HUMAN RIGHTS

NATURE, CONCEPT, ORIGIN, DEVELOPMENT,

IMPORTANCE, CLASSIFICATION
(1) What are Human Rights? Are the Human Rights, “a grant by the State” or they
inherent in human beings, discuss the philosophy of nature of Human Rights?
(2) Discuss in detail the development and importance of Human Rights and their
classification?
(3) Explain the concept and development of human rights. State how they are
classified?
(4) Explain the concept origin and development of human rights. Give an account of
their classification?

SYNOPSIS
1. Introduction
2. Meaning of Human Rights
3. Nature and concept of Human Rights
a) Philosophical or theoretical approach,
b) Pragmatic or utilitarian approach.
4. Classification or Kinds of Human Rights
a) The First Generation of Human Rights
b) The Human Rights of Second Generation
c) The Human Rights of Third Generation
5. Evaluation of concept of Human Rights
6. Conclusion

1. INTRODUCTION
In the classical period, international law was solely concerned with states. It was
influenced by the theory of state sovereignty. The view was based on the principle that
only states creates rule of international law and as such rules are valid for them alone.
Thus, individual has no legal significance from the International Law point of view. The
states were only treated as subjects of International Law and individuals were mere
objects. But subsequently after World War II, the position of the individual has been
completely changed because of the most remarkable developments in contemporary
International Law. In addition to the States, individuals are regarded as the real subjects
and beneficial is of International Law by virtue of having rights and duties flowing
directly from International Law.

2. MEANING OF HUMAN RIGHTS

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 The expression, “Human Rights” is comparatively recent in origin. It has formerly
and universally become recognised only after formation of the United Nations in 1945.
One of the basic principal objects of the United Nation Charter is, “reaffirm its faith in
fundamental Human Rights, in the dignity and worth of human person, in the equal rights
of men and women and nations large and small.”
The term, “Human Rights” denotes all those rights which are inherent in their nature
and without which we cannot live as human beings. The Human Rights being eternal part
of the nature of human beings are essential for development of individual personality and
human qualities, the intelligence, talent and consciences and to enable them to satisfy the
spiritual and other higher demands.
Human beings are rational beings. Being they are born as human beings, they
possess certain basic and inalienable rights, which are commonly known as human rights.
Since these rights belong to them because of their very existence, they become operative
with their birth. Human Rights, being the birth right, are, therefore, inherent in all the
individuals irrespective of their cast, creed, religion, sex and nationality. Human Rights
are those minimal rights which every individual must have against the state or public
authorities by virtue of his being a member of human family, irrespective of any other
consideration. When Human Rights are guaranteed by a written Constitution, they are
called, “fundamental rights” because a written Constitution is a fundamental law of a
State. Human rights are not created by any legislature. They assume the position of
natural rights. These rights provide suitable conditions for the material and moral uplift of
the people. Because of their immense significance to human beings; human rights are
also sometimes referred as fundamental rights, basic rights, inherent rights, natural rights
and birthright. Human Rights being essential for all-round development of the personality
of the individuals in the society, being necessarily protected and being made available to
all individuals. As a result, these rights have become established as guaranteed Human
Rights. The purposes of securing Human Rights as such, are to provide protection to
these rights against the abuses of power committed by the organs of State, to establish
institutions for the promotion of living conditions of human beings, for the development
of their personality, and at the same time, to provide effective remedial measures for
obtaining redress in event of those rights are violated.

3. NATURE AND CONCEPT OF HUMAN RIGHTS

There are two main approaches adopted to explain the nature and meaning of
Human Rights -
a) Philosophical or theoretical approach,
b) Pragmatic or utilitarian approach.

A) PHILOSOPHICAL OR THEORETICAL APPROACH -

There are five main theories of philosophical approach to explain the rights of man.
These are -
i) The Natural Rights Theory;
ii) The Legal Right Theory;

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iii) The Historical Theory of Rights;
iv) The Social Welfare Theory of Rights; and
v) The Idealistic Theory of Rights.
i) The Natural Rights Theory -
The growth of the concept of rights of man had been closely associated with the
traditional natural law theories. The ancient and medieval theories of natural law were
more concerned with the foundations of moral, legal and political duty than with the
foundation of right.
In the traditional doctrine of natural law, the rights are against other people. These
rights are having corresponding duties in the sense that some other person is under duty
towards the holder of the right. The traditional doctrine of co-relatively of rights and
duties as its major limitation and therefore, not applicable in the modern context of
Human Rights, for example, in case of human rights there is no such person or persons
with whom the duties may be associated in fact. Human Rights are claimed against State,
its representatives and functionaries. According to natural right theories there are three
characteristic features of Human Rights -
(i) Human Rights are said to be recognised,
(ii) Human Rights are to be inalienable natural and inherent,
(iii) All human beings are said to be essentially equal.
ii) The Legal Right Theory -
Jeremy Bentham is the supporter of this theory. According to this theory, rights are
the creation of the States, hence, they are neither absolute nor inherent in the nature of
man. These rights such as right to life, liberty or property are artificially created by the
law of the land. According to this theory Human Rights are recognised by the States and
hence protected by the State. Human Right is therefore a claim which can be enforced at
law and State is necessary for its protection.
iii) Historical Theory of Right -
According to this theory rights are the creation of historical process. It is a long-
standing custom in the course of time concretise in the specific form of rights. This
theory has some important limitations
(1) The statement that rights originates from historical process or custom may be true to
a limited extent only. Customs of people cannot make everything right, for example,
practice of slavery or practice of infanticide was considered lawful at one time, but
it cannot be claimed as a right today.
(2) To relate origin of right to custom is to stop all social reform, for example, practice
of Sati, polygamy, child-marriage, untouchability, etc. had been recognised as valid
custom but now they are disapproved and therefore prohibited by law.
iv) The Social Welfare Theory -
This theory is also known as Social Expediency Theory. According to this theory
law, custom and natural rights all are conditioned by social expediency. For example,
right to freedom of speech is not absolute but it is regulated in accordance with the
requirement of social expediency. Bentham and Mill are the supporter of this theory.

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According to them a large number of economic and social rights having incorporated in
the Universal Declaration of Human Rights.
v) Idealistic Theory -
This theory is also known as personality theory. The theory insist on the inner
development of man, on the development of his full potentiality. Hence, it treats right of
personality as a supreme and absolute right. All other rights such as right to life, liberty
and property are derived from fundamental rights. The chief merit of this theory is that it
insists upon the right of personality as the only absolute right.

B) PRAGMATIC APPROACH -
According to this theory the meaning and nature of Human Right is pragmatism.
Every right whether it has been perceived as inalienable or otherwise can have validity
and effectiveness only through some process or institution. Thus, it cannot be defined
without reference to some institutional structure. As a room cannot be defined without
reference to the walls, so human rights, cannot be defined without reference to
institutional settings.
In the Indian context, for instance, fundamental rights are incorporated in Part III of
the Constitution of India. Although, the term fundamental right has no where been
defined in the Indian Constitution but on careful examination of these several
fundamental rights one would conclude that these rights constitute restrictions on the
power of State and also require the State to adhere to the guidelines pronounced in the
matter by the Supreme Court of India.

4. CLASSIFICATION OR KINDS OF HUMAN RIGHTS

Louis B. Sohn has classified human rights in the following three categories -
a) The Human Rights of First Generation; or Civil and Political Rights;
b) The Human Rights of Second Generation; and
c) The Human Rights of Third Generation.

a) The First Generation of Human Rights: The International Convenant on Civil

and Political Rights.
The various rights contained in the Convenant on the Civil and Political Rights are
not new rights. These are the rights that had developed in course of a very long period of
time since the time of Greek City State and concretised in the form of the Magna Carta;
the American Declaration of Independence and the French Declaration of the Rights of
Man and of the Citizen. Thus, these rights refloet long established human values and as
such are incorporated in the national constitutions of various States. In the International
Convenant on Civil and Political Rights, in the European Conventions on Human Rights
and in Inter-American and African instruments.
Civil rights or liberties are referred to those rights which are related to the protection
of the right to life and personal liberty. They are essential for a person so that he may live
a dignified life. Such rights include right to life, liberty and security of persons, right to

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privacy, home and correspondence, right to own property, freedom from torture, inhuman
and degrading treatment, freedom of thought, conscience and religion and freedom of
movement.
Political rights may be referred to those rights which allow a person to participate in the
Government of a State. Thus, right to vote, right to be elected at genuine periodic
elections, right to take part in the conduct of public affairs, directly or through chosen
representatives are instances of political rights.
The nature of the civil and political rights may be different but they are inter-related
and interwoven, and therefore, it does not appear logical to differentiate them. This
reason alone led to the formulation of one covenant covering both- civil and political
rights into one Covenant, i.e., International Covenant on Civil and Political Rights.
These rights are the rights of the first generation which derive primarily from the
seventeenth and eighteenth century reformist theories which are associated with the
English, American and French revolutions.
b) The Human Rights of Second Generation - The International Covenant on
Economic, Social and Cultural Rights:
As the main source for the origin of Civil and Political Rights, is considered to be
the American and French Revolution, so, economic and social rights are considered to be
originated in the Russian Revolution of 1917 and in the Paris Peace Conference of 1919.
Economic, social and cultural rights, so called ‘freedom to’ are related to the
guarantee of minimum necessities of the life to human beings. In the absence of these
rights the existence of human beings is likely to be endangered. Right to adequate food,
clothing, housing and adequate standard of living and freedom from hunger, right to
work, right to social security, right to physical and mental health and right to education
are included in this category of rights. These rights are included in the International
Covenant on Economic, Social and Cultural Rights.
Economic, social and cultural rights are based fundamentally on the concept of
social equality. Realization of these rights, which is generally called the rights of second
generation has been somewhat slow in coming. They are clear only as general principles
and not as specific rules. However they have begun to come of age.
c) The Human Rights of Third Generation - Collective Rights -
Although the United Nations has recognised the above two sets of rights in two
separate Covenants, there is a close relationship between them. It has been rightly
realised especially by the developing countries that civil and political rights can have no
meaning unless they are accompanied by social, economic and cultural rights. Thus, both
the categories of rights are equally important and where civil and political rights do not
exist, there cannot be full realisation of economic, social and cultural rights and vice
versa. The relationship of the two categories of rights was recognised by the International
Human Rights Conference held in 1968 which declared in the final proclamation that -
Since human rights and fundamental freedoms are indivisible, the full realization of
civil and political rights without the enjoyment of economic, social and cultural rights is
impossible.

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The General Assembly in 1977 reiterated that all human rights and fundamental freedoms
are indivisible and interdependent and equal attention and urgent consideration should be
given to the implementation, promotion and protection of both - civil and political rights
and economic, social and cultural rights. The resolution also stated that civil and political
rights are the means to the social and economic rights of the people.
Louis B. Sohn has argued that, individuals are also members of such units, groups
or communities as a “family, religious community, social club, trade union, professional
association, racial group, people, nation and State. It is not supervising, therefore, that
international law not only recognises inalienable rights of individuals, but also recognises
certain collective rights exercised jointly by individuals who are grouped into larger
communities, including people and nations.
These rights includes a right to self-determination, right to development, right to
peace, etc. The right to self-determination is one of the most basic collective rights. By
virtue of this right people have right not only to freely determine their political status but
also to freely pursue their economic, social and cultural developments. Right to peace is
also another most important collective right. The United Nations Commission on Human
Rights has asserted in 1976 that, “everyone has the right to live in conditions of
international peace and civil security and fully to enjoy economic, social and cultural
rights and civil and political rights.”

5. EVALUATION OF CONCEPT OF HUMAN RIGHTS

The roots of the protection of the Rights of man may be traced as far back as in
Babylonian Laws, Assyrian law, in the Dharma of the Vedic period in India. Writings
of Plato and other Greek and Roman philosophers also depict for the protection of
Human Rights though they had a religious foundation. The City State of Greece gave
equal freedom of speech, equality before law, rights to vote, rights to be elected to public
office, rights to trade and the rights of access to justice to their citizens. Similar Rights
were secured to the Romans by the ‘Jus civile’ of the Roman law.
The Magna Carta granted by the King John of England to the English baron on
June 15, 1215, ensured Feudal Rights and dues and to guarantee that the King would not
encroach upon their privileges. The Carta implies that there were laws protecting the
Rights of subjects and communities, which the King is, bound to observe and if he fails to
do so, be compelled to observe by force. Thus, the Carta set forth the principle that the
power of the King was not absolute. In 1216-1217, during the reign of John’s son,
Henry-III, the Magna Carta was confirmed by Parliament, and in 1297 Edward-I
confirmed it in a modified form. The Magna Carta was supported in 1628 by the
Petition of Rights. In 1689, by the Bill of Rights, to form the platform for parliamentary
superiority over the Crown and to give documentary authority for the rule of laws in
England.
In addition to the above, the writings of St. Thomas Acquinas and Grotious also
reflected the view that human beings are endowed with certain eternal and inalienable
rights.

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 The expression fundamental rights of man find in the declarations and constitutional
instruments of many States. For instance, the Declaration of Independence of the
Thirteen United States of America in 1776, the Virginia Bill in 1789, 1865, 1869 and
1919 included rights of man. The French Declaration of the Rights of Man of 1789 led
other European Countries to include the provisions in their laws for the protection of
Human Rights. Since the beginning of the nineteenth century it was recognised by most
of the states that human beings possess certain Rights. Worth of the human personality
began to be realized.

