Human Rights

Notes by Praveen Kumar

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Contents
UNIT 1 ..................................................................................................................................................... 4
1. Explain the origin and development of Human Rights in the world and in India. .......................... 4
2. Discuss the Theories of Human Rights............................................................................................ 9
3. What are human rights? Explain different kinds of human rights................................................ 12
4. What are the sources of International Human Rights Law? ......................................................... 16
5. Write an essay on universalisation of Human Rights. .................................................................. 18
6. Explain International Bill of Human Rights ................................................................................... 28
7. Short Notes ................................................................................................................................... 36
a) Commission on human rights. .................................................................................................. 36
b) Explain Human Rights Council................................................................................................... 39
c) United Nations High Commissioner for human rights. ............................................................. 42
UNIT 2 ................................................................................................................................................... 44
1. What are the human rights provided under the UN Charter? Explain. ........................................ 44
2. What are the legal effects of the Universal Declaration of Human Rights? Explain..................... 47
3. Bring out the relationship between the international covenant on civil and political rights and
the international covenant on economic, social and cultural rights? .................................................. 50
4. Short Notes ................................................................................................................................... 51
a) Commission on the status of women under economic and social council............................... 51
b) Human Rights and Art 2(7) of U.N. Charter .............................................................................. 53
c) Promotion and Protection of Human Rights by the United Nations ........................................ 54
d) Amnesty International .............................................................................................................. 56
UNIT 3 ................................................................................................................................................... 61
1. Describe the Rights enshrined in the American Convention on Human Rights ........................... 61
2. State the functions of American Commission and American Court of Human Rights. ................ 65
3. Describe the Rights enshrined in the European Convention on Human Rights ........................... 71
4. State the functions of European Commission and European Court of Human Rights. ................ 75
5. Comparison Between European Convention and American Convention on Human Rights.- ...... 88
6. Discuss the human and people’s rights enshrined by the African Charter................................... 91
7. Explain the three main procedures for implementation of the African Charter on Human and
Peoples’ rights....................................................................................................................................... 93
8. “A special feature of the African charter which distinguishes this regional convention from other
regional conventions is the enumeration of duties in detail”. Analyse this statement along with
defects in the African charter on Human Rights and peoples rights. ................................................... 95
9. Short Notes ................................................................................................................................... 97
a) African commission on Human Rights ...................................................................................... 97
UNIT 4 ................................................................................................................................................... 98

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1. Indian Constitution bears the impact of the Universal declaration of Human rights. Elucidate.. 98
2. What are the Human Rights guaranteed and protected under the Constitution of India? Discuss.
104
3. Explain the writs available under the Constitution of India for the protection of Human Rights.
114
4. Explain the powers relating to inquiries into complaints and procedure for dealing with
complaints of National Human Rights commission ............................................................................ 119
5. Explain the important provisions of protection of human rights act of 1993. ........................... 126
6. Discuss the constitution, powers and functions of State Human Rights Commission. .............. 134
7. Short Notes ................................................................................................................................. 139
a) Appointment of Chairperson and other members of National Human Rights Commission .. 139
b) Removal of Chairperson and other members of National Human Rights Commission.......... 140
c) What are the functions of National Human Rights Commission. ........................................... 141
8. Problems ..................................................................................................................................... 144
Problem 1: ....................................................................................................................................... 144
Problem 2: ....................................................................................................................................... 144
Problem 3: ....................................................................................................................................... 144
UNIT 5 ................................................................................................................................................. 145
1. Explain the rights of the women guaranteed under the convention on the rights of the women.
145
2. Explain the Rights, liabilities of disabled person......................................................................... 151
3. What is the role of united nations children fund (UNICEF) in protecting the rights of children?
153
4. Explain the purpose for the establishment of United Nations High commissioner for Refugees.
156
5. Short Notes ................................................................................................................................. 158
a) Rights of child.......................................................................................................................... 158
b) Rights of Minorities................................................................................................................. 160
c) Rights Of Aged Persons ........................................................................................................... 162
d) Convention relating to statelessness ...................................................................................... 164
e) Media and the protections of human rights. .......................................................................... 166

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 UNIT 1

1. Explain the origin and development of Human Rights in the

world and in India.

Introduction
It may be noted at the outset that human rights are a matter and part and parcel of international
law because human rights do not depend on an individual's nationality and therefore the protection
of these rights cannot be limited to the jurisdiction of any State. In other words, human rights
cannot be said to be a matter within the domestic jurisdiction of any State. After the adoption of the
Universal Declaration of Human Rights in 1948, it was generally recognised that human rights have
ceased to be a matter of domestic jurisdiction and have b come a matter of international concern
even though at that time it was agreed by all that the Universal Declaration had only moral and
political significance having no legal value. It has been rightly pointed out that the competence of
the United Nations on the subject of human rights is "an established fact and the provisions of
Article 2 (7) of the Charter could not be invoked against such competence when by the adoption of
the Declaration the question of human rights was a matter no longer of domestic jurisdiction but
international concern.'? "Human Rights" is thus a subject of modern international law. The efforts to
regulate human rights at an international level gained momentum after the establishment of the
United Nations.

What are Human Rights?

Broadly speaking human rights may be regarded as those fundamental and inalienable rights which
are essential for life as human being. Human Rights are the rights which are possessed by every
human being, irrespective of his or her nationality, race, religion, sex, etc. simply because he or she
is a human being. Human rights are thus those rights which are inherent in our nature and without
which we cannot live as human beings. Human rights and fundamental freedoms allow us to fully
develop and use our human qualities, our intelligence, our talents, and our conscience and to satisfy
our physical, spiritual and other needs. They are based on mankind's increasing demand for a life in
which the inherent dignity and worth of each human being will receive respect and protection.
"Human rights are sometimes called fundamental rights or basic rights or natural rights. As
fundamental or basic rights they are the rights which cannot, rather must not, be taken away by any
legislature or any act of the government and which are often set out in a Constitution. As natural
rights they are seen as belonging to men and women by their very nature. They may also be
described as "common rights" for they are rights which all men and women in the world would
share, just as the common law in England, for example, was the body of rules and customs which,
unlike local customs, governed the whole country.

