promote smooth functioning of the commission, it must be allocated funds in

the Union as well as the state funds.
8.10 Summary
The complaint received by the commission show the trend of crimes against women and
suggest systemic changes needed for reducing them. The complaints are analyzed to understand the
gaps in the routine functioning of government in tackling violence against women and to suggest
correctional measures. The complaints are also used as case studies for sensitization programmes for
the police, judiciary, prosecutors, forensic scientists, defense lawyers and other administrative
functionaries28.
From time to time the Commission conducts seminars, workshops and conferences and sponsors
such events by providing financial assistance to research organizations and NGOs. The important
areas so far covered include women in detention, violence against women, sexual harassment at work
place, educational, health and employment aspects, women in agriculture and panchayati raj sector,
custodial justice and mental health institutions.
Recently, at the Moradabad rally, Mulayam Yadav had questioned the death sentence handed
out to three men convicted in two Shakti Mills gang rape cases in Mumbai. "Should rape cases be
punished with hanging? The answer was “Ladke, ladke hain. Galti ho jati hai (Boys are boys, mistakes
happen sometimes)," and it sparked widespread controversy. The Commission took cognizance of
media reports about Yadav's remarks at an election rally in Moradabad and wrote to the Election
Commission seeking action against him for violation of the model code of conduct. The commission’
chairperson Mamta Sharma also wrote to UP Chief Minister Akhilesh Yadav for taking necessary action
as per law.10Similarly, the National Commission for Women has issued a notice to yoga guru Baba
Ramdev for his `honeymoon remarks` against Congress Vice President Rahul Gandhi that has
triggered a major controversy30.
The commission holds public hearings on issues affecting large sections of women such as
crime against women, women in unorganized labour sector, women in agriculture and women of
minority groups. The deposition at these enquiries helps in appreciating the problems and initiating
remedial action. As a measure of arousing public awareness and breaking bureaucratic apathy, public
hearings under vigilant activists like Justice V.R. Krishna Iyer and Swami Agnivesh were held to
understand problems and expedite solutions in the case of Kol women of Bundelhekhand; deserted
women of hill districts in U.P., rape case of girl children of Tamil Nadu, unorganized women labour and
minority communities of Tamil Nadu creche workers’ enquiry and tribal women of Dindigul, Tamil
Nadu.31
8.11 References:
1. http://ncw.nic.in/AnnualReports/200910/Eng/Recommendations.pdf accessed on 14th
May,2014
2. Towards Equality, Report of the Committee on the Status of Women in India, Department of
Social Welfare, Ministry of Education and Social Welfare, Government of India, 1974,Chapter
2
3. As a concept, the term national machinery was defined in a paper prepared by the secretariat
of the Centre for Women’s Advancement located in Vienna. In this paper, the Secretariat
says, "Two different concepts need to be distinguished - a national machinery and a national
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focal point. National machinery is a complex organized system of bodies often under different
authorities but recognized by the government as the institutions responsible for issues relating
to women”. See “Institutional Mechanisms for Women’s Development” Institute of Social
Studies Trust, Women’s Studies Resource Centre, 1995, New Delhi.
4. CSWI Report, Chapter 9.
5. Gender and Governance – A Country Paper, India, CWDS, New Delhi, 2001, at 63-67
6. Hereinafter referred as ‘the Commission’
7. Two members of the Committee, Urmila Haksar and Sakina A. Hasan were not in favour of
this decision.