6. CONCLUSION
The term Human Right denotes all those rights which are inherent in their nature
and without which we cannot live as human beings. The Human Rights being eternal part
of the nature of human beings are essential for development of individual personality and
human qualities, the intelligence, talent and consciences and to enable them to satisfy the
spiritual and other higher demands. Philosophical and pragmatic are the two main
approaches adopted to explain the nature and meaning of Human rights. The Human
rights are classified in three categories which includes human rights incorporated in the
International Covenant on Civil and Political Rights, 1966, the International Covenant on
Economic, Social and Cultural Rights, 1966 and Collective Rights, 1966. The expression
fundamental rights of man find in the declarations and constitutional instruments of many
States.
HUMAN RIGHTS UNDER THE UN CHARTER
UNIVERSAL DECLARATION OF HUMAN RIGHTS
(1) Write short note on Human Rights and Fundamental Rights?
(2) Discuss the provisions of Universal Declaration of Human Rights.

SYNOPSIS
1. Introduction
2. Commission on Human Rights
3. Universal Declaration of Human Rights, 1948
a) Preamble
b) Civil and Political Rights
c) Economic and Social Rights
4. Legal Effects of the Declaration
5. India and the Universal Declaration
6. Conclusion

1. INTRODUCTION
The preamble of the UN Charter re-affirmed: “faith in fundamental Human Rights,
in the dignity and worth of the human person, in the equal Rights of men and women and
of nations large and small.” The purpose of the United Nations are listed in Art. 1 Para 3
of the Charter, which reads as under-

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 “To achieve international co-operation in solving international problems of an
economic, social, cultural or humanitarian character, and in promoting and encouraging
respect for human rights and for fundamental freedoms for all without distinction as to
race, sex, language or religion.”
The promotion and encouragement for Human Rights is an undertaking to be
carried out, for all. Human Rights are thus universal and all-inclusive. The provisions in
the Charter also place emphasis on equality or non-discrimination, which is closely
linked with the concept of universality. Indeed they mutually reinforce each other. Art.
55 of the UN Charter provides:
With a view to creation of conditions of stability and well being which are
necessary for peaceful and friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, the United Nations shall
promote universal respect for, and observance of, Human Rights and fundamental
freedoms for all without distinction as to race, sex, language or religion.
Art. 62 of the Charter authorises the Economic and Social Council, to make
recommendations for the purposes of promoting respect for, and observance of human
rights and fundamental freedoms.
Art. 68 direct the Economic and Social Council to establish Commissions in economic
and social fields and for the promotion of human rights and such other commissions as
may be required for the performance of its functions.

2. COMMISSION OF HUMAN RIGHTS

General Assembly of United Nations Organisation on 12thFebruary, 1946 approved
Commission on Human Rights, appointed by the Economic and Social Council. The
Commission was composed of 18 members who were appointed by ECOSOC i.e.
Economic and Social Council. Each State member selected its own representative.
In 1962, the membership was increased to 21, then in 1966 to 32 and presently the
Commission has 53-members. The Commission was directed to prepare
recommendations and report on the following items:
a) On International Bill of Rights;
b) International Declaration on Conventions on Civil Liberties; Status of women,
Freedom of information, and similar matters;
c) The promotion of minorities;
d) The prevention of discrimination on the ground of race, sex, language, or religion.
The Commission was empowered to carry out studies, make recommendations and
drafts new International treaties. The Commission began its work in January 1947 under
the Chairmanship of Mrs. Franklene D. Roosvelt. The Drafting Committee, at its First
Session, prepared a preliminary draft of an International Bill of Human Rights, which
was considered by the Commission on Human Rights at its Second Session held from
December 2, to 17, 1947. The Commission discussed the report of the Drafting
Committee finally in Third Session held in June 1948 and finally adopted a Draft of
Declaration for submission to the Economic and Social Council. The Council adopted a
Resolution and submitted it before the General Assembly. The General Assembly

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adopted it on 10th December 1948, through a Resolution known as “Universal
Declaration of Human Rights” (UDHR). The Resolution was adopted without dissent
by 48 votes with 8 States abstaining. The declaration consisted 30 Art. s to besides the
Preamble.

3. UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

a) Preamble
The preamble proclaims the Universal Declaration of Human Rights as a common
standard of achievement for all peoples and for all nations, to the end that every
individual and every organ of society, keeping this in mind to promote respect for these
Rights and freedoms and by progressive measures, and observance, both among the
peoples of territories and their jurisdiction.
Thus the General Assembly recommends to every individual and every organ of the
society to do some thing with respect to Human Rights laid down in the declaration.
Enumeration of Rights in the Declaration
The Universal Declaration enumerated the basic postulates and principles of Human
Rights in a most comprehensive manner. It dealt not only with Civil and Political rights,
but with Social and Economic Rights as well.
b) Civil and Political Rights
Art. 2 to 21 deals with those Civil and Political Rights, which have been generally
recognised throughout the world. These are as follows:
1. Right to life, liberty and security of persons (Art. 3).
2. Freedom from slavery or servitude (Art. 4).
3. Prohibition against torture, inhuman or degrading treatment or punishment (Art. 5).
4. Recognition as a person before the law (Art. 6).
5. Equality before the law and equal protection of the law without any discrimination
Art. 7).
6. Effective remedy before the national tribunals (Art. 8).
7. Freedom from arbitrary arrest, detention or exile (Art. 9).
8. Right to a fair and public hearing by an independent and impartial tribunal (Art.
10).
9. Presumption of innocence until proved guilty in a public trial with all guarantees
necessary for defence in criminal cases (Art. 11, Para 1).
10. Freedom from ex-post-facto laws (Art. 11, Para 2).
11. Right to privacy, family, home and correspondence (Art. 12)
12. Right to freedom of movement and residence within the borders of a State (Art. 13,
Para 1)
13. Right of leave any country, including his own and to return to his country (Art. 13,
Para 2)
14. Right to seek and to enjoy in other countries asylum from prosecution (Art. 14,
Para 1)
15. Right to a nationality (Art. 15)
16. Right to marry and to found a family (Art. 16)

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17. Right to own property (Art. 17)
18. Right to freedom of thought, conscience and religion (Art. 18)
19. Right to freedom of opinion and expression (Art. 19)
20. Right to freedom of peaceful assembly and association (Art. 20)
21. Right to participate in the government of his country (Art. 21)
c) Economic and Social Rights
Art. 22 to 27 of the Declaration deal with Economic and Social Rights, which are
as follows:
1. Right to Social security (Art. 22).
2. Right to work and free choice of employment (Art. 23)
3. Right to rest and leisure (Art. 24)
4. Right to a standard of living adequate for the health of himself and of his family
(Art. 25)
5. Right to education (Art. 26)
6. Right to participate in Cultural life (Art. 27)
7. Right to good Social and international order (Art. 28)
The Declaration laid down under Art. 29 certain limitations to these Rights and
freedoms. It provides that every one has duties to the community in which alone the final
and full development of his personality is possible. Para 2 of Art. 29 provided that the
Rights shall be provided to the individuals subject to just requirements of morality, public
order and the general welfare in a democratic society. The above may, means that Rights
provided in the declaration are not absolute.

4. LEGAL EFFECT OF THE DECLARATION

The Declaration set for the international community a common standard of
achievement. It recognised the inherent dignity and the equal and inalienable rights of all
people in all nations. The Human Rights mentioned in the Declaration are universal,
indivisible, interdependent and interrelated. It is the duty of the States regardless of its
social, political and economic systems to promote and protect human rights.
The Declaration was not intended to be legally binding and therefore it did not
impose any legal obligations on the States to give effect to its provisions. In other words,
from the legal point of view, the Declaration was only a recommendation; it was not
strictly binding on the States. However, it has legal value in as much as it contains an
authoritative interpretation of the provisions of the Charter. The General Assembly
proclaimed the Declaration as “a common standard of achievement for all peoples and
all nations” and called upon all member States and all peoples to promote and secure the
effective recognition and observance of the rights and freedoms set forth therein. The
freedoms in order to inspire everybody to work for their progressive realisation. The
Assembly has declared that the Charter precepts embodied in the Declaration constitutes
basic principles of International Law.

5. INDIA AND THE UNIVERSAL DECLARATION

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 India was a signatory to the Declaration. The Indian Constitution, which came into
force from January 26, 1950, was greatly influenced by the Declaration. A number of
fundamental rights guaranteed to individuals in Part III of the Indian Constitution are
similar to the provisions of the Declarations are clear from the following chart:

Universal Declaration Indian

Constitution

Art. - 7 Equality before the law and equal protection of the law Art. -14
Art. - 7(2) Equality before the law and equal protection of the law Art. - 15(1)
without any discrimination
Art. - 21(2) Right to participate in the government of his country Art. - 16(1)
Art. – 19 Right to freedom of opinion and expression Art. - 19(1)(a)
Art. - 20(1) Right to freedom of peaceful assembly and association Art. - 19(1)(b)
Art. - 23(4) Right to work and free choice of employment Art. - 19(1)(c)
Art. - 13(1) Right to freedom of movement and residence within Art. - 19(1)(d)
the borders of a State
Art. - 17(2)
Right to own property Art. - 19(1)(f)
Art. - 11(2) Freedom from ex-post-facto laws Art. - 20(1)
Art. – 9 Freedom from arbitrary arrest, detention or exile Art. - 21
Art. – 4 Freedom from slavery or servitude Art. - 23
Art. – 18 Right to freedom of thought, conscience and religion Art. - 25(1)
Art. – 22 Right to Social security Art. - 29(1)
Art. - 26(3) Right to education Art. - 30(1)
Art. - 17(2) Right to own property Art. - 31
Art. – 8 Effective remedy before the national tribunals Art. - 32
The above chart shows that the Universal Declaration which was adopted just
before the Indian Constitution widely held to have provided the model for the latter’s
Human Rights guarantees. The founders of the Constitution, it appears were consciences
about the contents of the Declaration and therefore, they gave due recognition to its
provisions. In Keshwanand Bharati v/s. State of Kerala the Supreme Court observed that
the Universal Declaration of Human Rights may not be a legally binding instrument but it
shows how India understood the nature of human rights at the time Constitution was
adopted. Thus, although the Supreme Court has stated that the declaration cannot create a
binding set of rules and that even international treaties may at best inform judicial
institutions and inspire legislative action, constitutional interpretation in India has been
strongly influenced by the declaration. Further, the declaration has been frequently
referred to the decisions of the Supreme Court and the High Courts.

6. CONCLUSION
The draft of declaration sent by Economic and Social Council was adopted on
10th December, 1948 by General Assembly through resolution known as, ‘’Universal

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Declaration of Human Rights’’ (UDHR). This declaration dealt with not only Civil and
Political right, but also Social and Economic Rights as well. The Declaration set for the
international community a common standard of achievement. It recognised the inherent
dignity and the equal and inalienable rights of all people in all nations. The Human
Rights mentioned in the Declaration are universal, indivisible, interdependent and
interrelated. It is the duty of the States regardless of its social, political and economic
systems to promote and protect human rights.

COVENANT ON CIVIL AND POLITICAL RIGHTS

Qtn. What are the human rights of women under the international instruments?

SYNOPSIS
1. Introduction
2. Human Rights of women
a. Universal Declaration of Human Rights
b. International Covenant on Civil and Political Rights and International
Covenant
on Economic, Social, and Cultural Rights.
c. Elimination of All form of Discrimination against women
d. Human Rights of women in India
3. Conclusion

1. INTRODUCTION
The Preamble of the Charter of the United Nations provides for ‘to reaffirm’ faith in
fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women. There are number of provisions in the Charter of United
Nations and other Human Rights instruments which provide for the protection and
advancement of the rights of women.
Art. 1 of the Charter lays down that one of the purposes of the United Nations is ‘to
achieve international co-operation in solving international problems of an economic,
social and cultural or humanitarian character, and in promoting and encouraging respects
for human rights and fundamental freedoms for all without distinction as to race, sex,
language or religion.’
Art. 8 of the Charter lays down that ‘the United Nations shall place no restrictions
on the eligibility of men and women to participate in any capacity and under conditions
of equality in its principal and subsidiary organs’.
Art. 55 of the Charter also lays emphasis upon the promotion of universal respect
for, an observance of, human rights and fundamental freedoms for all without distinction
as to race, sex, language or religion. Thus the principle of equality of men and women in
the matter of promotion and observance of human rights and fundamental freedoms has
been fully established under the Charter of United Nations.