Since human rights are not created by any legislation, they resemble very much the natural rights.
Any civilized country or body like the United Nations must recognise them. They cannot be subjected
to the process of amendment even. The legal duty to protect human rights includes the legal duty to
respect them. Members of the U.N. have committed themselves to promote respect for and
observance of human rights and fundamental freedoms.4 International concern with human rights
as enshrined in the United Nations charter is not a modern innovation. It is, in fact, "heir to all the
great historic movements for man's freedom to the enduring elements in the tradition of natural law
and natural rights and in the most of the world's great religions and philosophies, and the findings of

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contemporary science about inter-relations of simple respect for human dignity and other individual
and community values.

" Human Rights Before the United Nations.

The term "Human Rights" was . mentioned in the United States Declaration of Independence in
1776. A bill of rights was embodied in the Constitution of the United States of America. Later a
Declaration of Human Rights and Duties was prepared by the institute of International Law, New
York (USA) in 1929. In the Inter American Conference a resolution was passed seeking establishment
of International Forum for the furtherance of Human Rights of mankind. As pointed out by Brierly,
"Under customary law no rule was clearer than a State's treatment of its own nationals is a matter
exclusively within the domestic jurisdiction of that State, i.e. it is not controlled or regulated by
international law. It is true that on a number of occasions the great powers intervened in the Turkish
Empire to prevent large scale atrocities, and that there was some support among writers for a right
of collective humanitarian intervention, but that was all so far as customary law was concerned.
Before the adoption of the Charter of the United Nations, the international community could not
determine the extent to which the citizens of an individual State were to enjoy, the civil rights
According to its own constitutional precepts. Indeed under the traditional international law States
were absolutely free to do what they liked with their nationals. International Law as such had
nothing to do in the matter because the concept of sovereignty was such that an individual could not
be the subject of international law."

Even before the First World War, some writers expressed the view that there were certain
fundamental rights known as rights of mankind which international law guaranteed to individuals,
both at home and abroad and whether nationals of a State or Stateless. It was pointed out that such
rights comprised of the right of life, liberty, freedom of religion and conscience, and the like. It was,
however, doubted that the said view did accurately express the actual practice of the States. Besides
this, it was formally recognised that a State was entitled to treat both its nationals and stateless
persons at its discretion and the way treated them was not a matter with which international law
concerned itself. This was, however, subject to any obligations undertaken by a treaty.? Certain
rights such as equality of treatment w re guaranteed to minority groups, i.e. people of different race,
religion or language from the majority groups within a State by Minority treaties entered into in
Albania, Finland and Poland. But these Minority treaties were not renewed after World War II. Yet
another example of rights of a mankind or right of individuals is freedom from slavery. This right has
been recognized under customary international law since 1815. Subsequently this right was" re-
affirmed by international conventions such as 1926 Slavery Convention, and the 1956
supplementary convention on the Abolition of slavery, the Slave Trade and Institution and Practices
similar to slavery. A similar example is that of the International Convention for the Suppression of
traffic in Women and Children which prohibited trafficking in women and children. But with the
exception of such isolated cases or examples, there was no attempt to regulate human rights at an
international level until the establishment of the United Nations. Thus generally speaking,
international law did not concern itself with human rights, up to the World War II as such nor was
any attempt made to regulate them.

Definition of "Human Rights".

Broadly speaking, " Human Rights" are the rights possessed by all human being simply because they
are human beings. But a narrow definition of "human rights" has been given under Protection of
Human Rights Act, 1993. Section 2 (d) of the Act defines "Human Rights" as the rights relating to life,
liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the
International Covenants and enforceable by Courts in India. Thus the Act gives a very narrow

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definition of "human rights" and does not include all the fundamental rights guaranteed by the
Constitution or embodied in International Covenants on human rights. For example, it does not
include expressly fundamental rights of prohibition of employment of children in factories (Article
25), Protection of Minorities (Article 29), right of minorities to establish and administer educational
institutions. But several fundamental rights not expressly mentioned in Section 2 (d) of the Act other
than the rights relating to life, liberty, equality and dignity have come within the scope of "human
rights" by Judicial implication and interpretation.
These rights though unenumerated in Part III of the Constitution and enumerated in the
International Covenant on Civil and Political Rights are rights recognized by Court as distinct
fundamental rights. These rights include right to travel abroad, right to privacy, right to speedy trials,
right to provide legal assistance, right not to be subjected to torture or to cruel, inhuman or
degrading treatment or punishment, right against bar fetters, right against handcuffing, right against
delayed execution, right against custodial violence, right against public hanging, right not to be
imprisoned for inability to fulfil a contractual obligation, right to compensation for unlawful arrest
and detention, right to live with human dignity.

Reference may be made to the case, namely, P. T. Munichikkanna Reddy v. Revamma (2007)wherein
it has been held that the right of property, is now considered to be not only a constitutional right but
also a human right. Further, human rights have been historically considered in the realm of
individual rights, such as, right to health, right to livelihood, right to shelter and employment, etc.,
but now human rights are gaining a multifaced dimension. Right of property is also considered very
much a part of the new dimension. Even claim of adverse possession has to be read in that context.
lf However, with the expanded jurisprudence of the European Court of Human Rights, the Court has
taken an unkind 'view to the concept of adverse possession. In the judgment of J.A. Pye (Oxford) Ltd.
v. The United Kingdom(2005) which concerned the loss of ownership of land by virtue of adverse
possession. In this case, though the judgment was pronounced in favour of Graham (claimant) yet
the Court went on to observe the irony in the law of adverse possession. According to the Court, the
law which provides to oust an owner on the basis of inaction of 12 years is "illegal and
disproportionate." The effect of which law would "seem draconian to the owner and a "windfall for
the squatter." The fact that just because the owner had taken no step to evict a squatter for 12
years, the owner should lose 25 hectares of land to the squatter with no compensation whatsoever
would be disproportionate.