8. General Recommendations of the Report of the Joint Committee of the Houses of Parliament to
examine the question of the working of the Dowry Prohibition Act, 1961, p.341, dated 10th August,
1982
9. Refer Draft National Perspective Plan 1988-2000: A Perspective from Women’s Movement
10. Sadhna Arya,The National Commission for Women: A study in Performance available at
http://www.cwds.ac.in/OCPaper/NCWreport.pdf accessed on12th May,2014
11. See Memorandum to the Prime Minister dated October 1991 by Seven National Women’s
Organizations, and an
12. undated booklet titled “Why the National Commission for Women, brought out by the same
Women’s Organizations
13. Resolution dated 20th November 1991 by National Convention of Women's Organizations and
Lok Sabha Debates, 22nd November 1991
14. Section 3 of National Commission for Women Act,1990
15. Section 4 of National Commission for Women Act,1990
16. Supra note 10
17. Supra note 10
18. Section 13 of National Commission for Women Act,1990
19. Supra note 10
20. http://www.indg.in/social-sector/women-and-child-development/1the-national-commission-for-
women.pdf accessed on 14th May,2014
21. Section 15 of National Commission for Women Act,1990
22. http://ncw.nic.in/AnnualReports/200910/Eng/Recommendations.pdf accessed on 14th May,
2014
23. Ibid
24. http://timesofindia.indiatimes.com/india/National-Commission-for-Women-seeks-more-power-
funds/articleshow/29681012.cms accessed on 12th May,2014
25. NCW likely to get criminal court powers, The Times of India , October 19,2014
26. Proposal to legalize prostitution to be placed before SC panel: NCW,The Times of India,29th
October,2014
 99

27. http://pib.nic.in/feature/feyr2002/fmar2002/f050320021.html accessed on 12th May,2014

28. http://timesofindia.indiatimes.com/home/lok-sabha-elections-2014/news/NCW-asks-Mulayam-
to-explain-rape-comment-in-3-days/articleshow/33629809.cms accessed on 13th May,2014
29. http://zeenews.india.com/tags/National-Commission-for-Women.html
30. Ibid
8.12 Further Readings
1. Sadhna Arya, National Commission for Women, Economic and Political Weekly, Vol. 48,
Issue 18, May 2013.
2. Reports of National Commission for Women, available at ncw.nic.in.
8.13 Model Questions
1. Discuss the major functions of the National Commission of Women?
2. What is the composition of the National Commission of Women? Explain the term of
office conditions of service of Chairperson and members.
3. Do you think that National Commission of Women is working effectively for the
promotion and protection of the rights of the women in india? Elucidate.
*****
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Lesson-9

National Commission for Protection of Child Rights (NCPCR)11

Structure
9.0 Objectives
9.1 Introduction
9.2 Meaning of Child
9.3 Composition
9.4 Functions and Powers
9.5 State Commission for protection of Child Rights
9.6 Finance, account and audit
9.7 Right to Education and NCPCR
9.8 Protection of Children from Sexual Offences (POCSO) and NCPCR
9.9 Child Labour (Prohibition and Regulation) Act 1986 and NCPCR
9.10 Juvenile Justice System and NCPCR
9.11 Child Rights in Areas of Civil Unrest and NCPCR
9.12 Corporal Punishment and NCPCR
9.13 Suggestions
9.14 Summary
9.15 References
9.16 Further Readings
9.17 Model Questions
9.0 Objectives:
The objective of this chapter is:
1. To understand the composition and functioning of National Commission for Protection of
Child Rights.
2. To evaluate the role of National Commission for Protection of Child Rights and other
statutes for the protection and promotion of child rights.
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9.1 Introduction:
It was once said that the moral test of government is how it treats those who are in the dawn of
life, the children; those who are in the twilight of their life, the elderly; and those who are in the shadows
of life, the sick, the needy and the handicapped.” -
Hubert Humphey
India manages the largest network of State run public institutions in the world today reaching out
to the maximum number of children in schools. Over 0.9 million schools, 3.6 million school teachers
cover 143 million children in the 6-14 years age group and the largest noon meal program in schools
covering 131.69 million children. It has the largest immunization program and nutrition program with 1.4
million early child care (anganwadi) centers covering over 80 million children. It addresses children from
the most vulnerable communities such as the scheduled caste and scheduled tribes through affirmative
action as mandated by the Constitution of India and provides a range of targeted initiatives and
infrastructure such as scholarships, residential schools, hostel facilities and so on2.
In present times there has been danger to the childhood as many advances in lifestyles has
been harsh on the children. The Children in the contemporary set up are the most marginalized section
of the society. There is no food to eat, no health support, no education and they are resorting to crimes,
becoming juvenile offenders. The rates of infant and child mortality are alarmingly high. The trafficking
of older children across the country is rampant. There is a networks of sourcing children from one end
of the country to another, exists across India, from Manipur to Chennai, Bihar to Punjab, Kerala,
Rajasthan, Orissa to Mumbai and Gujarat. The children are subject to abuse, torture and gross
exploitation on their way to work and even in the work places. Those who remain in their own
communities and are at work are also victims of cruel market forces and lack access to State services
and protective schemes. Child marriages, child trafficking and discrimination of girls remain crucial
challenges. There is a growing number of children being affected and infected with HIV and AIDS,
displacement due to natural disasters and civil unrest, representing a new generation of hazards facing
the child in this country.