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2. HUMAN RIGHTS OF WOMEN
a) Universal Declaration of Human Rights
Art. 1 of this Declaration lays down that ‘all human beings are born free and equal
in dignity and rights.
Art. 2 provides that ‘everyone is entitled to all the rights and freedoms set forth in
this Declaration, without distinction of any kind including sex.
It clearly provides that all the rights and fundamental freedoms incorporated in the
Universal Declaration of Human Rights are available equally to both men and women
without any distinction.
b) International Covenant on Civil and Political Rights and International
Covenant on Economic, Social, and Cultural Rights.
This basic principle has been incorporated in both the International Covenant i.e. the
International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights. The following International Human Rights
instruments also incorporates the principle of equal rights of men and women –
(i) The Convention on the Elimination of All Forms of Discrimination against Women;
(ii) The Convention on the Political Rights of Women;
(iii) The Convention on the Nationality of Married Women;
(iv) The Convention and recommendation on Consent to Marriage, Minimum age for
Marriage and Registration of Marriage;
(v) The Supplementary Convention on the Abolition of Slavery, the Slave Trade, the
Institution and Practices Similar to Slavery;
(vi) The Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others;
(vii) The Human Rights instruments adopted by the International Labour Conference;
(a) The Underground World (Women) Convention, 1935;
(b) The Night Work (Women) Convention (Revised), 1948;
(c) The Equal Remuneration Convention, 1951;
(d) The Discrimination (Employment and Occupation) Convention, 1958, and
(e) The Workers with Family Responsibilities Convention, 1981.
(viii) The Convention against Discrimination in Education, adopted by the General
Conference of the United Nations Educational Scientific and Cultural Organisation
in 1960.
c) Elimination of All form of Discrimination against women
For the promotion of status of women in various field and to eliminate
discrimination against women, following two organs have been established under the
United Nations system –
(1) Commission on the Status of the Women;
(2) Committee on the Elimination of Discrimination against Women.
The most important convention on the Elimination of All Forms of Discrimination
against Women was adopted by the General Assembly on December 18, 1979. The
convention came into force in 1981. The Convention condemned discrimination against

13
women in all its forms and agreed to pursue by all appropriate means to eliminate
discrimination against women and, to this end they undertook :
(a) to embody the principle of the equality of men and women in their national
constitutions or other appropriate legislation if not yet incorporated therein;
(b) to adopt appropriate legislative and other measures prohibiting all discrimination
against women;
(c) to establish legal protection of the rights of women on an equal basis with men;
(d) to refrain from engaging in any act or practice of discrimination against women;
(e) to take all appropriate measures to eliminate discrimination against women by any
person, organisation or enterprise.
Art. 9 of the Convention on the Elimination of All Forms of Discrimination against
Women recognised following rights to the women –
(i) To participate in the elaboration and implementation of development planning at all
levels;
(ii) To have access to adequate health care facilities, including information, counseling
and services in family planning;
(iii) To benefit directly from social security programmes;
(iv) To obtain all types of training and education, formal and non-formal, including that
relating to functional literacy, as well as, the benefit of all community and extension
services, in order to increase their technical proficiency;
(v) To organise self-help groups and cooperatives in order to obtain equal access to
economic opportunities through employment or self employment;
(vi) To participate in all community acitivities;
(vii) To have access to agricultural credit and loans, marketing facilities, appropriate
technology and equal treatment in land and agrarian reform as well as in land
resettlement schemes; and
(viii) To enjoy adequate living conditions, particularly in relation to housing, sanitation,
electricity and water supply, transport and communications.
On the recommendation of the Commission on the Status of Women, the Economic
and Social Council has initiated a reporting system on the implementation of the
declaration. All the member States, the specialized agencies and the non-Governmental
organisations are requested to give void publicity to the principles contained in the
declaration and send report to the Secretary General regarding the actions taken by them
for the implementation of those principles. The Secretary General, in turn, is required to
send his report on the information so received to the Commission on the status of women
for its consideration.
International Women’s Year 1975
The General Assembly adopted two resolution on 18th December 1972 –
(a) that all the Member States and all international organisations should take steps to
ensure full realization of the rights of women and their advancement on the basis of
Declaration on the Elimination of Discrimination against Women, and
(b) to observe 1975 as International Women’s Year.
World Conference of the International Women’s Year
14
 It was held at Mexico City and conference adopted various resolution for the
promotion and protection of rights of women.
United Nations Development Fund for Women
The United Nations Development Fund for Women was established on 1 st July
1985 and it is recommended that Governments, International Organization, National
Committees shall contribute to it and the fund is to be utilised for the identification and
study of emerging issues relating to women such as violence against the women and
assistance to refugee women.
International Research and Training Institute for the Advancement of Women –
This institute has been established as an autonomous body under the auspicious of
United Nations and funded by voluntary contributions. This institution is to carry its
activities with special attention to need of women by developing countries and their
integration in the development process.
Number of the World Conferences of the United Nations for Women was held since
1976 to 2000 in the year 2000 a special session of the General Assembly on Women was
held in New York to assess the progress which nations have made in implementation of
their commitment to gender equality. Women representatives of 180 nations and
hundreds of non-governmental organizations and many women group have participated
in the deliberations. The final document emerged out of the conference lays emphasis
upon –
(1) measures to increase women’s participation in political parties and parliaments;
(2) Measures for women’s health and violence against them;
(3) Women’s right to inheritance, their right to property and right to housing.
Thus concrete proposals have been incorporated in the document for the
improvement of women’s health and general conditions of life.
d. Human Rights of women in India
In order to rectify the unequal position of women & to give meaning & content for
their rights, many laws were enacted, some before the adoption of the Constitution and
more thereafter. Based on their nature, they can be broadly categorised as Constitutional
Law. Labour Laws, Criminal Laws, Family Laws and other Civil Laws. Some of these
laws are listed below -
Constitution of India -
Art. 14 of the Constitution provides that ‘the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.’
Simply it proclaims equality of all persons.
Art. 15(1) prohibits ‘the State shall not discriminated against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them.’ Simply it states that there
can be no discrimination between citizens on the ground of religion, race, caste, sex,
place of birth or any of them.
This right is available to the citizens against the state only.
Art. 15 (3) proclaims ‘Nothing in this Art. shall prevent the State from making any
especial provision for women and children.

15
 Simply Art. 15(3) provides for the State to make special provision in relation to
women and children. Based on that well accepted logical special provisions are made to
guard the interest of women and children, in several laws, both civil and criminal.
Art. 16(1) and Art. 16(2) prohibits discrimination in general and also
discrimination because of sex in offices and those employed under the State.
Art. 39(a) of the Constitution provides that the State shall in particular direct its
policy towards securing that citizens, men and women equally, have the rights to an
adequate means of livelihood. This is also a directive principle of State policy.
Art. 39(c) of the Constitution requires that the State secure health and strength of
workers, men and women and that children are not abused and citizens are not forced by
economic necessity to enter avocations unsuited to their age and strength. This again is a
directive principle of State policy.
Art. 51(A) (e) of the Constitution provides that it will be the duty of every citizen of
India to renounce practices derogatory to the dignity of women.

3. CONCLUSION
The Human Rights of the women have been recognized under the various
International instruments and under Municipal laws. There shall not be any
discrimination on the ground of sex therefore, for the promotion of the status of women
in various field and to eliminate discrimination against women Commission on the Status
of women and Committee on the elimination of discrimination against women are
established. The Economic and Social Council on the recognition of these Commission
and Committees has initiated a reporting system on implementation of various covenant
protecting Human Right of Women.

RIGHT OF DISABLED AND CHILDREN

Qtn. What are the human rights of the disabled Persons.? How do
international instrument recognise their rights?

A) DISABLED PERSON

SYNOPSIS
1. Introduction
2. Disabled Person
a) The Declaration on the Rights of Mentally Retarded Persons
b) The Declaration on the rights of Disabled Person
3. International year of Disabled person
4. United Nations Decade of Disabled Persons
5. Conclusion

1. INTRODUCTION

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 The disabled person needs more protection to prevent them from exploitation, abuse
and degrading treatment. Various provisions are incorporated for assisting disabled
persons to develop their abilities and promoting their integration in normal life. The
General Assembly passed various resolutions to help them in the physical and
psychological adjustment to society and to promote all national and international efforts
to provide disabled persons with proper assistance, training, care and guidance and
promoting effective measures for the prevention of disability for rehabilitation of
disabled person.

2. DISABLED PERSON
For the improvement of conditions of disabled person the General Assembly, has
adopted following two declarations–
a) The Declaration on the Rights of Mentally Retarded Persons, 1971
b) The Declaration on the Rights of Disabled Persons, 1975
a) The Declaration on the Rights of Mentally Retarded Persons, 1971 –
General Assembly has adopted this declaration to provide help to mentally retarded
persons in order to enable them to develop their abilities and promoting their integration
in a normal life. The Declaration provides a framework within which national and
international actions should be initiated for the advancement of the rights set forth in the
Declaration. The Declaration lays down some of the following principles –
i) The mentally retarded person has the same right as other human rights;
ii) The mentally retarded person has a right to proper medical care and physical
therapy to develop his ability and maximum potential;
iii) The mentally retarded person has a right to economic security and to a decent
standard of living;
iv) The mentally retarded person should lie with his own family and to participate in
different firms of community life;
v) The mentally retarded person has a right to qualified guardian to protect his
personal well-beings and interests;
vi) The mentally retarded person has a right to protection from exploitation, abuse and
degrading treatment;
b) The Declaration on the Rights of Disabled Persons, 1975 –
This Declaration was adopted by the General Assembly keeping in view the
necessity of preventing physical and mental disabilities and of assisting disabled persons
to develop their abilities and promoting their integration in normal life. The Declaration
lays down some of the following principles–
i) The disabled person shall enjoy all the rights contained in this Declaration without
distinction or discrimination on the basis of race, colour, sex, language, religion,
state of health, birth, etc.;
ii) The disabled person have inherent rights to respect for their human dignity, to enjoy
a decent life;
iii) Disabled persons have the same civil and political rights as other human beings;

17
iv) Disabled persons are entitled to the measures designated to enable them to become
as self-reliant as possible;
v) Disabled persons have the right to medical, psychological and functional treatment;
vi) Disabled persons have the right to economic and social security;
vii) Disabled persons have a right to live with their family and to participate in all
social, creative or recreational activities;
viii) Disabled persons shall be protected against all exploitation and treatment of a
discriminatory, abusive or degrading nature.
ix) Disabled persons shall be able to avail themselves of qualified legal aid when such
aid proves indispensable for the protection of their persons and property.

3. INTERNATIONAL YEAR OF DISABLED PERSON, 1981 –

The General Assembly on 16 December 1978, decided to observe the Year 1981 as
International Year for Disabled Persons to help them in the physical and psychological
adjustments to society and to promote all national and international efforts to provide
disabled persons with proper assistance, training, care and guidance and promoting
effective measures for the prevention of disability for rehabilitation of disabled person.

4. UNITED NATIONS DECADE OF DISABLED PERSONS –

The General Assembly in its Resolution of 3 December 1982, decided to observe
the period 1983-1992 as United Nations Decade of Disabled Persons. The General
Assembly requested the Member-States to utilise this period for implementing the World
Programme of Action for Disabled Persons. The General Assembly also established a
Trust Fund for the International Year of disabled person. This Trust Fund was renamed as
the Voluntary Fund for the United Nations Decade for Disabled Persons. The General
Assembly have acknowledged that 500 million persons are suffering disability of one
form or other out of whom 400 million persons belonging to developing countries.

5. CONCLUSION
Disabled person comes in the group of vulnerable class who needs more protection
of law to avoid their exploitation. Therefore, the international convention and declaration
on the Rights of Disabled Person, 1975 provides various Civil and Political Rights. It also
provides Economic, Social and Cultural Rights to develop their abilities and promoting
their integration in normal life.

B) RIGHT OF CHILD

Qtn. What are the human rights of Children? How do international instrument
recognise their rights?

SYNOPSIS
1. Right of Child
2. United Nations Children’s Fund
18
3. International year of Child 1979
4. The Convention on the Right of the Child
5. Rights to family development is the most important right under this
Convention given
to the child
6. World summit for Children
7. World declaration on the Survival, Protection and Development of Children
1990
8. Rights of Child in India

1. RIGHT OF CHILD
The League of Nations by the Geneva Declaration of 1924 made attempt to enforce
right of child in 1946 by the temporary Social Commission of the Economic and Social
Council. Geneva Convention of 1924 consisted of five points in respect of the right of the
child on the basis of which General Assembly adopted a Declaration in 1959. This
Declaration on the Right of Child contains ten points. Some of the rights are that -
(a) every child enjoy all rights without distinction on account of race, colour, sex,
language, religion, political or other opinion, etc.;
(b) The child shall enjoy special protection and shall be given opportunities and
facilities by law and other means to enable him to develop in all fields;
(c) Every child shall be entitled from his birth to a name and nationality;
(d) Child shall enjoy the benefits of social security;
(e) The child who is physically, mentally and socially handicapped shall be given the
special treatment, education and care required by the particular condition;
(f) The child is entitled to receive education;
(g) Child shall be given first preference to receive protection and relief, etc.

2. UNITED NATIONS CHILDREN’S FUND – (UNICEF)

The General Assembly established the United Nations International Children’s
Emergency Fund in 1946. The purpose of this fund was to provide assistance to the
children. The Economic and Social Council supervise and review the work of UNICEF
periodically. The main function of UNICEF is to provide assistance to the Government of
developing countries in improving the life of children.

3. INTERNATIONAL YEAR OF CHILD, 1979

The General Assembly decided to observe the Year 1979 as International Year of
Child for the improvement of the lives of the children. The main objective was to provide
a framework and to promote recognition to the children’s right.

4. THE CONVENTION ON THE RIGHTS OF THE CHILD

General Assembly on 20 November 1989 adopted United Nation Convention on the
Rights of Child and it came into force on 2nd September 1990. This Convention consist
of 54 articles that deals with rights of a child, their implementations, etc. Art. 1 of the
19
Convention defines the term ‘child’ according to it a child means every human being
below the age of 18 years. This Convention gives following rights to the child civil rights
and liberties of a child which includes –
(i) Every child has the inherent right to life and shall be ensured to the maximum
extent possible the survival and development;
(ii) Right to name and nationality – Every child shall have a right to be registered
immediately after birth, the right to a name and nationality and the right to know
and be cared for by his or her parents;
(iii) Right to identity. Every child has right to preserve his or her identity, nationality,
name and family relations;
(iv) The Right to freedom of expression. Every child has right to freedom of expression
which includes freedom to seek, receive and impart information and ideas of all
kinds;
(v) Every child has right to freedom of thought, conscience and religion;
(vi) Every child has right to freedom of association and a freedom of peaceful assembly;
(vii) The Right to privacy. No child shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, home or correspondence, or to unlawful
attacks on his or her honour and reputation;
(viii) Children of ethnic, religious or linguistic minorities or of indigenous populations
shall have right to enjoy their own culture and to practice their own religion and
language;
(ix) No child be subjected to torture or other cruel, inhuman or degrading treatment or
punishment including capital punishment or life imprisonment without possibility of
release.

