Module 5: Human Rights and Social Values: Issues, Challenges and the

Future 10 h

Challenges to achieving social justice in India: Historical perspective,

Monitoring Human Rights Violations, Impact of social values on human rights

The future: Role of Court in Implementation of Human Rights, Role of non-

governmental organizations in securing social justice through Human Rights
 Basic forms of justice

The Social Whole

Legal justice
Or Social Justice
Distributive Justice

Individual Person Individual Person

Commutative justice
 Basic forms of justice

Social Justice: Individuals  Social whole

• Social justice is justice in terms of the distribution of wealth, opportunities, and
privileges within a society.

• Historically and in theory, the idea of social justice is that all people should have
equal access to wealth, health, well-being, justice, privileges, and opportunity,
regardless of their legal, political, economic, or other circumstances.

• Issues: Racism, social stratification, equity, education, healthcare, unequal pay,

immigration, and LGBTQ+ rights
Basic forms of justice
Basic forms of justice
 Basic forms of justice

Distributive Justice: Government authorities   Individual

• Allocation of equal material goods to all members of society, without any
discrimination.
• Strict Egalitarianism: One of the simplest principles of distributive justice is that
of strict, or radical, equality. The principle says that every person should have the
same level of material goods (including burdens) and services. The principle is
most commonly justified on the grounds that people are morally equal and that
equality in material goods and services is the best way to give effect to this moral
ideal.

• John Rawl’s difference principle: The Difference Principle permits diverging

from strict equality so long as the inequalities in question would make the least
advantaged in society materially better off than they would be under strict equality.
 Basic forms of justice

Legal Justice: Individuals  Social whole

• Legal Justice means rule of law and not rule of any person.
• It includes two things: that all men are equal before law, and that law is equally
applicable to all.
• It provides legal security to all, & governs what individuals owe society as a whole

Commutative justice: Individual   Individual

• Regulates relationships & exchanges between individuals.
• Justice bearing on the relations between individuals especially in respect to the
equitable exchange of goods and fulfillment of contractual obligations.
• Dealing with fairness in contracts among individuals and private social groups.
 Role of Court in Implementation of Human Rights

• Human rights include the right to life and liberty, freedom from slavery and torture,
freedom of opinion and expression, the right to work and education, and many
more.

• Judiciary: A vehicle for development & protection of human rights.

• The Indian Judiciary administers a common law system of legal jurisdiction, in

which customs, precedents and legislation, all codify the law of the land.

• India inherited the legacy of the legal system established by the then colonial
powers and the princely states since the mid- 19th century, and has partly retained
characteristics of practices from the ancient and medieval times.
 Role of Court in Implementation of Human Rights

• The Judiciary with no uncertainty has assumed an essential part in security of

Human rights throughout the decades.

• The absolute most obnoxious infringement of human rights like Sati, Child
Marriage, Honor Killings, Slavery, Child work and so forth., have been
annulled entirely inferable from broad mindfulness and strict execution measures
taken by the Judiciary.

• The question of the Human Rights Jurisprudence (legal system) is to acculturate

state organizations and to make state responsible to the utilization of energy just
for open great.

• The development of human rights can be reflected in the legal tends of the state.
 Role of Court in Implementation of Human Rights

Working areas:

1. Criminal Justice system

2. Development of Environmental Laws

3. Guardian of Indian Constitution

4. Protection of vulnerable section of society

 Role of Court in Implementation of Human Rights

1. Criminal Justice system

A. Protection in investigation:
• Arrest is regarded as the first step in the criminal justice system and there are
numerous guidelines issued by the apex court which has to be followed before
and after arresting a person.
• Custodial torture is common police practice in India

B. Protection in trial:
• There are two basic things which is needed to be protected while the trial is
going on i.e. liberty of a person as well as speedy trial.
• Bail is the rule, jail is an exception is the well settle rule in criminal justice
system.
 Role of Court in Implementation of Human Rights

1. Criminal Justice system

C. Protection in serving sentence:
• Prison is the last and foremost important part of the criminal justice system. It
has the responsibility to rehabilitate the convict person to make him a better
citizen for the society.

• Alarming human rights violations have been witnessed in Indian jails.

• The apex court in several cases has taken a serious note of the inhuman
treatment on prisoners and has issued appropriate directions to the concerned
authorities for safeguarding the rights of the prisoners.
 Role of Court in Implementation of Human Rights

2. Development of Environmental Laws

• Environment and life are interrelated. Our lives rely upon common assets, for
example, air, water, and land.