As regards the instant case, the Supreme Court observed that adverse possession is a right which
comes into play not just because someone loses his right to reclaim the property out of continuous
and wilful neglect but also on account of possessor's positive intent to dispossess. Therefore, it is
important to take into account before 'stripping somebody of his lawful title whether an adverse
possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the
shoes of the paper owner of the property. This test forms the basis of decision in the instant case.

Reference may also be made to P.I. Manichild Canna Reddy & Others in which the Supreme Court
held that there is another aspect which cannot be lost sight of. The right of property is now
considered to be not only a constitutional or statutory right but also a human right.
Further, in Tukaram Kana Joshi. v . Maharashtra Industrial Development Corporation(2013), the
Supreme Court has recently held that the right to property is now considered to be not only
statutory right but also a human right. Though, it is not a basic feature of the Constitutional or a
Fundamental right. Human rights are considered to be in the realm of individual rights, such as the
right to health, the right to livelihood, the right to shelter and employment etc. Now, however,

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human rights are gaining an even greater multifaceted dimension. The right to property is
considered very much to be part of such dimension.

It may be noted here that under the Human Rights Act 'human rights' have been defined as the
rights relating to life, liberty, equality and dignity. But the term 'human rights' would not apply to
individual rights of parties even against state arising under contract.

Evolution of the Concept of Human Rights

The roots for the protection of the rights of man may be traced as far back as in the Babylonian laws.
Babylonian King Hammurabi had issued a set of laws to his people which is called Hammurabi's
codes, established fair wages, offered protection of property and required charges to be proved at
trial. The codes, while often harsh in their punishments provided standards by which Babylonians
could order their lives and treat one another. Assyrian laws, Hittiti laws and the Dharm of the Vedic
period in India also devised different sets of standards by which obligations of one was provided to
another. Jurisprudence of Lao-Tze and Confucius in China also protected human rights. Thus, the
world's all major religions have a humanist perspective that supports human rights despite the
differences in the contents.

Human rights are also rooted in ancient thought and in the philosophical concepts of 'natural law'
and 'natural rights'. A few Greek and Roman philosophers recognized the idea of natural rights. Plato
(427-348 B.C.) was one of the earliest writers to advocate a universal standard of ethical conduct.
The Roman jurist Ulpian stated that according to law of nature, all men are equal, and by the same
law all are born free. This meant that foreigners are required to be dealt in the same way as one
deals with one's compatriots. It also implied conducting of wars in a civilized fashion. The Republic
(C. 400 B.C, proposed the idea of universal truths that all must be recognized. People were to work
for the common good. Aristotle (384-322 B.C.) wrote in politics that justice, virtue, and rights change
in accordance with different kinds of constitutions and circumstances. Cicero (106-43 B.C.), a Roman
statesman laid down the foundations of natural law and human rights in hi work, The Laws (52 B.C.)
Cicero believed that there should be universal human rights laws that would transcend customary
and civil laws. Sophocles (495-406 B.C.) was one of the first to promote the idea of freedom of
expression against the State. Stoics employed the ethical concept of natural law to refer to a higher
order of law that corresponded to nature and which was to serve as a standard for the laws of civil
society and government. Later, Christianity, especially St. Thomas Aquinas (1225-1274) rooted this
'natural law in a divine law which was revealed to man in part discoverable by man through his God-
given right reason. The city-State of Greece gave equal freedom of speech, equality before law, right
to vote, right to be elected to public office, right to trade and the right of access to justice to their
citizens. Similar rights were secured to the Romans by the jus civile of the Roman law." Thus, the
origins of the concept of human rights are usually agreed to be found in the Greco-Roman natural
law doctrines of Stoicism (the school of philosophy founded by Zeno and Citium) which held that a
universal force pervades all creation and that human conduct should therefore be judged according
to the law of nature.

The Magna Carta (also called Magna Charta)' or the Great Charter of the Liberties of England granted
by King John of England to the English barons on June 15, 1215 was in response to the heavy
taxation burden created by the third Crusade and the ransom of Richard I, captured by the holy
Emperor Henry VI. The English barons protested the heavy taxes and were unwilling to let King John
rule again without some concessions in their rights. The overreaching theme of Magna Carta was
protection against arbitrary acts by the King. Land and property could no longer be seized, judges

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had to know and respect laws, taxes could not be imposed without common council, there could be
no imprisonment without a trial and merchants were granted the right to travel freely within
England and outside. The Magna Carta also introduced the concept of jury trial in clause 39, which
protects against arbitrary arrest and imprisonment. Thus, the Carta set forth the principle that the
power of the King was not absolute. In 1216-17, 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. Although
the Charter applied to a privileged elite, gradually the concept was broadened to include all
Englishmen in the Bill of Rights in 16892 and eventually all citizens.

The Carta was buttressed in 1628 by the Petition of Rights which asserted the rights of citizens to be
free from unrepresentative taxation and arbitrary imprisonment. The Bill of Rights of 1689 which
formed the platform for Parliamentary superiority over the Crown and to give documentary
authority for the rule of laws in England. It also declared that the Parliamentary elections should be
free and binding and it condemned excessive bail as well as cruel and unusual punishments. 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.