5. RIGHTS TO FAMILY DEVELOPMENT IS THE MOST IMPORTANT

RIGHT UNDER THIS CONVENTION GIVEN TO THE CHILD.
It includes a right to child not to be separated from his or her parents; a child is
entitled to family environment and protection from all forms of violence, prevention of
illicit transfer etc. The Convention also provides the following rights –
(i) Educational right of child;
(ii) The right to special protection in emergency;
(iii) The right of child in relation to administration of justice;
(iv) The right against exploitation;
(v) The Right to protection against drug abuse;
This Convention has widened the perspective of the rights of the child and also for
effective implementation of those rights contained therein. The Convention lay down
certain measures such as the obligation of the State Parties to respect and ensure the
rights set forth in the present convention to each child within their jurisdiction, their
obligation to provide information to both adults and children regarding the rights of the
child and their obligation to publish their reports on the recommendation of rights of the
child.

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6. WORLD SUMMIT FOR CHILDREN
The World Summit for Children was convened at United Nations Headquarters,
New York on 30 September 1990. It was convened at the initiative of Canada, Ehypt,
Mali, Mexico, Pakistan and Swedene.
7. WORLD DECLARATION ON THE SURVIVAL, PROTECTION AND
DEVELOPMENT OF CHILDREN 1990
The Declaration provides that children are entitled to joy and peace, playing,
learning and growing which are necessary for the harmonious development of children.
But there are many children who face various problems and suffer in their very
childhood. The Declaration lays down 10-point programme for the protection of the
rights of children and improvement in their lives.

8. RIGHT OF CHILD IN INDIA

Constitutional provisions
The Constitution of India guarantees certain Fundamental Rights to all Indian
citizens including children. A Comparative study of the Universal Declaration of Human
Rights, the Un Convention on the Rights of the Child and part III and IV of the Indian
Constitution would show that the rights envisaged in the International Instruments are
more or less provided for adequately in the International Instruments are more or less
provided for adequately in the Constitution. Briefly, the rights guaranteed under the
Constitution are:
I. Right to equality:
Art. 14- Equality before law;
Art. 15- Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth;
Art. 15(3) State can make separate laws for Women and Children.
Art.16- Equality of opportunity in matters of public employment;
Art. 17- Abolition of untouchability;
Art. 18- Abolition of titles.
II. Right to Freedom:
Art. 19- Protection of certain rights regarding freedom of speech etc;
Art. 20- Protection in respect of conviction for offences;
Art. 21- Protection of life and personal liberty;
Art. 22- Protection against detention in certain cases.
III. Right Against Exploitation:
Art. 23- Prohibition of traffic in human beings and forced labour;
Art. 24- Prohibition of employment of children in factories, etc.
IV. Right to Freedom of Religious:
Art. 25- Freedom of conscience and free profession, practice and propagation of
religion;
Art. 26- Freedom to manage religious affairs;
Art. 27- Freedom as to payment of taxes for promotion of any particular religion.

21
Art. 28- Freedom as to attendance at religious instruction or religious worship in
certain educational institutions.
V. Cultural and Educational Rights:
Art. 29- Protection of interest of minorities.
Art. 30- Rights of minorities to establish and administer educational institutions.
Directive Principle
Art.39 (e), Certain Directive Principle of State Policy to be followed by the State:
The State shall in particular erect its policy towards securing - that the health and
strength of workers, men and women, and the tender age of children are not abuse and
that citizen are not forced by economic necessity to enter avocation (employment),
unsuited to their age or strength.
Art.39 (f) (42nd Constitutional Amendment, 1976 with effect from 3-1-77)
The State shall in particular, direct its policy towards securing that children are
given opportunities and facilities to develop in healthy manner and in condition of
freedom and dignity and that childhood and youth are protected against exploitation and
against moral and material abandonment (removal).
Art.45 Provisions for free and compulsory education for children:
The State shall endeavour to provide, within a period of 10 years from commencement of
this Constitution, for free and compulsory education for all children until they complete
the age of 14 years.

C) RIGHT OF OLDER PERSONS

The United Nations is concerned not only with the quality of the life of human
beings, but it is also equally concerned with the longevity of the human beings. As a
result of the gradual decline in death rates and rising life expectancy, it is expected that
all countries of the world during the next two decades will witness an increase in the
proportion of their population aged 60 or over. By the year 2020 more than 1000 million
people aged 60 years and above will be living in the World. The United Nations is
committed to help those countries, which are facing the challenge for the needs of elderly
persons and using effectively their contribution to development.
The question of ageing was first debated at the United Nations in 1948 at the
initiative of Argentina. The issue was again raised by Malta in 1969. In 1971 the General
Assembly asked the Secretary-General to prepare a comprehensive report on the elderly
and to suggest guidelines for national and international action. In 1978, Assembly
decided to hold a World Conference on the Ageing. Accordingly, the World Assembly on
Ageing was held in Vienna from July 26 to August 6, 1982 wherein an International Plan
of Action on Ageing was adopted. The overall goal of the Plan was to strengthen the
ability of individual countries to deal effectively wit the ageing in their population,
keeping in mind the special concerns and needs of the elderly. The plan attempted to
promote understanding of the social, economic and cultural implications of ageing and of
related humanitarian and developed issues. The Plan made 62 recommendations for
action in many areas including health and nutrition, protection of elderly consumers,
housing and environment, family, social welfare, income security an employment and
22
education. The Assembly in subsequent years called on governments to continue to
implement its principles and recommendations. The Assembly urged the Secretary-
General to continue his efforts to ensure that follow-up action to the Plan is carried out
effectively.
In 1990, the General Assembly designed October 1 as the International Day for the
Elderly, later renamed the International Day for Older Persons.

Principles for Older Persons:

The General Assembly on December 16, 1991 by a resolution adopted a set of 18
Principles for Older Persons. These principles were related to the independence,
participation, care, self-fulfillment and the dignity of the older persons. Some of the
Principles are as follows:
(a) Older Persons should have the opportunity to work and determine when to leave the
work place.
(b) Older Persons should remain integrated in society and participate actively in the
formulation of policies, which effect their well-being.
(c) Older Persons should have access to health care to help them maintain the optimum
level of physical, mental an emotional well-being.
(d) Older Persons should be able to pursue opportunities for the full development of
their potential and have access to educational, cultural, spiritual and recreational
resources of society.
(e) Older Persons should be able to live in dignity and security and should be free from
exploitation and mental and physical abuse.
Governments were encouraged to incorporate the principles into their national
programmes.
The Assembly on October 15 and 16, 1992 convened a Special International
Conference to mark the tenth anniversary of the adoption of the 1982 International Plan
of Action on Ageing. Later, the General Assembly on November 11, 1992 adopted a
Proclamation on Ageing by which it decided to observe 1999 as the International year of
Older Persons. The Proclamation calls for international co-operation to be promoted for
life-long health, income generation and new forms of productive ageing. It urges national
initiative to view older persons as contributors to their societies and not as burden;
engage the entire population in preparing for the later stages of life; and help and young
generations to co-operate in creating a balance between tradition and innovation in
economic, social and cultural development.
Second World Assembly on Ageing
The Second World Assembly on Ageing was held in Madrid in April 2002. It
adopted the International Plan of Action and a Political Declaration which stressed the
crucial importance of incorporating ageing issues into all development plans. In the plan
of action three priorities were laid down for older persons, i.e., older persons and
development, advancing health and well-being into old age and enabling the supportive
environments.

23
 The first priority-older persons and development focused on eight issues which
included for urgent action to ensure the continuing integration and empowerment of older
person, thus, enabling them to participate actively in society, development and the labour
force. Governments should focus on involving older persons decision-making, creating
employment opportunities for those who wish to work and improving living conditions
and infrastructure in rural areas. They should also alleviate poverty in rural areas,
integrate older migrants within new communities and create equal opportunities for
education and training.
Under the second priority advancing health and well-being into old age-
governments should reduce the effects of factors increasing disease and dependence in
older age, develop policies to prevent ill health and provide access to food and adequate
nutrition. The needs and perceptions of older persons should be integrated into the
shaping of health policy. The third priority-ensuring enabling and supportive
environments urged recommendations for improving housing and living environments of
older persons, promoting a positive view of ageing and enhancing public awareness of
the important contributions of older persons. It also stated the availability of accessible
and affordable transport for older persons, providing a continuum of care and services for
older persons and supporting the care-giving role of older persons.
The final section of the Plan of Action stated national and international measures
aimed at adequate implementation and follow-up. It noted that a vital first step towards
implementation would be to mainstream ageing and the concerns of older persons into
national development frameworks and poverty eradication strategies.
THE RIGHTS OF MINORITIES

Qtn. What are the Human Rights of triable and minorities? How International
Instruments recognize their rights?

SYNOPSIS
1. The Rights of Minorities
2. Provisions for minorities in Indian Constitution
a) Protection of interest of minorities
b) Rights of minorities to established and administer educational

1. THE RIGHTS OF MINORITIES

The Rights of Minorities : National, Ethnic, Religious or Linguistic –
Inspired by the provisions of Art. 27 of the International Covenant on religious or
linguistic minorities, the General Assembly on December 18, 1992 adopted the
Declaration on the Rights of Persons belonging to National or Ethnic, Religious or
Linguistic Minorities. The Declaration proclaimed that promoting and protecting the
Rights of such minorities contribute to the Political and Social stability of States in which
they live. The declaration consisting of nine Arts stated the following Rights to such
persons.

24
a) The existence and the national or ethnic, Cultural, religious and linguistic identity of
minorities are to be protected within their respecting territories by laws and other
measures (Art. I).
b) Persons belonging to minorities have the Rights to enjoy their own culture to
profess and practice their own religion and use their own language. (Art. 2)
c) Minorities may exercise their Rights individually as well as in community with
other members of their group without any discrimination (Art. 3)
d) States should provide adequate opportunities for persons belonging to minorities to
learn their mother tongue and to participate fully in the Economic progress and
development in their country (Art. 4).
States are required to co-operate on questions relating to persons belonging to
minorities, inter alia, exchanging information and experiences, in order to promote
mutual understanding, and confidence. Measures taken by States to ensure the effective
enjoyment of the Rights shall not prima facie by considered contrary to the principle of
equality contained in the Universal Declaration of Human Rights. The World Conference
on Human Rights held in Vienna in 1993 urged all States and the international
community to promote and protect Rights of persons belonging to national or ethnic,
religious and linguistic minorities in accordance with the Declaration on the Rights of
Persons belonging to National accordance with the Declaration on the Rights of Persons
belonging to National or Ethnic, Religious and Linguistic Minorities.

2. PROVISIONS FOR MINORITIES IN INDIAN CONSTITUTION

a) Cultural and Educational Right : (Art. 29, 30)
Art. 29 - Protection of interests of minorities:
i) Any section of the citizens residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have the right to
conserve the same.
ii) No citizen shall be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them.
b) Art. 30 - Right of minorities to establish and administer educational
Institutions:
ii) All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
ii) In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to clause
(1), the State shall ensure that the amount fixed by or determined under such law for
the acquisition of such property is such as would not restrict or abrogate the right
guaranteed under that clause)
iii) The state shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a
minority, whether based on religion or language.

25
THE RIGHTS OF TRIBALS OR INDIGENOUS PERSONS

SYNOPSIS
1. Definition
2. Draft Declaration on the Rights of Indigenous peoples

1. DEFINITION
Indigenous peoples or aboriginal people are those who were living on their lands
before settlers came from elsewhere. They are the descendants of those who inhabited a
country or a geographical region at the time where peoples of different cultures or ethnic
origin arrived, the new arrivals latter becoming dominant through conquest, occupation,
settlement or other means. Thus, they are the people who belong to pre-invasion and pre-
colonial societies and they consider themselves distinct from other sections of the
societies prevailing in those territories or part of them. Indigenous peoples are also called
‘first peoples’ tribal peoples, aboriginals and autochthons. Indigenous and tribal peoples
in many parts of the World do not enjoy their fundamental rights in the State in which
they live to the same degree as the rest of the population. Presently, they are non-
dominant sections of the society because of their poverty and illiteracy.
It has been estimated that the number of indigenous person are approximately 300
million and they are spread in 70 countries from Australia to the Artic. More than half of
them live in China and India, some 10 million in Myanmar (Burma) and 30 million in
South America. While the situation and histories of these peoples vary considerably, their
common problems include the loss of degradation of native lands due to the
decolonization or development and the threat of involuntary assimilation into the
dominant cultures that surround them. They are required to be provided their cultural
protection on land and human rights by their respective States. Vienna Declaration
recognised the importance of the promotion and protection of the rights of indigenous
peoples and states that States should, in accordance with international law, take
concerned positive steps to ensure respect for all human rights and fundamental freedoms
of indigenous people on the bass of equality and non-discrimination, and recognized the
value and diversity of their distinct identities, cultures and social organisation.
International action to protect the human rights of the indigenous peoples has been
limited. International labour Organisation (ILO) for the first time in 1953 completed a
study and led to the adoption of a Convention (No. 107). The Convention was least
effective to provide rights to the indigenous peoples and therefore the ILO in 1989
adopted another Convention which is known as the Convention (No. 169) concerning
Indigenous and Tribal Peoples in Independent Countries. The Convention came into force
on September 5, 1991.
The Convention applies to tribal peoples in independent countries whose social,
cultural and economic conditions distinguish them from other sections of the national
community, and whose status is regulated wholly or partially by their own customs or
traditions or by special laws or regulations. Article 1, Para (1) (a)

26
 The Convention also applies to peoples in independent countries who are regarded
as indigenous on account of their descent from the populations which inhabited the
country, or a geographical region to which the country belongs, at the time of conquest or
colonization or the establishment of present State boundaries and who, irrespective of
their legal status, retain some or all of their own social, economic, cultural and political
institutions. Article 1, Para (1) (b).
The Convention states, inter alia the collective and individual land rights and
ownership of natural resources in these people’s traditional habitats.