India being a large country there is diversity in an economic, political and educational sector
.The quality of service is inconsistent and is a key challenge in ensuring access to the fundamental and
basic rights of all the children. Undoubtedly, there have been gainful achievements in some areas in the
country with some States, districts and blocks doing better than the rest on the child development
indicators of health, nutrition, education and other entitlements. But in other disadvantaged
communities the performance of the authorities is abysmally poor.
In order to improve the status of the children in our country several attempts have been made
by the Indian government and the National Commission for Protection of Child Rights is a significant
step taken in the right direction. The National Commission for Protection of Child Rights (NCPCR) is an
Indian governmental commission, established by an Act of Parliament, the Commission for Protection
of Child Rights Act in December 2005. The Commission began operation a year later in March 2007.
The Commission considers that its Mandate is "to ensure that all Laws, Policies, Programmes and
Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the
Constitution of India and the UN Convention on the Rights of the Child." As defined by the commission,
child includes those up to the age of 18 years.
The mandate of the commission is to ensure that all Laws, Policies, Programmes and
Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the
Constitution of India and also the UN Convention on the Rights of the Child.
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The Commission visualizes a rights-based perspective flowing into National Policies and
Programmes, along with nuanced responses at the State, District and Block levels, taking care of
specificities and strengths of each region. In order to touch every child, it seeks a deeper penetration to
communities and households and expects that the ground experiences inform the support the field
receives from all the authorities at the higher level. Thus the Commission sees an indispensable role for
the State, sound institution-building processes, respect for decentralization at the level of the local
bodies at the community level and larger societal concern for children and their well-being.3
The National Commission for Protection of Child Rights (NCPCR) emphasizes the principle of
universality and inviolability of child rights and recognizes the tone of urgency in all the child related
policies of the country. For the Commission, protection of all children in the 0 to 18 years age group is
of equal importance. Thus, policies define priority actions for the most vulnerable children. This includes
focus on regions that are backward or on communities or children under certain circumstances, and so
on. The NCPCR believes that while in addressing only some children, there could be a fallacy of
exclusion of many vulnerable children who may not fall under the defined or targeted categories. In its
translation into practice, the task of reaching out to all children gets compromised and a societal
tolerance of violation of child rights continues. This would in fact have an impact on the program for the
targeted population as well. Therefore, it considers that it is only in building a larger atmosphere in
favour of protection of children's rights, that children who are targeted become visible and gain
confidence to access their entitlements4.
Likewise, for the Commission, every right the child enjoys is seen as mutually-reinforcing and
interdependent. Therefore the issue of gradation of rights does not arise. A child enjoying all her rights
at her 18th year is dependent on the access to all her entitlements from the time she is born. Thus
policies interventions assume significance at all stages. For the Commission, all the rights of children
are of equal importance.5
The following perspectives guide the Commission in all its work6:
1. All children are equally important and all the rights of children are of equal importance.
Every right the child enjoys is mutually reinforcing and interdependent.
2. Every age within the 0 to 18 years age bracket, is of equal importance. A child enjoying all
her rights at her 18th year is dependent on the access the child has had to all her
entitlements from the time she is born. Thus policies and interventions at all stages in a
child’s growth and development assume equal significance.
3. It is the State’s obligation to protect children’s rights. The civil society is to be seen as an
equal partner to create an environment where child is in the centre of all decisions.
4. The principle of non-discrimination and equality has to be adhered to in operational sing
services to children who are differently placed and in unjust circumstances.
5. Each and every child would gain access to her entitlements in a universal approach that is
inherently inclusive. Although a targeted program of reaching out to children in most
deprived communities, in backward regions or those with special needs is important, it has
to be rooted in a shared vision of protection of all children in our country to be effective.
6. Children are to be embedded in their culture and environment to feel empowered. The
diversity and plurality of their cosmos have to be respected where they blossom in a
natural fashion. However on some occasions, child rights are violated and even justified in
the name of preserving cultural practices and tradition. When there is a conflict between
 103

culture and child rights, children’s rights must take precedence and old cultures and
traditions must adjust to give primacy to children’s needs and rights.