The expression 'fundamental rights of man' was stated 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 Declaration, 1776); the Constitution of the United States of
17873 with amendments in 1789, 1865, 1869 and 1919 specified a number of rights of man. The
Virginia Declaration of Rights affirmed that all men are by nature equally free and independent and
have certain inherent rights. The French Declaration of the Rights of Man and the Citizen of 1789
stipulated that men are born and remain free and equal in rights ... the aim of all political association
is the conservation of the natural and inalienable right of man : the e right are liberty, property,
security and resistance to oppression. The French Declaration 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 the constitutional law of many States that human beings
possess certain rights. Worth of the human personality began to be realized.

Thus the term 'human right' came somewhat late in the vocabulary of mankind. It is a twentieth
century name for what has been traditionally known as natural rights or the rights of man. It was
first used by Thomas Paine in the English translation of the French Declaration of the Rights of Man
and Citizen. The term 'natural law' was replaced because the concept of natural law had become a
matter of great controversy and the phrase 'the rights of man' was found unsuitable as it was not
universally understood to include the rights of women.

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 2. Discuss the Theories of Human Rights.

Some theories have been propounded in past to explain the rights of individuals known as right of
mankind, natural rights or human rights. A brief discussion of these theories is being given below:

(1) Natural law theory.

As remarked by Dias, "no other firmament of legal or political theory is so bejewelled with star as
that of 'Natural Law' for it has engaged the attention of some of the greatest thinkers of all ages."
The credit of giving birth to natural law goes to Greeks. It engaged the attention of eminent Greek
scholars such as Sophocles and Aristotle. After the Greeks it was further developed and elaborated
by the Romans. The early and original law of Romans was called 'Jus Civil'. Later on, the Romans
developed another legal system called 'Jus gentium" which was considered to be the law of universal
application. In the republican era of Rome 'Jus gentium' was reinforced by natural law or 'Jus natural'
as it was commonly called. As pointed out by Brierly, by "Jus natural" the Romans meant "the sum of
those principles which ought to control human conduct because founded in the very nature of man
as a rational and social being. The law of nature is the expression of what is just against what is
merely expedient at a particular time and place, it is what is reasonable against what is arbitrary,
what is natural against what is convenient and what is for social good against the personal will.”
Thus natural law was based on the rational and reasonable needs of a man's nature.
According to Romans natural law embodied the elementary principles of justice which were the
dictate of rights and reason. In other words, those principles were in accordance with nature and
were unalterable and eternal.
Natural rights theory has been derived from the above-mentioned natural law theory. The natural
rights theory can be said to be akin or closely associated with modern human rights. John Locke was
the chief exponent of natural rights theory. According to John Locke, human beings existed in a state
of nature where men and women were in a state of freedom, able to determine their actions and
also in a state of equality. Locke further imagined that in such a state of nature, no one was
subjected to the will or authority of another. Subsequently, in order to avoid certain hazard and
inconvenience of the state of nature they entered into a contract, some sort of social contract,
whereby they mutually agreed to form a community and set up a body of politic. But they retained
certain natural rights, such as, rights of life, liberty and property. It was the duty of the goverrunent
to respect and protect the natural rights of its subjects. A government which failed or neglected the
said duty would forfeit its validity and office.

However, it may be noted that the concept of natural law, and so also that natural rights theory
underwent changes in different periods in accordance with times and circumstances.

(2) Positivism or the theory of the Authority of State.

A different approach in respect of the rights was adopted by the positivists. The positivism was in
vogue in 18th and 19th centuries. Positivists believed that people would be bound to obey law if it
was created by appropriate legislative authority or sovereign irrespective of its being reasonable or
unreasonable. The positivists called this law, law positivism i.e. law which is in fact as contrasted
with law which ought to be. Bynker Shoek was one of the chief exponents of the positivists school.
According to the positivists, the source of human rights lies in the enactment of a system of with
sanctions attached to it. They emphasise the distinction between "is" and 'ought' and criticize
natural law theorists for undue emphasis on 'ought' and for blurring the distinction between the
two. The modern exponent of positivism is Prof. H.L.A. Hart. According to him, there is a distinction

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between invalidity of law and the morality of law. This is the basic difference between natural rights
theory and Positivist theory. According to the Positivists, a law to be valid must be enacted by an
appropriate legislative authority. Such a law remains valid, irrespective of its morality.
This theory has been severely criticized. It fails to explain the validity customary law which is not
created by any legislative authority. It also fails to explain general principles of law recognized by
States. So is also the case of law established by organs of Public International Organisations.

(3) Marxist theory.

The Marxists do not conceive the rights of individuals as distinct from the rights of the society as a
whole. According to them, only by achieving the upliftment of the society or community, the higher
freedoms of individuals can be achieved. Thus in view of this theory even satisfaction of basic needs
of individuals are contingent on realization of social goals. In their view, notion of individual rights is
a bourgeois illusion. They regard concepts of law, morality, democracy, freedom etc. as historical
categories whose content is determined by the conditions of life of society or community. The
content of notions and ideas change in accordance with the changes that take place in the lives of
people living in a society.

(4) Theories based on Justice.

John Rawl is the chief exponent of this theory. According to him, "Justice is the first virtue of social
institutions." In his view, the role of justice is crucial to the understanding of human rights. Indeed
human rights are an end of justice. The principles of justice provide a way of assigning rights and
duties in the basic institutions of society and also define the appropriate distribution of the benefits
and burdens of social co-operation. The general conception of justice behind the principles of justice
is one of fairness. The concept of fairness runs throughout in theories based on justice. The concept
of fairness and justice help to determine all social primary goals, such as, liberty and opportunity,
income and wealth and the leases of self-respect which are to be distributed equally unless an
exception is made for the benefit of least forward.