2. DRAFT DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES.

The Sub-Commission on Prevention of Discrimination and Protection of Minorities
in 1982 initiated a study of discrimination against indigenous peoples and established a
Working Group on Indigenous Populations. The Working Group was intended to review
the policies of Governments and to prepare the draft a universal declaration on the rights
of indigenous peoples. The Sub-Commission on Prevention of Discrimination and
Protection of Minorities after having considered the Draft Declaration prepared by the
Working Group adopted in 1984 the Draft Declaration on the Rights of Indigenous
Peoples. Main provisions of the Declaration are as follows :
a) Indigenous peoples have the right to the full and effective enjoyment of all human
rights and fundamental freedoms recognized in the Charter of the United Nations,
the Universal Declaration of Human Rights and International Human Rights Law.
(Article 1).
b) Indigenous individuals and peoples are free and equal to all other individuals and
peoples in dignity and rights, and have the right to be free from any kind of adverse
discrimination, in particular that based on their indigenous origin or identity.
(Article 2).
c) Indigenous peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development. (Article 3).
d) Indigenous peoples have the right to maintain and strengthen their distinct political,
economic, social and cultural characteristics, as well as their legal systems. (Article
4).
e) Every indigenous individual has the right to a nationality. (Article 5).
f) Indigenous peoples have the collective right to live in freedom, peace and security
as distinct peoples. (Article 6).
g) Indigenous peoples have the collective and individual right to maintain and develop
their distinct identities and characteristics. (Article 8).
h) Indigenous peoples and individuals have the right to belong to an indigenous
community or nation, in accordance with the traditions and customs of the
community or nation concerned. (Art. 9)
i) Indigenous peoples have the right to special protection and security in periods of
armed conflict. (Art. 11)

27
j) Indigenous peoples have the right to special protection and security in periods of
armed conflict. (Art. 11)
k) Indigenous peoples have the right to practice and revitalize their cultural traditions
and customs. (Art. 12)
l) Indigenous peoples have the right to have dignity and diversity of their cultures,
traditions, histories and aspirations. (Art. 16)
m) Indigenous peoples have the right to enjoy fully all rights established under
international labour law and international labour legislation. (Art. 18)
n) Indigenous peoples have the right to determine and develop priorities and strategies
for exercising their right to development. (Art. 23)
o) Indigenous peoples have the right to the conservation, restoration and protection of
the total environment and the productive capacity of their lands, territories and
resources. (Art. 28)
p) Indigenous peoples have the collective right to determine the responsibilities of
individuals to their communities. (Art. 34)
The Draft Declaration also stated under Art. 37 that States shall take effective and
appropriate measures, in consultation with the indigenous peoples concerned, to give full
effect to the above rights. The rights recognised in the draft declaration shall be adopted
by the States and shall be included in national legislation in such a manner that
indigenous peoples can avail themselves of such rights in practice. It was also stated
under Art. 40 that the organs of the United Nations and the specialized agencies and other
inter-governmental organisations shall contribute to the full realization of the rights
provided in this Declaration through the mobilization, inter alia of financial cooperation
and technical assistance. Art. 41 provided that the United Nations shall take necessary
steps to ensure the implementation of rights stated in the Declaration including the
creation of a body at the highest level with special competence in this field and with the
direct participation of indigenous peoples.
The Working Group completed its work on the Draft Declaration in 1994, however
it has been meeting since then to review the human rights development in this regard. In
Seventeenth session held in July 1999 it discussed the relationship of indigenous peoples
and their relationship to land. The Working Group also considered a report on treaties
and other agreements between States and indigenous population. It also debated for the
establishment of a permanent forum for indigenous peoples within the United Nations
system and the drafting of a Declaration on the rights of indigenous populations.
In July 2000, Economic and Social Council established the Permanent Forum on
Indigenous Issues as a subsidiary organ, consisting of sixteen members, eight of whom
are to be nominated by governments and elected by the Council, and other eight members
are to be appointed by the Council President. The Permanent Forum will have the
greatest impact on the issues of human rights, environment and development. Indigenous
people will be able to make proposals-very radical and meaningful – concerning socio-
economic and sustainable development. They will be able to make concrete proposals
based on experience and knowledge and will have an impact on the whole of the United

28
Nations system. As to the declaration on the rights of indigenous populations no
substantive progress has been made by the year 2000.

D) REFUGEES
Refugees are referred to those persons who leave their States in which they have
permanent residents to escape persecution or military action. In order to curb the problem
of refugees and to provide international assistance, League of Nations’ High
Commissioner for Refugees was appointed in 1921. The problem of refugees assumed
un-proportionate dimensions after Hitler’s accession to power in 1933 and his annexation
of Austria (1938) and of Chezchoslovakia (1939), and after the World War II which
dislocated the civilian population.
The United Nations Relief and Rehabilitation Administration (UNRRA) was
established on Nov. 9, 1943 to bring aid to war - stricken areas of the World. With the
end of UNRRA, the United Nations created the International Refugees Organisation
(IRO), the constitution of which was approved by the United Nations’ General Assembly
in Dec. 1946. IRO assumed the functions of the UNRRA and was charged with the
protection and resettlement of refugees and displaced persons. The IRO was replaced by
the Office of the United Nations’ High Commissioner for Refugees (UNHCR) in 1951.
The most important international instrument drawn up relating to problems of
refugees was the Convention Relating to the Status of Refugees of 1951 which was
adopted after considering that the Charter of the United Nations and the Universal
Declaration of Human Rights have affirmed the principle that human beings shall enjoy
fundamental Rights and freedoms without discrimination. The Convention sets out and
codifies the minimum Rights of refugees, such as, the Rights to work, the education and
to Social security, freedom of religion and access to courts. It ensures that contracting
States shall not expel a refugee lawfully on their territory save on grounds of national
security or public order, and that no such refugees shall be expelled or returned in any
manner whatsoever to the frontiers of territories where life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular Social
group or Political opinion.
The Protocol relating to the States of Refugees, which extended the scope of the
1951 Convention to the States of Refugees was adopted in 1967. States Parties to the
Protocol agreed to treat refugees in the way they treat their own citizens so that equal
status may be enjoyed by all refugees.

E) NILABATI BEHARA V. STATE OF ORISSA

Nilabati Behera v. State of Orissa, AIR 1993 SC 1960
Ans. International Covenant on Civil and Political Rights 1966 provides for various civil
and political rights to every person irrespective of his nationality, caste and creed. It
provides right to life, liberty and security of person. The right to life, liberty and
security of person have acquired very significant place in various international
human rights instruments. In this case one Suman Behera aged about 22 years was
taken in police custody in connection with the investigation of an offence of theft

29
 and detained at police outpost. Next day, his dead body was found on railway track.
There were multiple injuries found on the dead body, leading to the conclusion that
his death was unnatural caused by those injuries which were inflicted to him while
he was in police custody. The Court awarded Rs. 1,50,000/- as compensation to the
mother of Suman Behera. It was observed that an enforceable right to compensation
under Art. 9(5) of the International Covenant on Civil and Political Rights is
consistent with the concept of enforcement of guaranteed right.
According to Verma J. the award of compensation for the infringement of
fundamental right guaranteed by the Constitution is justified;
(1) where the award of monetary compensation is the only practicable mode of redress
available for the infringement made by the State or its servant in the purported
exercise of their powers, and
(2) the enforcement of the fundamental right is claimed by resort to the remedy in
public law under the Constitution by recourse to Art. 32 and 226 of the
Constitution.

ENFORCMENT OF HUMAN RIGHTS

1) What is the international mechanism available for enforcement of human rights?
Explain.
(2) Write short notes on ‘Enforcement of Human Rights’
(3) Discuss the enforcement of Human Rights at the International level. How far it is
effective?

SYNOPSIS
1. Introduction
2. Enforcement of Civil and Political Rights
3. Constitute of the Human Rights Committee
4. Term
5. Functions of the Human rights Committee
6. Enforcement of Economic, Social and Cultural Rights
a) Africa
b) Europe
c) America
d) India

1. INTRODUCTION
For the enforcement of the human rights, number of special bodies have been
established in accordance with international conventions dealing with particular aspects
of human rights. These various bodies pay their full time and attention to regulate the
enforcement of the provisions of all these conventions. It includes Human Rights
Committee, the committee on economic, social and cultural rights, the committee on

30
elimination of racial discrimination, the committee on elimination of discrimination
against women, the committee against torture and committee on the right of the child.
These bodies, in general, supervise the enforcement of the relevant international
human rights conventions. They receive information from all reliable sources including
reports from States, international and non-governmental organizations and
communications made to them by the victim of violations of human rights. These bodies
review the information and take appropriate actions to meet the situation.
The UNESCO and ILO, in addition have developed their own supervisory systems
to consider and deal with reports received from the States, the complaints relating to the
application of human rights convention adopted by these organizations and with question
of interpretation of human rights instruments. It is overall responsibility of Commission
on Human Rights to consider the question of violations of human rights and fundamental
freedoms in all parts of the world. In addition it also considers the question of violation of
human rights, initiates actions on the situation of human rights in different parts of the
world by appointing special working groups.

2. ENFORCEMENT OF CIVIL AND POLITICAL RIGHTS

Art. 28 of the International Covenant on Civil and Political Rights provide for
establishment for Human Rights Committee. In accordance with this provision the
Human Rights Committee has been established in 1977 to monitor the implementation of
the International Covenant on Civil and Political Rights.

3. CONSTITUTION OF THE HUMAN RIGHTS COMMITTEE

The Committee consists of eighteen members who are elected from amongst the
nationals of the State Parties to the present Covenant. High moral character and
competence in the field of human rights are the essential qualifications for the member of
the Committee. They are elected by secret ballots and each State party may nominate two
persons of nominating State party. Two third of the State parties shall constitute a
quorum for such meetings.

4. TERM
The members of the Committee shall be selected for a term of four years. They shall
be eligible for re-election. Each member of the Committee shall make a solemn
declaration in open Committee that he will perform its functions impartially and
consciously.
The Committee shall establish its own rules or procedure. The Committee shall elect its
officer for a term of two years. The Secretary General shall provide the necessary
facilities for the effective performance of functions of the Committee.

5. FUNCTION OF THE HUMAN RIGHTS COMMITTEE

i) To study reports of the State parties on the measures adopted by them to give effect
to the rights recognised in the Covenant and on the progress made in the enjoyment
of those rights.

31
ii) To formulate and transmit to the State parties such general comments as it may
consider appropriate.
iii) To entertain and examine inter-State communication.
iv) To establish ad-hoc conciliation commission under Art. 51 of the Covenant.
v) To consider written communication addressed to it under the optional protocol to
the international covenant on civil and political rights.