7. The best has to therefore be given in a time-bound manner without any waiting.
It is often heard that it is impractical to cover all children and all services at one go. It is not
practical to keep some children on hold and let them suffer due to our incapacities. It does
not make sense for the child concerned to be asked to wait till the world of adult is ready
for them. Childhood comes only once. A lost childhood can never be regained. The long
term effects of children who have missed out on their basic entitlements and its impact on
their vulnerabilities as they grow has lasting implications for children, and the society at
large. Thus a distinction between short term needs that require immediate action and the
vision for long term goals does not make sense as far as the child is concerned.
8. Use of authority and power over the child by the adult is unacceptable. Children are to be
seen as equal to and not as less than adults. Indeed because of their special
circumstances and needs they are more than equals.
9. Taking uncompromising stands in favor of children and their rights is the first step towards
the process of listening to children and recommending policy and legal reforms.
Therefore the focus of the Commission is to understand and review the basis application and
actual implementation of the legal frameworks, policies and programmes at the state as well as at the
international level. The Commission is fully conscious of its role in the context of India’s federalism and
the dynamics of Centre-State relations.
9.2 Meaning of Child:
According to international law, a child means every human being below the age of 18 years.
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. India has always recognized the category of persons below the age of 18 years as distinct
legal entity. That is precisely why people can vote or get a driving license or enter into legal contracts
only when they attain the age of 18 years. Marriage of a girl below the age of 18 years and a boy below
21 years is restrained under the Child Marriage Restraint Act 1929. Moreover, after ratifying the
UNCRC in 1992, India changed its law on juvenile justice to ensure that every person below the age of
18 years, who is in need of care and protection, is entitled to receive it from the State. As per the child
rights charter, a universal definition of "child" includes all persons under the age of 18. 40% of India's
population is below the age of 18 years which at 400 million is the world's largest child population.7
9.3 Composition of the National Commission:
The Constitution of National Commission of Protection of Child Rights is:
1. The central government shall, by notification, constitute a body to be known as the National
Commission for Protection of Child Rights to exercise the powers conferred on, and to
perform the functions assigned to it under this act.
2. The commission shall consist of the following members namely:-
 A chairperson who, is a person of eminence and has done a outstanding work for
promoting the welfare of children; and
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 Six members, out of which at least two shall be woman, from the following fields, to be
appointed by the central government from amongst person of eminence, ability, integrity,
standing and experience in:
1. Education
2. Child health, care, welfare or child development
3. Juvenile justice or care of neglected or marginalized children or children with disabilities
4. Elimination of child labor or children in distress
5. Child psychology or sociology and
6. Laws relating to children
The office of commission shall be at Delhi.
9.4 Functions and Powers:
The commission has the following functions under Section 13 of the Commissions for Protection
of Child Rights (CPCR) Act, 2005:
(1) The commission shall perform all or any of the following functions, namely:-
 To examine and review the safeguards provided by or under any law for the time being in force
for the protection of child rights and recommend measures for their effective implementation;
 To present to be central government, annually and at such other intervals, as the commission
may deem fit, reports upon working of those safeguards.
 To inquire into violation of child rights and recommend initiation of proceedings in such cases.
 To examine all factors that inhibit the enjoyment of rights of children affected by terrorism,
communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking,
maltreatment, torture and exploitation, pornography and prostitution and recommend
appropriate remedial measures.
 To look into the matters relating to the children in need of special care and protection including
children in distress, marginalized and disadvantaged children, children in conflict with law,
juveniles children without family and children of prisoners and recommend appropriate remedial
measures.
 To study treaties and other international instruments and undertake periodical review of existing
policies, programmes and other activities on child rights and make recommendations for their
effective implementation in the best interest of children.
 To undertake and promote research in the field of child rights.
 To spread child rights literacy among various section of society and promote awareness of the
safeguards available for protection of these rights through publications, the media, seminar and
other available means.
 To Inspect or cause to be inspected any juveniles custodial home, or any other place of
residence or institution meant for children, under the control of the central government or any
other authority, including any institution run by a social organization; reformation or protection
and take up with these authorities for remedial action, if found necessary
 105

 Inquire into complaints and take suo motu notice of matter relating to 1.Deprivation and violation
of child rights.
 The non implementation of laws providing for protection and development of children.