(5) Theories based on dignity.

Th exponents of this theory regard the protection of human dignity as a paramount objective of
social policy. Following a value-policy oriented approach based on the protection of human dignity,
they point out that the demands for human rights are demands, for wide sharing in all the values
upon which human rights depend for effective participation in all community value processes.
According to them there are eight interdependent values upon which human rights depend. They
are:
(i) respect;

(ii) power;
(iii) enlightenment;

(iv) well-being;
(v) health;

(vi) skill;
(vii) affection;

(viii) rectitude.

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The ultimate goal of the exponents of theories based on dignity is to ensure a world community in
which there is democratic distribution of values, all available resources to be utilized to the
maximum and where paramount objective of social policy is the protection of human dignity.
The right guaranteed under Article 21 of the Constitution of India includes the right to lead a
dignified life. In a case, Karnataka High Court has recognised this right and while referring to an
earlier Supreme Court decision has observed that Courts have time and again held that right to lead
a dignified life is a part of fundamental right of citizens embedded in Article 21 of the Constitution of
India. The Kama taka High Court observed in this case, that while public authorities are always
required to implement the statutory provisions in accordance with those provisions and their
existence itself being for such purpose, in the course of such implementation they should not
trample upon the rights of citizens particularly driving them to demean themselves or denying them
the right to lead a dignified life.

(6) Theory based on equality of respect and concern.

Last but not the least theory regarding human rights in the theory based on equality of respect and
concern. This theory was propounded by Dworkin.lv The basic premises of this theory is that
government must treat all their citizens with equal concern and respect. Dworkin has affirmed the
utilitarian principle that 'everybody can count for one, nobody for more than one'. He even advances
the idea of State intervention in order to achieve social welfare. In his view, a right to liberty is too
vague to be meaningful but there are certain specific liberties, such as, freedom of speech, freedom
of worship, rights of association and personal and sexual relation require special protection against
government interference. If these liberties were left to a utilitarian calculation or an unrestricted
calculation of general interest, the balance would tilt in favour of restriction instead of general
interest.

A perusal of above theories shows that no single theory can satisfactorily explain present state and
development of human rights. However, the natural rights theory based on natural seems to be
more akin to the present concept and development of human rights. Theory of natural rights along
the theories based on justice, theory based on dignity and theory based on equality of respect and
concern may go a long way to explain the present trend of respect for and protection of human
rights. It may be noted here that twentieth century has witnessed the decline of positivism and the
revival of natural law. Once again the faith in natural law was reaffirmed. The abovementioned
theories based on justice and theory based on dignity are based on natural law theory. It deserves to
be noted that the conception of natural law underwent significant changes during this period. Basing
their views on Kant and Hegel, the modem writers adapted natural law in accordance with times and
circumstances. The chief exponent of this movement were Stammler and Kohler. Stammler, for
example, conceded that natural law could be adapted to the changing times and circumstances
although its fundamental or basic principles remained unalterable. He, therefore, provided the
theory of "natural law with a variable content" Prof. Fuller of America also emerged as a great
exponent of natural law. He provided the theory of "inner morality of law." That is to say, there is an
inner morality of law and there is a definite purpose behind law. Law is not a body of meaningless
set of rules and does not exist for its own sake. Law exists or is created to achieve some purpose.
The least that can be said in the end is that the idealist character of international law has greatly
influenced public opinion in general, and development of human rights in particular.

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 3. What are human rights? Explain different kinds of human rights.

Preamble of the Universal Declaration of Human Rights.

One of the main reasons for the inclusion of the provisions concerning human rights in the U. N.
Charter was the bitter experience which the mankind had undergone during the First and Second
World Wars when large scale violations of human rights were made. That is why, the preamble of
the United Nations Charter expresses the determination "to save succeeding generations from the
scourge of war" which twice in our lifetime has brought untold sorrow to mankind, and "to reaffirm
faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights
of men and women ..... " Thus large-scale violations of human rights during two World Wars,
especially the Second World War, including the Nazi atrocities were fresh in the minds of the
framers of the U. N. Charter. That is why, one of the first decisions that the General Assembly took
was to prepare an International Bill of Human Rights and for this purpose asked the Economic and
Social Council for a study by the Commission on Human rights. The large scale violations of human
rights including the Nazi atrocities were also fresh in the minds of those drafted and adopted the
Universal Declaration of Human Rights. These are echoed and reflected in the wordings of the
Preamble. It was also natural for the framers of the Preamble to affirm "their faith in fundamental
human rights, in the dignity and worth of the human person, and in the equal rights of men and
women," because they considered, and rightly too, it to be the "foundation of freedom, justice and
peace in the world." It is in this context that we have to see and understand preamble of the
Universal Declaration of Human Right which is as follows :-

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of the freedom, justice and peace in the world.
Whereas disregard and contempt for human rights have resulted in barbarous acts which have
outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy
freedom of speech and belief and freedom from fear and want has been proclaimed as the highest
aspirations of the common people.
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort to rebellion
against tyranny and oppression, that human beings should be protected by the rule of law.
Whereas it is essential to promote the development of friendly relations between nations.

Whereas the people of the United Nations have in the Charter reaffirmed their faith in fundamental
human rights, in the dignity and worth of the human person and in the equal rights of men and
women and have determined to promote social progress and better standards of life in larger
freedom.