• Ecological annihilation hinders survival; on the other hand, human rights

infringement can cause natural corruption, for example, war can prompt loss of
access to clean water. In this manner, the nature of the condition is verifiably
identified with our satisfaction in the privilege to live. As a result of this
interrelationship, natural and human rights advocates have pushed for the
augmentation of the privilege to address ecological mischief.

• Constitutions of all countries ensure the privilege of life. As of late, national

courts of a few nations have utilized the right-to-life arrangement as a lawful
device to ensure the earth by rethinking the extension and importance of the
arrangement. Indian courts have made the best commitment on this issue. The
scope of Article 21 of the Indian Constitution has expended tremendously. As
many aspects of life is now cover under the umbrella of this article.
 Role of Court in Implementation of Human Rights
3. Guardian of Indian Constitution

• The Constitution of India is the incomparable rule that everyone must follow
and the Supreme Court is its mediator and gatekeeper. It doesn't enable the
official or the Parliament to abuse any arrangement of the Constitution.

• Judicial Review by Supreme Court: SC audits any Government activity,

which supposedly damages any arrangement of the Fundamental Rights. In
the event that it finds the infringement of any arrangement of the Constitution,
it might proclaim the concerned law as ultra-vires, or invalid and void. It is
based on this energy of Judicial Review of the Supreme Court that it is called
gatekeeper of the Constitution.

• It is additionally called 'a champion of freedoms' and 'a guard dog of popular
government'
 Role of Court in Implementation of Human Rights

3. Guardian of Indian Constitution (contd.)

• Fundamental Right under Article 32 of the Constitution of India: The

privilege to move to the Supreme Court to implement Fundamental
Rights.

• Under Article 226 of the Constitution of India, the High Courts have
simultaneous ward with the Supreme Court in the issue conceding
alleviation in instances of infringement of the Fundamental Rights.
 Role of Court in Implementation of Human Rights

4. Protection of vulnerable section of society

Child Welfare:
• Indian Judiciary has recognized the rights to the children in our country by
using the weapon on judicial activism. A mere complaint letter is also
treated as a writ petition in the court. The Indian judiciary also gifted
protection not to get employed in the factories which is hazardous in nature
which protect them from the evil outcome.

Handicapped should be given job opportunities:

• Although some people are handicapped by the birth but it is not necessary that
they don’t have any capabilities and potential to work or to engage with any
government job. Handicapped person are also human and they also have the
human right to get the job opportunities.
• The Supreme Court permits the person which are visually handicapped to sit
and write the civil services examination (UPSC) in the categories of group A
& group B post which are suitable for the handicapped in “Braille Script”
National Federation of blind v. UPSC
 Role of Court in Implementation of Human Rights
4. Protection of vulnerable section of society
Women:
• A new guideline for rehabilitation and compensation has been set up by Supreme
Court for the protection of proper justice for women.
• New guidelines for preparing sexual harassment of working women in working
place.
• Indian judiciary has played a vital role for the protection of the rights of the women
also it promotes Human Rights, like abolishing Sati system, criminalizing dowry,
education & employment opportunities, & fetus sex determinations etc.

Indigent Persons:
• India is the country in which the major section of the population is still living under
BPL. Thus, its become very important to protect their rights. Directive principal of
state policy although not enforceable by the court, still have the binding effect on
the government due to the various judgment of the apex court.
• For example; free legal aid, right to get free education, right to get equal
opportunity in employment.
 Role of Court in Implementation of Human Rights
Challenges : A road ahead
• The tradition judiciary activity to limit its actions on deciding disputes between two
parties, as many judgments are there where judiciary haven’t contributed on the
social order but only on solving the dispute of two parties.
• Limited guidance on writing judgments in civil and criminal matters which are
provided in codes of civil and criminal procedure respectively, are not followed
accordingly.

• Imbalanced ratio of judges with the population is one of the major drawbacks for
delivering the justice on time in a proper way.

• Expensive legal procedure is also a challenge for courts as the country like India
more of the violation of human rights is of poor and backward classes.