 Non compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to
and ensuring welfare of the children and provide relief to such children or take up the issues
rising out of such matters with appropriate authorities and
 Such other functions as it may consider necessary for the promotion a state commission or any
other commission duly constituted under any law for the time being in force.

Self Assessment Questions:

1. What is the meaning of the term ‘child’?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2. Explain the composition of National Commission of Protection of Child Rights.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

9.5 State Commission for Protection of Child Rights (SCPCR):

The State Commissions for Protection of Child Rights (SCPCR) were to be established in each
state as per the provisions of the Commissions for Protection of Child Rights Act, 2005. It was set up to
protect, promote and defend child rights in each state. The Commission consists of a chairperson and
six members who are well versed in child welfare. At least one member should be a woman. The state
commission is required to submit an annual report to the state government as well as special reports
when an issue needs immediate attention.
The functions of the commission are the same as those of National Commission for Protection
of Child Rights:
 Examine any law or constitutional provisions to ensure that the safeguards of the law protect child
rights
 Provide the state government with recommendations to improve correct the safeguards
 Inquire into child rights violations
 Examine the risk factors for children affected by terrorism, communal violence, riots, natural
disasters, domestic violence, HIV/ AIDS, trafficking, maltreatment, torture and exploitation,
pornography, and prostitution and recommend appropriate remedial measures
 Look into the special care and protection of children from distress, marginalized and
disadvantaged backgrounds
 Study and ensure implementations of child rights treaties
 Conduct research in the field of child rights
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 Create awareness through various mediums

 Inspect any children's home or observations homes where children have been detained
9.6 Finance, Account and Audit:
Grants by Central government:
1. The central government shall, after due appropriation made by parliament by law in this
behalf, pay to the commission by way of grants such sums of money as the central
government may think fit for being utilized for the purpose of this act.
2. The commission may spend such sums of money as it thinks fit for performing the functions
under this act, and such sums shall be treated as expenditure payable out of the grants
referred to in sub-section (1).This section makes provision for payments of grants of the
commission by the central Government for performing the functions assigned to it under
the Act.
Grants by State Governments:
1. The state government shall, after due appropriation made by legislature by law in this
behalf, pay to the state commission by way of grants such sums of the money as the state
Government may think fit for being unutilized for the purpose of this Act.
2. The state commission may spend such sums of money as it thinks fit for performing the
functions under chapter III of this Act, and such sums shall be treated as expenditure
payable out of the grants referred to in sub section (1).
9.7 Right to Education and NCPCR:
National Commission for Protection of Child Rights has been mandated under Section 31 of the
Right of Children to Free and Compulsory Education Act, 2009 to examine and review the safeguards
of the rights provided under the act and to recommend measures for its effective implementation, to
inquire into complaints relating to violation of child’s right to free and compulsory education and to take
necessary steps as provided under Section 15 of the Commission for Protection of Child Rights, 2005.
Towards realizing its commitment of Universalizing Elementary Education during 2013 onwards, the
Commission has undertaken varied activities providing for equity, inclusive, quality and sustainable
education in India.8
The RTE Act is historic as it makes it a State obligation to provide for free and compulsory
education to every child of the age of 6-14 years in a neighborhood a welcome step. This would enable
millions of out of school children who have been drawn into harmful and illegal nexuses of labour,
trafficking and work in domestic as well as informal sector join schools.
The Commission is in the process of creating requisite accountability mechanisms at the local
level for the upholding of the right to all children and for ensuring speedy resolution of grievances and
disputes. Also to introduce a system of social audit of children’s access and retention in schools as well
as the school infrastructure , teacher attendance and support systems to schools at the block and
district level. And how the quasi-judicial powers vested in the NCPCR and its State level organs can be
effectively put to work for the welfare of all children of India. NCPCR is in the process of creating RTE
Advisers at the States who will in turn network with hundreds and thousands of child defenders at the
grass root level.
9.8 Protection of Children from Sexual Offences (POCSO) and NCPCR:
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In order to effectively address the heinous crimes of sexual abuse and sexual exploitation of
children through less ambiguous and more stringent legal provisions, the Ministry of Women and Child
Development championed the introduction of the Protection of Children from Sexual Offences
(POCSO) Act, 2012.