Whereas Member States have pledged themselves to achieve, in co-operation with the United
Nations, the promotion of universal respect for and observation of human rights and fundamental
freedoms.
Whereas a common understanding of these rights and freedoms is of the greatest importance for
the full realization of this pledge.
Now therefore, the General Assembly proclaims this Universal Declaration of Human Rights as a
common standard of achievement for all people, and of all nations, to the end that every individual
and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and

12
education to promote· respect of these rights and freedoms and by progressive measures, national
and international, to secure their universal and effective recognition and observance, both among
the peoples of Member States themselves and among the peoples of territories under their
jurisdiction:

Scheme of the Enumeration of the Rights and the Rights Enumerated in the Declaration.
The Universal Declaration consists of a Preamble as noted above and 30 Articles covering both civil
and political rights and economic, social and cultural rights. The Preamble refers to the "faith in
fundamental human rights in the dignity and worth of the human person and the equal rights of
men and women" which the 'peoples of the U. N. have reaffirmed in the Charter of the U. N. and
their determination "to promote social progress and better standards of life in larger freedom". It
also refers to the pledge taken by the member state “to achieve, in co-operation with the United
Nations, the promotion of universal respect for the observance of human rights and fundamental
freedoms." Through the Preamble, the General Assembly proclaimed the Universal Declaration of
Human Rights “as a common standard of achievement for all peoples and all nations, to the end that
every individual and every organ of the society, keeping this Declaration constantly in mind, shall
strive by teaching and education to promote respect for these rights and freedoms and by
progressive measures, national and international, to secure their universal and effective recognition
and observance, both among the peoples of Member States themselves and among the peoples of
territories under their jurisdiction." The Preamble also notes the reasons which impelled the General
Assembly to proclaim the Declaration of Human Rights' and also the need for such proclamation and
after having stated this in the Preamble, the General Assembly goes on to proclaim the rights-civil
and political as well as economic, social and cultural. It may be noted that the Declaration is neither
addressed to nations nor to Member States but to every individual. This is in keeping with the words
"We the peoples of the United Nations" with which the preamble of the U. N. Charter commences.
The rights proclaimed in the Universal Declaration of Human Rights," may be classified into the
following, four categories:
(i) General (Articles 1 and 2),

(ii) Civil and Political (Articles 3 to 21),

(iii) Economic, Social and Cultural Rights (Articles 22 to 27), and

(iv) Concluding (Articles 28 to 30).

(i) General.
Article 1 of the Universal Declaration provide that all human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood. Article 1 thus proclaims the inherent freedom and equality in
dignity and rights of all human beings.

According to Article 2, everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as, race, colour, sex, language, religion, political or
other opinion, national .or social origin, property, birth or other status.
Further or no distinction shall be made on the basis of the political, jurisdictional or international
status of the country or territory to which a person belongs, whether it be independent trust, non-
self governing or under any other limitation of sovereignty.

13
As noted above, a remarkable thing about the Universal Declaration is that it is neither addressed to
nations nor member States of the U. N. but to every individual. This is evident from Articles 1 and 2.
Article 29 also deserves mention in this respect.

(ii) Civil and Political Rights.

The civil and political rights enumerated under the Declaration include the following :-
(1) Right to life, liberty and security of person.

(2) Prohibition of slavery and slavery trade.

(3) Prohibition of torture, cruel, inhuman or degrading treatment or punishment.

(4) Right to be recognized as a person before law.

(5) Equality before the law and equal protection of law against any discrimination in violation of the
Declaration.
(6) Right to effective remedy by the competent national tribunals.
(7) Prohibition of arbitrary arrest, detention or exile.

(8) Right to a full equality to a fair and public hearing by an independent and impartial tribunal.
(9) Right to be presumed innocent until proved guilty according to law in public trial.

(10) Freedom from ex-post facto Iaws.

(11) Freedom from arbitrary interference with privacy, family, home, correspondence or attack on
honour or reputation and right to protection by law against such interference.
(12) Right to freedom of movement and residence within the borders of State.

(13) Right to leave any country, including his own and to return to his country.
(14) Right to seek and enjoy in other countries asylum from prosecution in respect of political
crimes.
(15) Right to nationality.

(16) Freedom from arbitrary deprival of nationality and right to change nationality.
(17) Right to marry and to found a family and equal rights as to marriage, during marriage and at its
dissolution.
(18) Right to own property and freedom from arbitrary deprival of property.

(19) Right to freedom of thought, conscience and religion.

(20) Right to freedom of opinion and expression.

(21) Right to freedom of peaceful assembly and association.

(22) Right to take part in the government of his country.

(23) Right of equal access to public service in his country.

(iii) Economic, Social and Cultural Rights.

Economic, Social and Cultural Rights are enumerated in Articles 22 to 27. They are :

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(1) Right to social security and the right to realization of the economic, social and cultural rights
indispensable for his dignity and the free development of his personality.

(2) Right to work; free choice of employment, just and favourable conditions of work and protection
against unemployment.

(3) Right to equal pay for equal work.

(4) Right to just and favourable remuneration.

(5) Right to form and to join trade Unions.

(6) Right to rest and leisure.

(7) Right of living adequate for the health and well-being of himself and his family.
(8) Right of all children to enjoy same social protection.

(9) Right to education.

(10) Right of parents to choose the kind of education for their children.

(11) Right to participate in cultural life of the community.

(12) Right to protection of moral and material interests resulting from any scientific, literary or
artistic production of which he is the author.

(iv) Concluding or Miscellaneous Articles.

Articles 28 to 30 may be referred as concluding or miscellaneous Articles because they do not fit in
any of the above three categories. For example, Article 28 provides that everyone is entitled to a
social and international order in which the rights and freedoms set forth in this Declaration can be
fully realized. Besides this Article 29 (1) is an exception because this is the only provision in the
whole Declaration which speaks of duties. Article 29 (1) provides that everyone has duties to the
community in which alone the free and full development of his personality is possible. However,
Article 29 (2) makes it clear that in the exercise of his rights and freedoms, everyone shall be subject
only to such limitations as are determined by law solely for the purpose of securing due recognition
and respect for the rights and freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society. Article 29(3) further provides that
these rights and freedoms may in no case be exercised contrary to the purposes and principles of
the United Nations.
The "last article of the Declaration; namely, Article 30, incorporates a rule of interpretation or a
saving clause by providing that nothing in this Declaration may be interpreted as implying for any
state, group or person any right to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms set forth herein.