6) ENFORCEMENT OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The States Parties to the International Covenant on Economic Social and Cultural
Rights submit reports to the Secretary Generals on the measures taken by them and
progress made in achieving the rights contained in the Covenant. The Secretary General
transmits such report to –
(a) the economic and social council for consideration, and to
(b) specialized agencies.
The reports furnished by the State Parties include particulars of decisions and
recommendation on such implementation adopted by the State Parties. The reports are
also submitted to Commission of Human Rights for study and general recommendations.
The economic and social council is primarily responsible to supervise and regulate
the enforcement of various human rights contained in the International Covenant on
economic, social and cultural rights. The economic and social council in 1978 had
established Working Group in order to facilitate the fulfilment of the responsibility which
is thereafter renamed as Committee on economic, social and cultural rights to share the
responsibility of the Economic and Social Council for regulation and implementation of
these rights. This Committee consists of eight experts who are competent in the field of
human rights. They are elected for the term of four years by the council by secret ballot.
The reports of the State Parties are discussed by the Committee and the Committee
prepares a summary of consideration and submits it to the Economic and Social Council
together with its own suggestions and recommendations of general nature.
Art. 64 of the Charter of the United Nations authorised the Economic and Social
Council to make arrangements to lay down procedures for obtaining reports from the
specialized agencies and Government of the member States regarding the implementation
of resolution of the Council as well as of General Assembly of Human Rights.
Regional systems for the enforcement of Human Rights
The inter-Governmental arrangement for the promotion and protection of human
rights have been established in East European, American, African regions and India.
a) Africa –
Organization of African community formed in 1979 wherein African Charter on
Human and People’s Rights was drafted and the Charter came in force on 21 st October
1986. The Charter contains provisions dealing with rights and duties and the organs for
the protection and promotion of those rights and duties. The State parties of the African
Charter are under the obligation to recognise the rights, duties and freedoms contained in
the Charter and to adopt legislative or other measures to give effect to them. Each State is
required to submit a report on legislative and other measures after every two years on the
32
legislative and other measures taken with a view to giving effect to the rights, duties and
freedoms so recognised. Every member State has a duty to promote and ensure the
respect of rights and freedom through teaching education and publication so that these
rights, duties and freedoms could be understood by the people. There are two bodies
established for the promotion and protection of Human and People’s Rights -
(i) African Commission on Human and People Right and
(ii) The Assembly of Heads of State and Government of OAU.
The main functions of these two bodies is to study and research on African
problems in the field of Human and People’s Rights, to organize seminars and
conferences and to encourage national and local institutions concerned with human and
people right and to co-operate with other African and International Institution concerned
with promotion and protection of Human and People’s Right.
b) Europe –
The Council of Europe was formed by West European Nations in 1949. They have
concluded two treaties for the protection and promotion of human rights and fundamental
freedoms – European Convention on Human Rights and The European Social Charter.
The Council of Europe established following two institutions for the enforcement of
human rights and fundamental freedoms -
(i) The European Commission of Human Rights, and
(ii) European Courts of Human Rights
In addition to these two bodies the Committee of Ministers, a governing body of
Council of Europe is also empowered to enforce the decisions of European Courts of
Human Rights. The European Commission of Human Rights is empowered to decide
whether there is violation of human rights and submit its report to the Council of
Ministers which decides the measures to be taken for the enforcement of the human
rights.
The European Commission of Human Rights performs two main functions–
(i) to consider any allegations of breach of Convention by a party to the Convention
referred to the Commission by any other Party,
(ii) to consider petitions on any person, non-Governmental organization or group of
individuals claiming to be the victim of violation by one of the contracting parties to
the convention.
The European Courts of Human Rights has jurisdiction in respect of only those
States which have expressly accepted its jurisdiction by making a declaration to this
effect. It has optional and advisory jurisdiction. The Court may hear the victim, witness
or expert to carry out justice. The decision of the Court is final and binding on the parties.
The Committee of Ministers of the Council of Europe are empowered to supervise the
carrying out the decision of the Court.
c) America -
The American Convention on Human Rights was adopted by organisation of
American States and it came in force in July 1978. The American Convention has
adopted following two institutions for the promotion and enforcement of human rights
and fundamental freedoms -

33
(i) The Inter-America Commission on Human Rights, and
(ii) The Inter-America Courts of Human Rights.
In addition to the American Convention on Human Rights, there are a number of
other Human Rights instruments adopted by Organisation of American States (OAS). The
Inter-American Commission on Human Rights carry a function and power to develop an
awareness of Human Rights among the peoples of America and to make recommendation
to the Governments to take progressive measures in favour of Human Rights. It prepares
reports as it consider advisable in the performance of its duties. It has also a power to take
action on petition and other communications and submit its annual report to the General
Assembly of the Organisation of American States.
The Inter-American Court of Human Rights has jurisdiction in respect of all cases
concerning the interpretation and application of the provisions of Inter American
Convention on Human Rights, that are submitted to it. It has optional jurisdiction only
State Parties and Inter-American Commission have a right to submit a case to the Court.
The Court submits a report on the work during the previous year to General-Assembly for
its consideration.
d) India –
The Indian Parliament has enacted the Protection of Human Rights Act, 1993 for
the constitution of National Human Rights Commission, State Human Rights
Commissions in States and Human Rights Courts for greater protection of Human Rights
and for matters connected therewith or incidental thereto.
(Please see the answer of Human Rights Commission in India.)

HUMAN RIGHTS COMMISSION IN INDIA

1) Write short note on Powers and Functions on National Human Rights
Commission?
(2) Write short note on National Human Rights Commission?
(3) Discuss in detail the composition, powers and functions of National Human
Rights Commission.

SYNOPSIS
1. Introduction
2. Protection of Human Rights Act
3. National Human Rights Commission
4. Powers and Function
5. Functioning of the Commission
6. Recommendation of the Commission
7. State Human Rights Commissions
8. Human Rights Courts in Districts

1. INTRODUCTION

34
 India has shown keen interest in the past in establishing or strengthening a national
institution for the promotion and protection of Human Rights before the Third Committee
of the General Assembly .It introduced a draft resolution wherein it emphasized the
importance of the integrity and independence of such national institutions. In the draft
resolution it also requested the Secretary/General of the United Nations to submit a report
to the General assembly in two years regarding the functioning of the various kinds of
national institutions and their contribution towards implementing human rights
instruments. The interest shown by India in the establishment of a national institution for
the protection and promotion of human rights was laudable. The interest shown in the
international forum implied that it was in favour of establishing such an institution.
However, at that time no such institution was established.

2. PROTECTION OF HUMAN RIGHTS ACT

National Commission on Human Rights (NCHR) was set up in India on September
27,1993 when the President of India promulgated an Ordinance. Provisions for the setting
up of similar Commissions at State level were also made in the Ordinance. Later, the
Lock Sabha passed the Protection of Human Rights Bill on December 18,1993 to replace
the Presidential Ordinance. The Bill became an Act after it received the assent of the
President on January 8, 1994 which is known as the Protection of Human ‘Rights Act.
The purpose of the Act was to provide for the constitution of a National Human Rights
Commission, State Human Rights Commissions in State and Human Rights Courts for
better protection of human Rights and for matters connected therewith or incidental
thereto.
Section 2 (d) of the Act defined the expression human rights by stating that human
rights means the right relating to life, liberty, equality and dignity of the individuals
guaranteed by the Constitution or embodied in the International Covenants and
enforceable by courts in India. The Act set up a national Human Rights Commission and
the state Human Rights Commission in the States and the Human Rights Courts in the
District.
3. NATIONAL HUMAN RIGHTS COMMISSION (NHRC)
Chapter II to IV of the Act deals with the National Human Rights Commission.
Main provisions relating to it are as follows: -
Constitution: Chapter II of the Act deals with the Constitution of the National
Human Rights Commission. Section 3 of the Act lays down that the Central Government
shall constitute a body to be known as the National Human Rights Commission which
shall have eight members and will be headed by the former Chief Justice of the Supreme
Court. The other members of the Commission shall be a sitting or retired Judge of the
Supreme Court, a serving or a retired Chief Justice of the High Court, two prominent
persons having knowledge or practical experience in the sphere of human rights and the
Chairpersons of the National Commission for Minorities, the Scheduled Castes and
scheduled Tribes and Women. The Chairperson and the members of the Commission
shall be appointed by the President on the recommendation of a six-members shall hold
office for a period of five years, from the date on which they enter upon their office. They

35
shall be eligible for reappointment for another term. A person can serve at the
Commission until the age of 70 years.
The Commission shall have a secretary-general who will discharge his functions
keeping with the powers delegated to him.
The Chairperson or any other member of the Commission shall be removed from
his office by order of the President on the ground of proved misbehaviour or incapacity
after the Supreme Court, on inquiry, reported that the Chairperson or such other member
ought on any such ground to be removed. The President may remove from office the
Chairperson or any other Members if
(a) he is adjudged an insolvent; or
(b) he is engaged during his term of office in any paid employment outside the duties of
his office;or
(c) he has become unfit to continue his office by reason of infirmity of mind or body; or
(d) he has been declared by a competent court a person of unsound mind;
(e) he has been convicted and sentenced to imprisonment for an offence which in the
opinion of the President involves moral turpitude.
In addition to the above, the Central Government shall make available to the
Commission an officer of the rank of the Secretary to the Government of India who shall
be the secretary-general of the Commission, and such police and investigative staff as
may be necessary for the efficient performance of the functions of the Commission.
The Commission shall have its headquarters in New Delhi and with the permission
of the Central Government may establish offices in other places in India.

4. POWERS AND FUNCTIONS

The functions of the Commission are laid down under Section 12 of the Act which
are as follows:-
a The Commission shall inquire suo-motu or on a petition presented to it by a victim
or any person on his behalf, into complaint of
i) violation of human rights or abatement thereof; or
ii) negligence in the prevention of such violation by a public servant.
b) The Commission may intervene in any proceeding involving any allegation of
violation of human rights pending before a Court with the approval of such Court.
c) The Commission shall visit, under intimation to the State Government, where
persons are detained or lodged for purposes of treatment, reformation or 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.
d) The Commission shall review the safeguards provided by our under the Constitution
or any law for the time being in force for the protection of human Constitution or
any law for the time being in force for the protection of Human Rights and will
recommend measures for their effective implementation.
e) The Commission shall review the factors, including acts of terrorism, that inhibit
exercise of one’s Human Rights as well as the safeguards currently in force and
make appropriate recommendations.

36
f) The Commission shall study the treaties and other international instruments on
human rights and make recommendations for their effective implementation.
g) The Commission will undertake and promote research in the field of human rights.
h) The Commission shall spread human rights literacy among various sections of
society and promote awareness of the safeguards available for the protection of
those rights through publications, the media, seminars and other available means.
i) The Commission shall encourage the efforts of non-governmental organisations and
institutions working in the field of human rights.
j) The Commission of may perform any other function, as it may consider necessary
for the promotion of human rights.
k) The Commission shall submit an annual report to the Central Government and to
the State Government concerned and may at any time submit special reports on any
matter which, in its opinion, is of such urgency or importance that it shall not be
deferred till submission of the annual report. The Central Government and the state
Government shall cause the annual and special reports of the Commission to be laid
before each House of Parliament or the State Legislature respectively along with a
memorandum of action taken or proposed to be taken on the recommendations of
the Commission and the reasons for non-acceptance of the recommendations, if any.
The Commission while inquiring into complaints shall have all the powers of a
Civil Court trying a suit under the Code of Civil Procedure of 1908, and in particular in
respect of the following matters:
(a) Summoning and enforcing the attendance of witnesses and examining them on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits
(d) requisitioning any public record or copy thereof from any Court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed.
The Commission shall have power to require any person to furnish information on
such points or matters as in the opinion of the Commission may be useful for or relevant
to the subject matter of the inquiry and any person so required shall be deemed to be
legally bound to furnish such information within the meaning of Section 176 and Section
177 of the Indian Penal Code. The Commission or any other officer, not below the rank
of Gazetted Officer, specially authorised in this behalf by the Commission, may enter any
building or place where the Commission has reason to believe that any document relating
to the subject-matter of the inquiry may be found, and may seize any such document or
take extracts or copies therefrom.
The Commission may after completing the inquiry recommend to the appropriate
Government or authority to take action against the person concerned where the inquiry
discloses the violation of human rights. It may also recommend the appropriate
Government or authority for grant of necessary interim relief to the victim or his family
members. The Commission may approach the Supreme Court or the concerned High
Court to pass such directions, orders or writs as that Court may deem necessary. The
Commission provides a copy of the inquiry report to the petitioner or his representative.

37
It shall also send a copy of its inquiry report together with its recommendations to the
concerned Government or authority shall within a month forward to the Commission its
comments on the report including the action taken proposed to be taken. 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 appropriate
authority on the recommendations of the Commission.

5. FUNCTIONING OF THE COMMISSION

In accordance with Section 4 of the Act, the Chairperson and the members of the
Commission were appointed by the President on the recommendations of the Committee
comprising the Prime Minister as the Chairperson and the Speaker of the Lok Sabha the
Home Minister the Leader of the opposition in the Lok Sabha and Rajya Sabha and the
Deputy Chairman of the Rajya Sabha as Members. Justice Ranganath Mishra the
former Chief Justice of India was appointed the Chairperson who assumed office in the
Commission on October 12,1993. Other members were Miss Justice M. Fatima Beevi,
Justice Sukhdev Singh Karg and Shri Virendra Dayal. Dr. Justice T.K. Thommen who
was appointed as a member of the /Commission could not assume charge on account of
illness. In accordance with section 3 (4) of the Act R.V Pillai joined the Commission as
its secretary-general and the Chief Executive Officer.
Inquiry and Investigation by the Commission
The most important function of the Commission is to inquire /investigate the
complaints of the human rights violations. In the first meeting of the Commission held on
November 1, 1993 it took suo-motu notice of a firing incident by the BSF on a gathering
of people at Bijbehana and issued notice to the Government of India seeking a report on
the incident. The Commission since then has received a number of complaints. The
following figures suggest that there has been a rapid rise in the number of complaints
received by the Commission:
1993-94 496
1994-95 6,987
1995-96 10,195
1995-97 20,514
The above figures of complaints include the reports sent by State agencies on
custodial deaths and rapes. Complaints made to the Commission related to the custodial
death, custodial rape disappearance illegal detention/arrest, false implications, police
excesses, failure in taking action, indignity to women, terrorists and Naxalites violations
an jail conditions etc. Largest complaints were received from Uttar Pradesh followed by
Bihar. The two States together accounted for 54 per cent of the fresh cases received
during 1996-97.
The Commission does not consider all the complaints received by it. The
complaints, which fall under the categories listed in regulation No. 8 of the Commission,
are not entertained by the Commission. Under the above Regulation the Commission
decided not to entertain cases relating to- (a) events which happened more than one year
before making of the complaints;

38
(b) matters which are subjudice;
(c) those which are vague anonymous or pseudonymous;
(d) those that are frivolous in nature;
(e) matters which are outside the purview of the Commission.
Out of 20833 complaints which required consideration during 1996-97, 16823 cases
were taken up for consideration and 4010 complaints were processed but were pending
consideration at the end of the year.
Out of 16823 cases, 8048 cases were disposed of in limini and 2272 cases were
disposed of with directions to the appropriate authorities. In respect of 6503 complaints,
directions were issued calling for reports 582 cases were concluded after considering the
reports received from the concerned authorities or the reports submitted after inquiry by
the Investigation Division of the Commission. Thus total of 10848 cases were disposed
by during the current year as against 7618 cases disposed of during the current year as
against 7618 cases disposed of during the year 1995-96.
The number of complaints received by the Commission suggests that a large-scale
violation of Human Rights do take place in country. The number also suggests that the
people have reposed their trust in the Commission. However, the functioning of the
Commission is subject to glaring criticisms. In the past it has not been able to consider all
the complaints in hand in the same year. It is desirable that there should not be any delay
in the consideration of the complaints. The prompt and active consideration of the
complaints would increase the faith in the minds of the people towards the effective
working of the Commission. The Commission is aware of this deficiency and therefore
with a view to expedite the disposal of the complaints, the ‘Regulations were amended
empowering a single member to deal with the complaints instead of a bench of two
members. Seeing the number of complaints it is desirable to increase the members of the
Commission. The Commission itself is considering the evolution of new procedures to
enable it to process the increasing number of complaints. Further tendency of delaying
responses by the State authorities also hampers the proper functioning of the
Commission. The State authorities should co-operate to the Commission by giving
prompt responses to the Commission’s notice so that the disposal of the case may be
better.
The NHRC investigates the complaints on reports of serious violations by the
Commission. Investigation division consists of the sanction strength of 81 persons. The
Commission has been careful to select only those persons who have unblemished records
in regard to human rights and a true commitment to their protection, particularly in
respect of the rights of the most vulnerable and under-privileged. The Commission during
the year 1996-97 investigated or monitored 10047 cases (as against 876 cases in 1995-
96). Out of these 296 were investigated by the Commission’s own wing and the
remaining 751 were sent to other agencies such as the State police. It is to be noted that
the investigation done by the outside agency is not desirable as it is expected that the
investigation done by them shall not be impartial especially in those cases were the
matter is related to the excesses of the police. The outside agency such as State police is
not expected to investigate impartially the human rights violations committed by their

39
fellow policemen and superiors. It is therefore absolutely necessary that the
Commission’s own investigating wing is strengthened.