The Act defines a child as any person below eighteen years of age, and regards the best
interests and well-being of the child as being of paramount importance at every stage, to ensure the
healthy physical, emotional, intellectual and social development of the child. It defines different forms of
sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and
pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as
when the abused child is mentally ill or when the abuse is committed by a person in a position of trust
or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor. People who traffic
children for sexual purposes are also punishable under the provisions relating to abetment in the Act.
The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term
of rigorous imprisonment for life, and fine.
Under Section 44 of the Protection of Children from Sexual Offences (POCSO)Act and Rule 6 of
POCSO Rules, 2012, the National Commission for Protection of Child Rights, in addition to its assigned
functions, also mandated:
1. To monitor in the implementation of the provisions of the POCSO Act, 2012
2. To monitor the designation of Special Courts by State Governments
3. To monitor the appointment of Public Prosecutors by State Governments
4. To monitor the formulation of the guidelines described in section 39 of the Act by the State
Governments, for the use of non-governmental organizations, professionals and experts or
persons having knowledge of psychology, social work, physical health, mental health and child
development to be associated with the pre-trial and trial stage to assist the child, and to monitor
the application of these guidelines.
5. To monitor the designing and implementation of modules for training police personnel and other
concerned persons, including officers of the Central and State Governments, for the effective
discharge of their functions under the Act.
6. To monitor and support the Central Government and State Governments for the dissemination
of information relating to the provisions of the Act through media including the television, radio
and print media at regular intervals, so as to make the general public, children as well as their
parents and guardians aware of the provisions of the Act.
7. To call for a report on any specific case of child sexual abuse falling within the jurisdiction of a
CWC.
8. To collect information and data on its own or from the relevant agencies regarding reported
cases of sexual abuse and their disposal under the processes established under the Act,
including information on the following:-
o Number and details of offences reported under the Act.
o Whether the procedures prescribed under the Act and rules were followed,
o Including those regarding timeframes details of arrangements for care and protection of
victims of offences under this Act, including arrangements for emergency medical care
and medical examination; and
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o Details regarding assessment of the need for care and protection of a child by the
concerned CWC in any specific case.
9. To assess the implementation of the provisions of the Act and to include a report in a separate
chapter in its Annual Report to the Parliament.
9.9 Child Labour (Prohibition and Regulation) Act 1986 and NCPCR:
The rights based perspective and the NCPCR considers that there can be no excuse for
existence of child labour and violation of children’s rights. There can be no distinction between child
labour and child work, or hazardous labour and non-hazardous labour. The definition of ‘child labour’
must encompass children working for the families in their own homes, children in agriculture work, work
rendered by girl children and all other forms of work that deprives them of their right to education in a
full time formal school. It recommended that the definition of ‘child labour’ be inclusive and recognize all
forms of child labour as prohibitive and to include children up to 18 years of age. The NCPCR calls for a
consonance of the between child labour law with the Act on ‘Right of Children for Free and Compulsory
Education-2009’ that guarantees education as a fundamental right to all children in the 6-14 years age
group. The NCPCR has reflected its stand in a policy document and as well suggested reform in this
area.
9.10 Juvenile Justice System and NCPCR:
It was found that the failures in the Juvenile Justice system predominantly related to the
entrenched criminalization and institutionalization of children in conflict with the law and children in
need of care and protection. This is reflected in the pervasive violation of children’s fundamental rights
in every step of a child’s contact with the JJ system.
Importantly, there was a fundamental lack of recognition within the JJ system that:
• children in conflict with law are also children in need of care and protection
• children in need of care and protection are also at risk of becoming children in conflict with
law and
• all ‘at risk’ children are also potential entitlement holders of the JJ system, NCPCR has
identified the following six (overlapping and inter-related) areas for priority reform under
existing the Juvenile Justice policy and legislation
• An inclusive in coverage and reach of categories of children who are currently unaddressed
or excluded due to procedural or operational barriers.
• Institutionalize processes and ensure professionalization of actors in the Juvenile Justice
system.
• Reforms in procedural implementation (intake, adjudication and disposition) of the Juvenile
Justice Boards to ensure fairness in line with child jurisprudential principles.
• Operationalise non-institutional, alternate care provision to ensure durable placement
outcomes for children without access to parental care and appropriate re-unification
processes for children returning to parental care.
• Transform quality of care in existing Homes to eliminate child rights violations and ensure
consistent standards of care through reform of governance, schooling reintegration and
education provision within and outside the home premises, mental health provision and
rehabilitation programming.