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 4. What are the sources of International Human Rights Law?

Sources of International Human Rights Law

International human rights law derives from the variety of sources which are as follows:

(1) International Treaties.

Treaties are the most important sources of international human rights law. Presently, a number of
multilateral treaties relating to human rights are in force which are legally binding to those States
which are parties to them. The most important amongst them is the United Nations Charter itself
which is binding on all the Stat in the World and establishes at least general obligations to respect
and promote human rights.
In addition to the Charter, a number of other multilateral human rights treaties have been
concluded under the auspices of the United Nations and its specialized agencies which create
obligations to the contracting parties.

Regional treaties on human rights such as European Convention on Human Rights, American
Convention on Human Rights and African Charter on Human and People's Rights are also legally
binding on the contracting States and they therefore are the sources of international human rights
law.

(2) International Custom.

Certain international human rights have acquired the status of customary International Law by their
widespread practice by States and they, therefore, are binding on all the States without regard to
whether they have expressly consented. The 1987 Restatement (Third) of the Foreign Relations Law
of the United States takes the position that customary International Law protects at least certain
basic human rights. Section 702 of the Restatement provides, “’A State violates International Law if,
as a matter of State policy, it practices, encourages, or condones
(a) genocide,
(b) slavery or slave trade,

(c) the murder or causing the disappearance of individuals,

(d) torture or other cruel, inhuman or degrading treatment or punishment,

(e) prolonged arbitrary detention,

(f) systematic racial discrimination, or

(g) a consistent pattern of gross violations of internationally recognized human rights.

Although the above list might not be exhaustive or other may disagree to the above list of human
rights as to have acquired the status of customary rule of international law, there seems to be
widespread agreement that a number of rights are at present included within customary
international law and consequently they are the sources of international human rights law. It is
desirable that a study is conducted to prepare a list of those human rights which have acquired the
status of international customary law. It would be of immense help to the International Court of
Justice, States and to their courts as they would come to know about them.

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(3) Other International Instruments.
A great number of international declarations, resolutions and recommendations relating to human
rights have been adopted under the auspices of the United Nations which have established broadly
recognized standards in connection with human rights issues despite the fact that they are not
legally binding on the States. The most important of these is the Universal Declaration of Human
Rights of 1948 which possesses a moral or political force that may be useful in persuading
government officials to observe human rights standards. Some of the rights referred to therein have
acquired the character of customary rule of International Law. Declarations adopted by the Tehran
Conference (1968) and the Vienna Conference (1993) also serve as the source of the commitment by
the international community.

(4) Judicial Decisions.

Decisions of the various judicial bodies are relevant in the determination of the rules on human
rights issues. Although action by the International Court of Justice in the area has been limited, there
is no doubt that cases could fall within its competency. European Court of Human Rights-a regional
court, since the Lawless case decided in 1960, has adjudicated many disputes successfully. The
increasing case load prompted a lengthy debate which resulted into the creation of a new European
Court of Human Rights on November 1, 1998. Although a few cases have been brought before the
Inter-American Court of Human Rights, case law under the American Convention is as yet in its
infancy. Decisions of the municipal courts on human rights issues have contributed immensely to the
development of international human rights law.
In addition to the judicial decisions, opinions of the arbitral bodies whose function is to mediate on
complaints of human rights violations under various treaties also assist in the determination of the
rules relevant to international human rights.

(5) Official Documentations.

Official documents of the United Nations and its subsidiary bodies have produced a vast amount of
documentation relating to human rights matters. Human Rights Law Journal, Human Rights Review
and European Law Review and the collective work done under the auspices of the international
bodies are of considerable value.
The above are the important sources of international human rights law but they by no means are
exhaustive. Many international and national institutions contribute to the protection of human
rights despite the fact that they primarily concern with other issues. Further, a variety of actions
taken by the United Nations organs and other international bodies have too supported specific
efforts to protect human rights. It is to be noted that out of the above sources treaties and customs
are the most important sources. Binding force of human rights obligations rests ultimately in them
only. However, the inspiration of these obligations lies in 'morality, justice, ethics' or a simple regard
for the dignity of mankind.

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 5. Write an essay on universalisation of Human Rights.

Six Features of Human Rights

1. People have rights simply because they are human.
All people have the right to lead a dignified and human life, and work towards achieving this for all
people. These rights cannot be denied on the basis of caste, colour, religion and gender.

2. Human rights are universal

They take no account of nation, race, sex or colour. People of all nations, colour, race, religion have
same rights everywhere. The developed and developing countries in all continents of the world must
guarantee same rights to all their citizens.

3. Human rights treat all people as equal

This follows the idea that “all human beings are born free and equal in rights and dignity” and
therefore deserve the same opportunities and treatment, whilst simultaneously respecting their
different cultures and traditions, political persuasion, sexuality, social origin, status etc.
Governments must therefore work to create the same opportunities for all the people in the country
and this may involve extra work to make those opportunities the same for certain sections in society
e.g. women, children, and the disabled.

4. These rights belong primarily to individuals

This means that they are concerned with the relationship between an individual and the state.
Consequently, it is for the government to create a society where each individual can enjoy and freely
exercise his or her rights to the full.

5. Human rights encompass the fundamental principles of humanity

These rights are considered to be basic for the development of human personality and for the sake
of human dignity. Examples of such rights are the right to life, freedom from slavery and freedom
from torture.