6. RECOMMENDATIONS OF THE COMMISSION

By the end of March 1997, the Commission has submitted four reports to the
Government and a number of recommendations were made therein for making the
functioning of the Commission more effective and for the promotion and protection of
human rights Some of the recommendations are as follows:
a) The Commission. Recommended for the amendments to the Protection of Human
Rights Act 1993 to ensure more autonomy to the Commission by being empowered
to grant relief to the victim or to his family members.
b) The Commission recommended for the accession to the convention Against Torture
and other Forms of Cruel Inhuman and Degrading Treatment or Punishment
adopted by the United Nations in December 1984 which came into force in June
1987.
c) The Commission recommended for making reforms and to educate the police. It
recommended that serious action be taken on the Second Report of the Police
Reforms Commission, 1979 including those suggesting the insulation of the
investigative function of the police from political pressure.
d) Custodial crimes are particularly heinous and revolting as they reflect betrayal of
trust by a public servant against a defenseless person. The Commission.
Recommended that the Indian Prison Act of 1894 should be revised. The
Commission. Has been preparing a new all India Jail Manual for making reforms in
the prison system.
e) The Commission. Recommended that in order to make people aware of their human
rights there is a need for the movement, which unfortunately is not there in spite of
the existence of a large number of NGOs.
f) The Commission. Stated that one of its priorities related to human rights is to
improve the status of the Scheduled Caste and Scheduled Tribes and of the
minorities. The Commission recommended that the nation required vast programme
of social regeneration to deal with ancient social wrongs.
g) That the dialogue between policy makers the security forces and human rights
proponents be sustained for it can contribute greatly to clarity of thought and action
in dealing with insurgency and terrorism.
h) That the Para-military forces and the Army make it a point to report directly to the
Commission. Any instance of death or rape occurring while a person is in their
custody.
i) That the right to education be enforced if the nation is to prove its seriousness in the
efforts to end the child labour.
j) That both Doordarshan and AIR should increase their involvement in enhancing
human rights awareness.

7) STATE HUMAN RIGHTS COMMISSIONS

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 The Act also provided under Chapter V for the setting up of the State Human Rights
Commission in States which shall consist of a Chairperson who has been a Chief Justice
of a High Court; one member who is or has been a judge of a High Court; one member
who is or has been a District Judge in that State and two members to be appointed from
amongst persons having knowledge of or practical experience in matters relating to
human rights. The Chairperson and other members of the Commissions shall be
appointed by the Governor on the recommendation of a Committee consisting of the
Chief Minister (the Chairperson) and the three members i.e.
1. Speaker of the Legislative Assembly,
2. Minister-in-charge of the Department of Home in that State and
3. the Leader of the opposition in the Legislative Assembly.
All the members of the Commission shall hold office for a period of five years and
will be eligible for the re-appointment for another term. There shall be a Secretary who
shall be the Chief Executive officer of the State Commission and shall exercise such
powers and discharge such functions of the State Commission as it may delegate to him.
The Headquarter of the State Commission shall be at such place as the State Government
may by notification, specify.
The State Commission is empowered to perform all those functions, which have
been entrusted to the National Human Rights Commission. The State Commission. May
inquire into violation of human rights only in respect of matters related to any of the
entries enumerated in List II and III in the Seventh Schedule to the Constitution. The
Commission is required to submit its annual reports to the State Government and it may
submit at any time special reports on any matter, which in its opinion is of such urgency
or importance that it should not be deferred till submission of the annual report. The State
Government shall submit these reports before each House of State Legislature with a
memorandum of action taken or /and the reasons for non-acceptance of the
recommendations, if any.
The State Human Rights Commissions have been established in West Bengal,
Himachal Pradesh, Madhya Pradesh, Assam and Tamil Nadu in that order by March
1997. Later such a Commission has been established in Punjab. Uttar Pradesh has
notified the constitution of a Commission. But appointments to the post of Chairperson
and Members have not been made. The Government of Jammu and Kashmir has passed
legislation to establish a State Human Rights Commission and this has received the
assent of the Governor. It is to be noted that certain State Governments have informed the
NHRC of their difficulty in establishing the commissions because of financial constraints
or because of the non-availability of retired Chief Justice or Justices of the High Court
whose presence in essential to the proper composition of the five member Commissions
envisaged under the provisions of the Section 21 (2) of the Protection of Human Rights
Act of 1993. An amendment therefore is required to be made in the Act to remove the
difficulty.
The NHRC in its 1996 report has recommended that the State level Commissions be
established rapidly. It is desirable and important that if the State Human Rights

41
Commissions are established in different States their work is coordinated with that of the
NHRC so that confusion and duplication does not occur.

8) HUMAN RIGHTS COURTS IN DISTRICTS

Chapter VI of the Act comprising of Sections 30 & 31 makes the provisions
relating to the creation of Human Rights Courts in each district.
The setting up of Human Rights Courts in every district of the country or the speedy trial
of offences arising out of violation of human rights is a novel provision of the Act. These
Courts may be set up by the State Government, with the concurrence of the Chief Justice
of the High Court by notification specifying for each district a Court of Session to be a
Human Rights Court. For every Human Rights Court, the State Government shall appoint
a Public Prosecutor or an advocate who has been in practice as an advocate for not less
than seven years for the purpose of conducting cases in the human Rights Courts. Such a
person shall be called a Special Public Prosecutor.
Such Courts, have been notified in the State of Andhra Pradesh, Assam, Sikkim,
Tamil Nadu & Uttar Pradesh, and have been constituted in Madras and Guwahati.
A question arises as to what cases shall be decided by such Courts. The ambiguity
remained as to the precise nature of the offences that should be tried in such Courts and
other details regarding the conduct of their business in view of the fact that Section 30 of
the Protection of Human Rights Act of 1993 does not lay down the jurisdiction and
procedures to be followed by such Courts.
In India, like many other developing countries much has to be done for the better
protection of human rights. Although other social and economic problems like poverty,
illiteracy, unemployment, population growth, and law & order have surpassed the
importance due to human rights, all efforts are required to be made to make the people
aware of their rights. The strong will and determination for the promotion of human
dignity and worth will certainly make the human rights movement a great success.

PROTECTION OF HUMAN RIGHTS

The establishment of an independent and impartial institution for protection of human
rights in the States was initiated by the UNESCO in the beginning of year 1946. The
Secretariat in its memorandum called “Supervision and Enforcement of Human Rights,
1947” had recommended for the establishment of such an institution in every State.
Although, in 1966 the General Assembly by Resolution [2200 (C) XXI] dated 16
December, 1966 adopted the proposal for establishing National Commission for
protection of human rights which should perform certain functions related to the human
rights.
In 1993 the World Conference realized the importance of an institution of human
rights and appealed to every government to promote and protect the human rights. The
Conference also promised to provide all assistance by the United Nations activities to the
State who wants to establish one National Commission on human rights aimed at
protecting and promoting these rights. Specially, after adoption of the Vienna Declaration

42
and Programme of Actions many countries have established such institutions for
protection of human rights.

Human Rights Commissions In India

India is one of the States which has shown keen interest in establishing a National
Commission for the promotion and protection of human rights. India in its draft
resolution has requested the Secretary General Assembly in two years’ time with a view
to implement protection of human rights programmes. On 27 th September 1993 the
National Commission on Human Rights was established in India. Subsequently, A Bill on
Protection of Human Rights was introduced in the Lok Sabha which was passed and it
became an Act after it received the assent of the President on 8th January, 1994 which is
called the Protection of Human Rights Act. The object of this Act was to establish a
National Human Rights Commissions at national level and the States Commissions in
States and also Human Rights Courts for effective protection of human rights. The
National Commission for Protection of Human Rights has been provided with powers
and certain functions to deal with the human rights. Though the National Human Rights
has been provided with powers and certain functions to deal with the human rights.
Though the National Human Rights Commission has its headquarters in New Delhi, but
with the permission of the Central Government it may establish in other places in India.
As laid down in Chapter III of the Protection of Human Rights Act, 1993, the
Commission has been vested with power to conduct investigation pertaining to human
rights. Inquiry and investigation are the most important functions of the NHRC.
Since 1993, after the enforcement of Protection of Human Rights Act and creation
of the NHRC, the Commission has received a bulk of complaints of the human rights
violations. These complaints include custodial rape, custodial death, illegal detention,
disappearance, police excesses, false implication, indignity to women, Naxalites and
terrorists etc.It is awful to mention that largest complaints were received from Uttar
Pradesh followed by Bihar. However on 1st November 1993 the Commission took suo
motu notice of a firing incident by the Border Security Force on a gathering of people at
Bijbehana and issued notice to the Central Government seeking a report on the incident.
The NHRC is empowered to entertain all complaints listed in Regulation 8 of the
Commission. The number of complaints received by the Commission indicates that a
large scale violation of human rights occur in India. The members also indicated that the
people of India have developed awareness in respect of the human rights. The
performance of the NHRC has invited criticism, because in the past, it has not been able
to consider all the complaints received by it in the same year. “Delay defeats justice” the
prompt effective consideration is required for better functioning of the NHRC is aware of
this problem and therefore with a view to speed-up early disposal of the complaints of the
human rights violations, can be disposed off at the earliest.
The National Human Rights Commission during the year 1996-97 has investigated
1047 cases, whereas 296 were investigated by the NHRC’s own wing the rest of 751
cases were investigated by other agencies such as the State Police. Since most of the
complaint/cases are filed against the State police action there is every probability that the

43
investigation done by the State police shall not be fair or impartial. The outside agency
such as State police is not expected to investigate the matters pertaining to the human
rights violations committed by their fellow police men and superiors. It is therefore
suggested that it is necessary that the National Human Rights Commission should have
its own investigating wing to make investigation impartial.
The National Human Rights Commission has submitted its reports to the Central
Government. The NHRC in its report has recommended many measures for promotion
and protection of human rights. The Commission expressed its concern on improper
functioning of non-governmental organizations and also emphasized that the right to
education be enforced if the nation has to prove its seriousness in the efforts to end the
child labour and to promote human right. The Commission should have complete
autonomy against interference.
To provide clarity of thought in respect of the protection of human rights the
dialogue between policy makers, the security forces and the human rights proponents
should be established. The para-military forces and Army should be directed to report
directly to the NHRC in case of any custodial death and also in case of custodial rape.
All India Radio and Doordarshan should increase their participation in bringing
required awareness among people pertaining to the protection of human rights.