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• Establish strategies for prevention of children falling into ‘at risk’ category through early
intervention by community based child protective services mobilized at district and block
levels9.
9.11 Child Rights in Areas of Civil Unrest and NCPCR:
Children are the worst affected in times of civil unrest and such displacement. Having no access
to food, water, health care and basic amenities, they have suffered the most. Hunger and starvation
leading to malnutrition is not uncommon. Children’s education has been compromised resulting in
school drop outs and a large number of children not attending schools. This is especially true of
children of families in relief camps or of migrant labor. Having no documentation regarding age proof,
address, school progress reports children are unable to join schools in the new areas. Older children
have been left to fend for themselves and some of them have been caught in the web of illegal activities
and even in armed conflict, having none of the options that come through literacy and education.
Several of them have joined networks of trafficking as child labor and also for sex work. Hundreds and
thousands of children are thus affected. Even in habitations where families have stayed back, access to
education, health, nutrition and so on is non-existent as public servants have stopped visiting the
habitations out of fear. In all these areas the NCPCR has also come across children who have lost link
with their families and are even orphaned. Young girls have been victims of physical and sexual abuse.
9.12 Corporal Punishment and NCPCR:
The Commission has heard innumerable cases of corporal punishment and violence and suicide of
children for being subject to insinuating and often unreasonable remarks by school teachers. These
gross acts have come to light through newspapers and electronic media and specific complaints made
to the Commission.NCPCR held public hearings and heard children’s testimonies on the issue. The
Right of Children to Free and Compulsory Education Act 2009 provides that no child shall be subject to
“physical punishment or mental harassment” in schools. Those officials that contravene this provision
shall be liable for disciplinary action under service rules applicable to them. However, the provision
does not criminalise corporal punishment; it does not resolve contradictory provisions in criminal law in
favour of an absolute ban. Nor does it lay down a standardised penalty for corporal punishment that
should be incorporated in service rules to punish corporal punishment. In practice, this could mean
corporal punishment is penalised very lightly, which would have little deterrent effect given how widely it
is accepted as a method of discipline. The Commission issued guidelines to schools, local bodies,
district and State authorities on corporal punishment. No distinction between forms of violence was
made as it considered that, ‘all forms of corporal punishment are a fundamental breach of human
rights’. It stated that ‘a slap is as detrimental to the child‘s right as grievous injury... Indeed there are no
gradations since it must be seen that condoning so called ‘small acts’ actually lead to gross violations10.
Considering that there is a wide societal acceptance for corporal punishment as normal it
recommended a campaign where children, parents and child defenders alike gain confidence to speak
up against the practice of corporal punishment in schools and other institutions. Further it
recommended that every school, including hostels, JJ Homes, shelter homes has a for children to
express their views and if available involve an NGO. It suggested that there is a complaint box , in each
school where complaints even if anonymous are entertained. The Commission also indicated monthly
PTA meetings be held to review the complaints and they be encouraged to act immediately on any
complaints made by children without postponement of the issue and wait for a more grave injury to be
caused11.
9.13 Suggestions:
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It is worth noting that in child abuse cases the confidence of the child is destroyed child’s
agency is snatched away. Their experience with peers and one’s own could also be damaging and so
at this point of time the victim impact assessment has to be done and children must have access to
services of rehabilitation with psychological counselling, empowerment of the child to exercise
agency.These aspects are missing in the present system. We are still to evolve child friendly
processes. Most of the services at the moment are inadequate. The procedures of rendering justice as
it exists at every stage disrupt normalization and healing process of the child. Instead of legal redressal
being therapeutic childhood is sacrificed for justice to be obtained.
Gram Panchayats have an important role to play in the protection of children’s rights in the
country. They are ideally suited for this task because Gram Panchayats have direct access to children.
At the level of Gram Panchayats, children are not numbers and statistics, but real names and faces in
the knowledge of all in the neighborhoods. They are to be equipped to monitor all the public institutions
such as schools, social welfare hostels, Anganwadi Centers, Sub-centers of Health Departments and
the Primary Health Centers. They have the authority to engage with officials of all the concerned
Departments and hold them accountable to the Gram Panchayat and the constituency, in the best
interests of children. It has been found that in several States, the Gram Panchayats have played an
enormous role in taking care of children and their rights.