• Corrupted & Inadequate legal aid system is a challenge for each and every
member related to the Indian judiciary as the violation of human rights can be
overcome by the way of justice only.
 Role of Court in Implementation of Human Rights
Challenges : A road ahead
Suggestions
• The judiciary must not limit its activity to the traditional role of deciding dispute between
two parties, but must also contribute to the progress of the nation and creation of a social
order.
• Unbiased reviews: NGOs and other civil society organizations should be partnered as much
as possible in developing and delivering Legal aid projects.
• Fast court processing's: Courts should provide fast judgments to the needy ones, as justice
delay is justice denied and getting justice is a basic human right of each and every citizen.
• Establish Human Rights Courts: Government while exercising there power given under
Protection of Human Rights Act, 1993 should establish Human Rights Courts to provide
justice in the cases of Human Rights violation.
 Impact of social values on human rights
• Promoting human rights means changing behavior: Changing the behavior of governments that mistreat
suspected criminals, opponents of their policies, supporters of their political rivals, and members of particular
gender, ethnic, or religious groups; changing the behavior of corporations that mistreat their workers, damage the
environment, and produce unsafe products; and changing the behavior of citizens who mistreat their spouses,
children, and neighbors.

• Social norms have proven to be an effective mechanism for changing health-related, environmental
behaviors, & human-rights domain.

• Social norms are defined as socially shared and enforced attitudes specifying what to do and what not to do in
a given situation. They are one source of constraint on behavior, in a family with laws, markets, and structural
features of the environment. Social norms are similar to laws, only less formal: The standards they promote are
not codified, and their enforcement occurs informally, through social sanctions within groups and communities.
They are similar to markets, only the incentives involved are social, not material: the approval of one’s friends
and neighbors is what is at stake.

• Social norms are akin to structural features of the environment, in that they are social constraints that channel
behavior in some directions and prevent it from going in other directions. One might assume that because social
norms are less explicit and observable than laws, markets, and physical structures, they are also less powerful; in
fact, the opposite is the case. Social norms do not require legislation, and the resources used to enforce them are
unlimited; thus, they are much more pervasive than laws and markets. Moreover, because humans are highly
social creatures, they are keenly sensitive to the behavior of those around them and are often prepared to put their
material and even physical well-being aside in pursuit of social approval
 Impact of social values on human rights (contd.)

• Moreover, norms do not just specify what people ought and ought not to do; they also specify what
people actually do, what they think, and how they feel. This definition of norms highlights a
number of features that prove useful for understanding how norms work.

• Social Norms as a Source of Problematic Behavior:

• Many of the behaviors that human rights advocates find problematic are enshrined in cultural
practices and supported by (locally) injunctive norms.
Examples: Female genital cutting, corporal punishment of children, infanticide,
animal sacrifices, dowry system, honor killings, slavery, polygamy, and so on.

• Debates about these kinds of behaviors typically revolve around the tension between
promoting human rights (conceived as universal, inalienable, and natural), on the one hand,
and respecting local cultural practices, on the other
 Impact of social values on human rights (contd.)

Social Norms as a Mechanism for Behavior Change:

• Changing people’s attitudes and beliefs in order to change their actions. Changing behavior is
fundamentally about changing minds; it is about controlling the information to which people are
exposed and how they process that information. This tradition survives and is most prominently
represented in the fields of communications, marketing, and consumer behavior.

• Social norms are motivational pressures acting on all members of a group simultaneously to
produce collective movement toward some behaviors and away from others. Behavior change,
then, involves strengthening or weakening the force of particular social norms so as to change the
equilibrium of the system.

• Strengthening social norms involves leveraging human sociality to mobilize conformity to a

particular standard. Often, this is exactly what human rights advocates want to do: They want
individuals, groups, corporations, and nations to adhere to the human-rights standards they have
agreed are desirable; they want people to practice what they preach; they want to close the gap
between descriptive norms and injunctive norms. Conformity turns out to be reasonably straight
forward to produce.
 Impact of social values on human rights (contd.)

Social Norms as a Mechanism for Behavior Change:

• Social norms are, at once, ubiquitous and elusive; they are both cause and effect, a source of their
own perpetuation. Although the claim that norms play an important part in promoting and
subverting human rights seems uncontroversial, it is a challenge to say anything more precise and
useful than that.

• These interventions work only when there is some consensus around the desirability of change.
There simply needs to be some collective resonance to the notion that we would be better off if we
did things differently.

• For example, when it comes to liberating people from norms that no longer have private support, a
modest intervention is often all that is required. In addition, a nudge is often all that is possible,
particularly when the collective desire for change is weak or ambivalent. On the other hand,
sometimes behavior change requires a hard shove. Sometimes it requires a direct and forceful
assault on behavior itself, to which injunctive norms and private attitudes then adjust.
 Monitoring Human Rights Violations
• Human rights monitoring seeks to gather information about the human rights situation in a country
or region over time through readily available methods, with the goal of engaging in advocacy to
address human rights violations.