PROTECTION OF HUMAN RIGHTS AND POLICE

Where there is a right there is a corresponding duty, and in the context of human
rights the duty falls upon the States. According to IMMANUEL KANT “The function of
the true State is to impose minimum restriction and safeguard the maximum liberties of
the people.” The recognition by the United Nations Organisation and by States that all
human beings, regardless of nationality, possess rights deserving International
recognition and protection, marked a revolution in International Law.
The importance of Human rights was realised after the Second World War and
with this view of international recognition of women’s right and protection occurred in
the “minorities treaties” which guaranteed life, liberty and freedom of religion to all
human begins irrespective of their nationality. The first universal and elaborative
recognition of human rights and fundamental freedom was recognised in the Charter of
the United Nations on 26th June 1945 and its preamble expresses an international
commitment of people of the United Nations to reaffirm and confirm faith in human
rights.
The Charter of the United Nations has reaffirmed the dignity of all human begins
and equal rights of men and women. Whereas Member States have pledged themselves to
achieve, in cooperation with United Nations, the promotion of universal respect for an
observance of human rights and fundamental freedom.
A common understanding of human rights and freedom is of the greatest
importance for the full realization of this pledge. The General Assembly proclaims this
Universal Declaration of Human Rights as a common standard of achievement for all
people and all nations, with a view that every individual and every organ of society,

44
keeping this Declaration constantly in mind, shall strive by teaching and educating to
promote respect of human rights and freedom and by progressive measures, National and
International, to secure their universal and effective recognition and observance, both
among the people of Member States themselves and among the people of territories under
their jurisdiction.
The contempt for human rights has resulted in barbarous acts which have outraged
the conscience of mankind, and the advent of world in which human begins shall enjoy
freedom of speech and belief and freedom from fear and want has been proclaimed as the
highest inspiration of the common people.
It is essential, if man is not to be compelled to take recourse as a last resort, to
rebellion against tyranny and oppression; that human rights should be protected by the
rule of law.
However, on 10th December 1948 an attempt was made to describe the individual
rights under the Universal Declaration of Human Rights which was adopted by the
United Nations’ General Assembly through resolution 217 (iii). The Declaration of
Human Rights was accepted as a Common Standard of achievement for all people and all
nations.
This Declaration indicates the first three stages of a programme designed to
achieve an International Bill of Rights, based upon universally binding obligations of
States and reinforced by effective administrative machinery. These three stages are-
1) A declaration defining the various human rights which ought to be respected.
2) A series of binding covenants on the part of the States to respect such rights is
defined.
3) Measures and machinery for implementation.
The future developments at domestic and the international levels have been
influenced. Over the years the human rights have grwon and a plethora or rights has come
within its ambit, however, there are some which remain in news almost all the time.
These are police inhuman acts, brutality and terrorism.

Terrorism- Terrorism can be classified into two categories, i.e. (i) ideological terrorism
and (ii) criminal terrorism. The ideological terrorism can be political or religious or can
be both whereas criminal terrorism can be commercial terrorism, narco-terrorism and
purely criminal terrorism. Thus commercial terrorism intends to take commercial
advantage. Narco-terrorism is the way to sustain and establish narcotic traffic. The mafias
and terrorist organisation run parallel governments to support their terrorist activities.
These groups run extortion rackets. The people indulged in such activities are called
terrorists. They do not have any concern or respect for human rights. In fact, they are just
wild beasts preying upon the civilized society. Though, the reality is known to them,
many human rights groups criticize the police action against the terrorists. Some of them
have taken the human rights to such deplorable state that renowned cartoonist Sudhir
Dhar had drawn a cartoon exhibiting the police man welcoming a terrorist with a garland,
just to keep himself clean of being accused of violating any human rights of the terrorists.

45
Such a ridiculous situation has lowered the morale of the police forces. Even the
paramilitary forces engaged in anti-terrorist acts are disheartened.
It is true that the police force often exceeds its jurisdiction. Thus, the protectors of
human rights sometimes become their major violators. However, violation of human
rights by the police takes place partly because of the duty they have to perform and their
manner of performance. Right to Life and Liberty are the most fundamental human rights
which are widely protected by the Indian Constitution, but these are the main causalities.
No doubt there are numerous cases of death in police custody due to physical torture and
inhuman treatment by police. Now-a-days, falsely organised police encounters have
become the tool to eliminate criminals, especially those whom the police regards as
dangerous and whose prosecution and conviction according to law of the land is very
difficult because of serious handicaps in obtaining evidence against those criminals.
How to rectify such lamenting situation? Firstly, there must be adequate
improvement in the living conditions of the police force which are not at all satisfactory.
They have enormous workload and usually they have to work 16 hours a day and seven
days a week. Therefore, there is hardly any time for recreation. In such a situation, it is
simply impossible for the police to be civil and sensitive enough to respect human rights.
Unilateral condemnation of the police without analyzing their problems is not proper.
The functioning of police for protection of human rights is a complex problem and it has
complex problem and it has complex solution. Narco-terrorism is one such complex
problem. To deal with it, we need practicable strategy. Firstly we have to pin point and
inculcate into every police man a sense of loyalty and sincerity towards protection of
human rights by imparting comprehensive education in human rights at every level of
Police Personnel. Secondly, we have to consider actively the human rights of the police
personnel too. Policemen are expected to perform better in a conducive, flexible system,
which would provide them a positive encouragement and incentive for performing their
duty. If, we apply these remedial measures, the police brutality can be effectively
checked. The laws abiding policemen would develop sensitive conscience for protection
of human rights. Thus, it will assist us in achieving the basic object that is standard
protection of human rights for every individual everywhere without any discrimination.

HUMAN RIGHTS & THE ROLE OF NGO’S

Qtn. Write short note on Role of Non-Governmental Organization in enforcing
Human Rights in India.

SYNOPSIS
1. Introduction
2. NGO’s in Various field
3. Important Functions of NGO’s
a) Collection of information and monitoring the same
b) Legislation

46
 c) Education
d) Solidarity
e) Rendering services in the areas of Social Rights
f) Preventing the abuse and securing redress and humanitarian assistance to
the victim
4. New Challenge
5. Conclusion

1. INTRODUCTION
The humanitarian concept of protection and care of the people and particularly the
under privileged is an important issue of international concern and had been well
established in the thinking of the eminent scholars and jurists. However a difficulty had
been experienced to express this concern in terms of the legal principles and norms. Law
required a certain degree or precision to spell out the Rights and standard of treatment to
be also in conformity with the sovereignty Rights of the States.
In the context of Human Rights it is considered that this is the matter within the
competence of the State. The various international instruments such as the declaration of
Human Rights of 1948, the UN Convention of Refugees of 1951, and the Declaration of
Territorial Asylum of 1967 have tried to spell out some kind of Rights for the persons
who were persecuted. The Convention against torture and other cruel, inhuman or
degrading treatment or punishment was adopted by UN in December, 1984. The same
came into force in June 1987. The convenant, inter alia, makes it obligatory for the
signatory States to take effective legislative, judicial administrative and other measures to
prevent the acts of torture or attempts to commit the torture in its territory and to make all
such acts or attempts offensive under the criminal law.

2. NGO’S IN VARIOUS FIELD

The concept of Human Rights gained importance after the 2 nd World War when
Political and Civil Rights of the people were completely suppressed. At the same time in
Western countries development in material resources gave rise to Economic and Social
Rights. In the developed countries Political and Civil Rights are considered as Human
Rights but in developing countries Cultural, Social and economical Rights are basic
Rights which are considered by them as Human Rights.

The Human Rights, thus, are classified into Political and Civil on one hand and
Social, Cultural and Economic Rights on the other. These Rights under the first group are
more in the nature of injunctions against the authorities of the State from encroaching
upon the freedom of an individual. The Rights under the second group are in the nature of
demands on the State authorities to provide conditions to capacitate the individual to
exercise the Rights under the first group.
The idea of Human Rights in the form of some basic natural Rights is traced in the
natural law theory, which stressed that man is endowed by birth with certain inalienable
47
Rights such as Rights to live, liberty and property. The Universal Declaration of Human
Rights adopted by the General Assembly of UN in 1948 an Art. 21 of these Rights.
In the initial stages, for achieving the goal the International Human Rights
Organisations were founded by League of Nations and United Nations viz. London based
Anti- Slavery Society for Human Rights in 1938, the international Committee for Red
Cross in 1963, the French League for Human Rights in 1898, the larger number of Non-
Government Organisation (NGO) at national, regional and local level emerged after
1970. Some of the significant NGO’s are People’s Union Civil Liberties (PUCL) in 1974,
the People’s Union for Democratic Rights (PUDR) in 1976 and Centre for Democracy
(CFD).
These organisations have functioned as the conscience of the nation in the field of
Human Rights by taking prompt action to investigate the instances of Human Rights by
undertaking on the spot studies and publishing the observations.
While recognising the Social, Cultural and economical Rights as the fundamental
Human Rights, the functions of these development institutions is to be viewed through
their perception and action, as these organisations aim at the protection and
empowerment of Human Rights and Human Dignity. Justice P. N. Bhagwat has Rightly
observed “We can escape from this paradox and break the vicious circle by organising
the poor”.
The Environment in which the NGO’s are functioning at present is radically
different from environment before 1970. For the Human Rights activities the present
environment is more complex and offers greater opportunities, which require a higher
professionalism to face greater challenges.

3. IMPORTANT FUNCTIONS OF NGO’S

These are great variations in respect of the degree of Political independence that
NGO’s exhibit. However all NGO’s believes that a complete independence is a
prerequisite for credible Human Rights. Though the NGO’s have been performing a
variety of functions in promotions of Human Rights the important functions are as under:
a) Collection of information and monitoring the same;
b) Legislation;
c) Education;
d) Solidarity;
e) Rendering services in the areas of Social Rights;
f) Preventing the abuses and securing redress and humanitarian assistance to the
victim.
a) Collection of information and monitoring the same:
This is a very important function as the behaviour of the State and the other powers.
Of exposing and denouncing the Human Rights violations, unless the behaviour is
mentioned by Government authorities, will not be held accountable. The significance of
the information the intergovernmental bodies would be ineffective in regard to protection
of Human Rights.
b) Legislation:

48
 The NGO’s have played a very important role in drafting at the international levels
the standards and interpreting them. NGO’s have also played a vital role in defining the
new issues and areas which required Legislation.
The NGO’s are often engaged at national levels in drafting Legislative proposals
and preparing papers on pending Legislation and testing before Parliamentary committees
which includes lobbying for the repeal of unjust enactment.
c) Education:
This is an important functions of the Human Rights NGO’s. it is at non-formal level
and can involve workshops, seminars, consultations, training the trade unionists, farmers
and even religious institutions. The NGO’s try to raise consciousness of the society at
large by publishing the special bulletins, audio-visuals.
d) Solidarity:
Human Rights struggles are fought and won largely at national levels by organising
and mobilising in slum areas by making by making the people aware of their Rights and
training them how to fight for them. Sometimes these struggles are isolated and
vulnerable for successful movement of this object the support and the solidarity at
regional and international levels are essential.
e) Rendering services in the areas of Social Rights:
This function is somewhat different from the others discussed above as it involves
protection to a lesser degree. It gas been observed that NGO’s are in a better position to
the refugees, reaching the victims in disaster and offering relief to them providing skills
and training to the underprivileged groups. In such situations, the Government authorities
have tried to co-operate with NGO’s for ending the services they should provide but they
are unable to do so.
f) Preventing the abuses & securing redress & humanitarian assistance to the
victims:
This function involves combination of various methods from denunciation, legal
assistance such as writs of Habeas Corpus, attempts to trace missing persons, visits to
detainues and trying to get Human treatment and conditions for the prisoners and moral
assistance to their relatives. For achieving this object lobbying at the natural
governmental level and international levels is also sometimes necessary.

4. NEW CHALLENGES
In India the Human Rights groups have faced vilification, denunciation and even
physical assaults whenever any cause of democratic Rights of the unorganised people
were undertaken. Recently NGO’s have faced the wrath in north and northeast part of the
country and the groups have come under attacks when cases of ordinary citizens were
taken up. NGO’s have taken a consistent approach in condemning the senseless violence
indulged in by both the militants and the State authorities. It is the suppression of the
fundamental Rights of the common people by the Government authorities. It is the
suppression of the fundamental Rights of the common people by the Government
authorities on the pretext of anti-terrorist operations and restoration of law and order
situations, which have evoked protest from Human Rights groups in India and abroad.

49
 The Supreme Court of India has evolved the new techniques for obtaining evidence
of violation. It has called upon many orders against Human Rights violators. The NGO’s
therefore can play a very important role in enforcement of the orders of the Courts.
As discussed above while importing the education the NGO’s can specify and demarcate
the law of legal aid.

5. CONCLUSION:
The Chairman of the National Human Rights Commission (NHRC) Mr. Justice
Rangnath Misra has rightly observed that NHRC would hold talks with State and
sensitize them on the need of Human Rights education. He further observed that a model
is being developed by the national Council for Educational Research and Training
(NCERT) which could serve as a standard and provide a basis for the action by the
States. He remarks that this is not a small job as it involves educating 35 crore people at
the school level and sought the suggestion of participants in this regards.
It been aptly observed by Dr. Paras Diwan that the role played by the Supreme
Court of India is praiseworthy in expanding the ambit or Art. 21 of the Constitution of
India on Human Rights to includes Human dignity, Rights to speedy trail, Rights to free
legal aid, Rights to prisoner to be treated dignity and humanity, Rights to bell, Rights to
compensation for custodial death, Rights to know, Rights to livelihood, Rights to
protection, Rights to protection of health and medical care, Rights of children of equal
pay for equal work, Rights to Social security, Rights of the workers to participate in
management, Rights to shelter, education and healthy environment.
There is no doubt that significant progress has taken place in expanding the corpus
of the international law on Human Rights while developing the new arenas and protection
mechanism and standards of Human Rights. The NGO’s have played a very prominent
and positive role in this development and with the vast proliferation of NGO’s, a pressing
need is felt for a greater co-operation and co-ordination between these organisation as the
same was hitherto largely haphazard and ad hoc.
In the areas of information gathering and dissemination, NGO’s are confronting the
need to take advantage of the new sophisticated techniques such as computer networks,
electronic mail etc. In the areas of management of information there is a related problem
that NGO’s confront an unwillingness to share the information with others for the various
reasons. This aspect is required to be looked into in detail.
Last but not the least is the issue of the sufficient funds being made available for the
functioning of NGO’s have an independent funding source which is generally derived
from membership. The problem of non-availability of sufficient funds is particularly seen
in the NGO’s in the IIIrd World Organisation.

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