It is correct to say that this law supported the protection and welfare of the child rights. But the
necessary attachment of all citizens in India is required. At the same time awareness among citizens is
the need of an hour. Only law cannot give the protection without active participation of all beings. Lastly
education can aware the people about their rights and duties. So it is necessary we change our mind
set up.12
9.14 Summary
The world of adults must acquire the unique capabilities to pay special attention to have
children’s opinions heard and respect the dignity and rights of every child in every circumstance.
Children are as human and sensitive as adults are, if not more. They need to be secure with a caring
atmosphere and this is an adult responsibility. Practicing non-violence as a highest form of culture
begins with seeing children as children. It is necessary for adults to behave with them in a manner that
they are not subject to violence and hurt of any kind. In a way fostering such a culture will develop
adults as responsible adults who would in turn be vigilant and question those that are breaking the
norms of respecting childhood. In so doing inculcate the values of non-violence in children; adults
cannot preach non-violence when perpetrating violence.
What is required therefore is to build skills of all in the society, cutting across regions, cultures,
classes, officials, school teachers, care givers and adults at large to engage with children as equals,
listen to them and address their concerns in a manner that does not hurt or humiliate them.
Whoever causes one of these little ones who believe in Me, to sin, it would be better for him if a
millstone were hung around his neck, and he were drowned in the depth of the sea”.
Jesus warns. Found in Matthew 18: 2-6
It means we must protect the rights of children not only because it is our moral obligation to do
so as cosmopolitans but also as a children of the Divine creator. We must be compassionate, just as
our Father is compassionate to us.
9.15 References:
1. Shantha Sinha, Monitoring Children’s Rights National Commission for Protection of Child
Rights: India available at
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http://srsg.violenceagainstchildren.org/sites/default/files/consultations/child_friendly_mechanism
s/presentations/Shanta_Shinha_NCPCR_India.pdf accessed on 15th November,2014
2. http://ncpcr.gov.in/
3. The National Commission for Protection of Child Rights (NCPCR) available at
http://www.indg.in/social-sector/women-and-child-development/1the-national-commission-for-
protection-of-child-rights-ncpcr.pdf accessed on 16th November,2014
4. http://ncpcr.gov.in/index1.php?lang=1&level=0&linkid=12&lid=44
5. http://srsg.violenceagainstchildren.org/sites/default/files/consultations/child_friendly_mechanism
s/presentations/Shanta_Shinha_NCPCR_India.pdf
6. Shubhangi Rathi,Role of the National Commission for Protection of Child Rights available at
http://shubharathi.blogspot.in/2013/04/role-of-national-commission-for.html accessed on 15th
November,2014
7. http://ncpcr.gov.in/index1.php?lang=1&level=1&&sublinkid=11&lid=604
8. Supra note 3
9. http://www.ncpcr.gov.in/Guidelines/Guidelines_on_Corporal_Punishment_to_Chief_Secretaries.
pdf
10. Supra note 2
11. Shubhangi Rathi,op.cit
9.16 Further Readings
1. http://ncpcr.gov.in/
2. http://smilefoundationindia.org/child_rights.htm
3. UNICEF Report 2005
4. http://www.topbibleverses.com
5. http://globalnation.inquirer.net/cebudailynews/news/view/20110401-328729/Police-seek-hold-
departure-order-against-Cebuana-and–British-boyfriend
6. http://gervacio.wordpress.com/tag/crime/
7. http://en.wikiquote.org/wiki/Elie_Wiesel
8. http://www.betterworld.net/quotes/children-quotes-4.htm
9. http://www.tentmaker.org/Quotes/kindnessquotes.htm
10. http://www.brainyquote.com/quotes/keywords/indifference_2.html
11. http://www.chanrobles.com/philsupremelaw1.htm
12. Shantha Sinha, Monitoring Child Rights, National Commission for Protection of Child Rights,
2014.
9.17 Model Questions
1. Who is child? Discuss the role of National Commission for Protection of Child Rights in
protection of the rights of the children in our country. Has it succeeded in its mandate?
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2. Critically analyze the Juvenile Justice System and National Commission for Protection of
Child Rights.
3. What is the mandate of National Commission for Protection of Child Rights under Right of
Children to Free and Compulsory Education Act, 2009?

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