• It also involves a process of documenting human rights violations and practices so that the
information can be categorized, verified, and used effectively.

• Human rights monitoring is sometimes called fact-finding. Fact-finding consists of investigating

a specific incident or allegation of human rights violations, collecting or finding a set of facts that
proves or disproves that the incident occurred and how it occurred, and verifying allegations or
rumors.

• Human rights monitoring should be based on principles of:

• Accuracy
• Confidentiality
• Impartiality
• Gender-sensitivity

• Although monitoring human rights should be a state responsibility, monitoring by community-based

organizations and non-governmental organizations can also produce an important perspective.

• Informal justice systems themselves should also take on the role of self-monitoring and reviewing
how they impact women’s safety and human rights. Efforts to monitor human rights in the informal
sector are few, but emerging.
 Monitoring Human Rights Violations
Focus and Purpose of Monitoring
The following are examples of objectives and focuses of monitoring:

1. Providing immediate assistance: Human rights organizations may be called upon to help
individuals or communities experiencing a particular crisis or problem. Monitoring in this
situation may be aimed at gathering first-hand information from the victims or affected
communities in order to identify the source of the problem and pursue administrative, legal or
other action to obtain redress.

2. Education and mobilization: Human rights monitoring may be undertaken "for the purpose of
mounting campaigns and publicity to create awareness among the public and to mobilize them to
put pressure on the authorities not only to stop violations but also to prevent further violations."
Fact-finding and documentation for this purpose could focus on situations affecting large
communities, such as a mass demolition of homes, or on individual victims, to seek relief for the
victims as well as to educate the public about the nature of the human rights violations.

3. Monitoring to assess "progressive realization": Demonstration of regressions of state

activities affecting the rights of certain population groups or civilians as whole by collecting
documents and other information about policy statements, legislation, social programs, court
rulings, and so on, which pertain to a given right. The validated information's can be used in
national courts or within international fora to argue that the government is failing to fulfill its
international obligations.
 Monitoring Human Rights Violations
Focus and Purpose of Monitoring

4. Litigation (legal action): Accurate fact-finding and documentation are a critical component of
building individual human rights claims and public interest cases. Monitoring activities for litigation
would include first-hand collection of facts and evidence related to the specific claim. It would also
involve research into the evolution of the laws being invoked and analyzing court decisions related
to Economic, Social, & Cultural rights claims to understand prior decisions of the courts.

5. Undertaking legislative advocacy and policy formulation: Similar to the work related to
monitoring for "progressive realization", data collection for these activities could involve collection
of legislative documents, policy statements, social service agency programs and plans. It could also
involve collecting first-hand data from affected communities and victims to provide evidence about
the effect of existing policies and laws, or the need for laws and policies where they do not currently
exist.

6. Making submissions to intergovernmental agencies: Some human rights organizations may

choose to submit reports or assist with filing complaints to intergovernmental agencies and treaty
bodies. For this purpose, the focus of monitoring would be to observe the government's performance
related to its international commitments. One form of monitoring would be to observe the
government's compliance with recommendations produced by a treaty body in response to a
government's official report.
 Monitoring Human Rights Violations
Principles Related to Human Rights Monitoring

1. Impartiality and Accuracy: Fact-finding must be thorough, accurate and impartial.

2. Application of Human Rights Standards: The standards are applied to evaluate whether or not
harm done is a question of human rights, whether an individual case can be pursued as a rights
case, whether proposed legislation or judicial reform should be pursued as a matter of human rights
and corresponding state obligation, and so on.

3. Utilizing Diverse Sources of Information: In collecting data, it is important to locate and

utilize as many sources of information as possible.

Some potential sources were identified by workshop participants:

• affected communities or individuals
• periodic government budget or policy reports
• reports by or interviews with service and advocacy NGOs
• papers and studies produced by academic or research institutions
• legislative and judicial records
• human rights commissions or other quasi-governmental bodies
• the press
 Role of non- governmental organizations in securing social justice through Human
Rights

• Many organizations around the world dedicate their efforts to protecting human rights and ending
human rights abuses. Public support and condemnation of abuses is important to their success, as
human rights organizations are most effective when their calls for reform are backed by strong
public advocacy.

• Non Governmental Organization (NGOs) is one of the examples of such groups. In every part
of the globe, there are NGOs working every hour of the day to document the injustices heaped
upon women, children and the under-class, standing beneath the bottom rung of the society. By
their active campaigning, they remind Governments to keep their promise in order to give
practical shape to goals set by various national and international conventions on human rights.

• India is estimated to have between 1 million and 2 million NGOs. The NGO are a necessary
corollary to the democratic machinery of the government, they are means of democratic
empowerment of those who are less powerful and less advantaged as the government machinery
and its authorized institution are not always sufficient to guarantee the protection of human right.

• The term non-governmental or, more accurately non-profit is normally used to cover the range of
organizations which go to make up civil society. Such organizations are characterized, in general,
by having as the purpose of their existence something other than financial profit. However, this
leaves a huge multitude of reasons for existence and a wide variety of enterprises and activities.
NGOs range from small pressure groups on, for example, specific environmental concerns or
specific human rights violations, through educational charities, women's refuges, cultural
associations, religious organizations, legal foundations, humanitarian assistance programs.
 Role of non- governmental organizations in securing social justice through Human
Rights
Role of NGOs:

Among the wide variety of roles that NGOs play, the following are important
1. The Social Welfare Role - where relief and charity are key actions. NGOs in this role can be seen
as initiating internal programs and projects.

2. The Mediatory Role - where communication as a skill is important for development and social
action. NGOs in this role can be seen as participating or taking up external programs and projects.

3. The Consultative Role - where support documentation and dissemination of information and
expertise is critical. NGOs in this role can be seen as working in collaborative programs. Local
experts/professionals/resource persons play major secondary roles.

4. Development and Operation of Infrastructure: Community- based organizations and

cooperatives can acquire, subdivide and develop land, construct housing, provide infrastructure
and operate and maintain infrastructure such as wells or public toilets and solid waste collection
services.

5. Supporting Innovation, Demonstration and Pilot Projects: NGO have the advantage of
selecting particular places for innovative projects and specify in advance the length of time which
they will be supporting the project - overcoming some of the shortcomings that governments face
in this respect.
 Role of non- governmental organizations in securing social justice through Human
Rights

Role of NGOs:

6. Facilitating Communication: The significance of this role to the government is that NGOs can
communicate to the policy-making levels of government, information about the lives, capabilities,
attitudes and cultural characteristics of people at the local level. NGOs can facilitate
communication upward from people to the government and downward from the government to t
he people.

7. Technical Assistance and Training: Training institutions and NGOs can develop a technical
assistance and training capacity and use this to assist both Community Based Organizations
(CBOs) and governments.

8. Research, Monitoring and Evaluation: Innovative activities need to be carefully documented

and shared - effective participatory monitoring would permit the sharing of results with the people
themselves as well as with the project staff.
 Role of non- governmental organizations in securing social justice through Human
Rights

Influence of NGOs on human rights procurement:

• NGOs may attempt to engage in the protection of human rights at various different stages or
levels, and the strategies they employ will vary according to the nature of their objectives – their
specificity or generality; their long-term or short-term nature; their local, national, regional or
international scope, and so on.

i. Direct assistance:
It is particularly common for NGOs working on social and economic rights to offer some form
of direct service to those who have been victims of human rights violations. Such services may
include forms of humanitarian assistance, protection or training to develop new skills.
Alternatively, where the right is protected by law, they may include legal advocacy or advice on
how to present claims.

ii. Collecting accurate information:

Governments are very often able to shirk their obligations under the international treaties, or
other rights standards, that they have signed up to because the impact of their policies is simply
not known to the general public. Collecting such information and using it to promote
transparency in the human rights record of governments is essential in holding them to account
and is frequently used by NGOs.
 Role of non- governmental organizations in securing social justice through Human
Rights

Influence of NGOs on human rights procurement:

iii. Campaigning and lobbying:

• Letter-writing campaigns are a method that has been used to great effect by Amnesty
International and other NGOs.

• Street actions or demonstrations, with the media coverage that these normally attract, may
be used when organizations want to enlist the support of the public or to bring something to
the public eye in order to 'name and shame' a government.

• The media will frequently play an important part in lobbying practices, and social media
and the Internet are now assuming an increasingly significant role.

• Shadow reports are submitted to UN human rights monitoring bodies to give an NGO
perspective of the real situation regarding the enjoyment of human rights in a particular
country.