6. The promotion and protection of human rights is not limited to national boundaries but rather
stipulates certain ideals that apply the world over
Human rights hold nations accountable for meeting the conditions which satisfy the promotion,
protection and respect for these rights.

Major Landmarks in the Development of Human Rights

Incorporation of a Bill of Rights in some early national charters and constitutions in Europe indicates
that the concept is not of recent origin.

Early European charters supporting the idea of certain fundamental freedoms were the Magna Carta
of 1215, the Union of Utrecht in 1579 (Netherlands), and the British Bill of Rights in 1689.

These charters specified certain freedoms that one could claim if one held a particular status and
were not all-encompassing, but rather conferred upon an individual.

Over the next few centuries, the idea of liberty gradually separated from status and was viewed as a
right pertaining to all human beings. This was also the time when the British colonies in North
America strove for independence and drew up their own Declaration of Independence in 1776,
based on the idea of universal equality, and the existence of certain inalienable rights.

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These documents were eventually incorporated into the American Bill of Rights which is a part of the
U.S. Constitution.

The international growth of the concept can be demonstrated by the French Declaration of the
Rights of Man in 1789. The rights of the 18th and 19th centuries can be termed as ‘classic’ rights,
relating to the freedom of the individual and were incorporated in many national constitutions.
Today, governments provide new category of rights in the fields of employment, education, health
and welfare. These are termed as social rights. The social rights were first embodied in international
regulations for example, the International Labour Organisation (ILO) was founded in 1919 and was
the originator of various labour regulations.
The tremendous atrocities of the Second World War can be said to mark the start of the current ‘era
of human rights’, for they ended the view that it was up to the individual state to determine how to
treat its citizens.

The Preamble to the Charter of the United Nations reaffirms faith in fundamental human rights......”.
Article 1 of the UN Charter states that promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or religion is one of the
purposes of the United Nations.
Thus, human rights are a legitimate concern of the international community. Signatories to the UN
Charter undertake the responsibility of promoting human rights individually and collectively.

In 1946, the UN Commission on Human Rights was established and in less than two years it had
drafted the Universal Declaration of Human Rights which was adopted by the UN General Assembly
(UNGA) in 1948.

In 1966 the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights were adopted.

Together with the First and Second Optional Protocols to the International covenant on Civil and
Political Rights, these five documents comprise the International Bill of Human Rights.

Thus, internationally recognized human rights have become a new international ‘standard of
civilization’.

After the Second World War, there has developed a body of international human rights code
reaffirming the morally appealing idea of adherence to shared standards of justice to qualify for
membership of the international community. It has become a factor of political legitimacy. These
standards of civilized behaviour link national and international legitimacy. The visible rise of
universal human rights culture depicts moral progress and is an effective response to major threats
to human dignity posed by modern political and economic trends.

Viewing development with the ‘rights’ perspective for sustainable development appears to be
gaining ground. That we are all equally human seems to be more acceptable now, with the current
slogans: ‘All human rights for all’ and ‘The world is one family’. To us Indians, it is nothing new. We
have for long believed: ‘Sarve Bhavantu Sukhinah’, and ‘Vasudhaiv Kutumbakam’.

Important Dates for Human Rights

l 1215 Magna Carta

l 1776 American Declaration of Independence and Bill of Rights

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l 1787 Constitution of the United States l 1789 French Declaration of the Rights of man
l 1946 UN Commission on Human Rights

l 1948 Universal Declaration of Human Rights

l 1949 Geneva Conventions

l 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms
l 1961 European Social Charter

l 1966 International Covenant on Economic, Social and Cultural Rights (ICESC); the International
Covenant on Civil and Political Rights (ICCPR); and the (First) Optional Protocol to the Covenant on
Civil Inhuman or Degrading Treatment or Punishment (UNCAT)
Ø 1993 Vienna Declaration and Programme of Action adopted at the World Conference on Human
Rights.

Human Rights in the Indian Constitution

The Constitution of India duly recognizes the importance of human rights and guarantees certain
Fundamental Rights in Part-III which includes the right of equality, right to freedom, right against
exploitation, right to freedom of religion, cultural and educational rights and the right to
constitutional remedies.
Article 32 gives the right to constitutional remedy in the form of original jurisdiction of the Supreme
Court of India for the enforcement of these Fundamental Rights. This is the protection of individuals
against invasion of their human rights.

Part-IV of the Indian Constitution contains Directive Principles of State Policy which are the
principles fundamental in governance, to be observed by the State in the formulation of its policies.
These include the duty of the State to secure a social order for the promotion of the welfare of the
people, social justice, right to work, to education and social security, provision for just and humane
conditions of work, promotion of interests of the weaker sections, duty to raise the level of nutrition
and the standards of living and to improve public health, protection and improvement of
environment, ecology and wild life etc.
In addition, the Fundamental Duties of every citizen covering a wide range to strengthen the
guarantee of Fundamental Rights are in Article 51A (Part IVA of the Constitution).
In addition to Article 32 empowering the Supreme Court to enforce the Fundamental Rights, the
High Court is empowered by Article 226 for the same purpose to exercise its powers.
The primary duty of the higher judiciary to protect and enforce human rights is the constitutional
mandate. Rule of law is a basic feature of our Constitution, as is judicial review. The role of the
Supreme Court of India is commendable in expanding the human rights and it has found Article 21 of
the Constitution as the most fruitful article.
In several cases the Indian Supreme Court has said that compensation is to be given for violation of
rights under the article, such as, right to human dignity, right to healthy environment, right to social
security, right to protection of childhood etc. The impact of the 1948 Universal Declaration of

20
Human Rights on the drafting (Parts III and IV) of the Indian Constitution is felt throughout. India has
acceded to the Universal Declaration of Human Rights as well as to both the Covenants with certain
reservations.

Magna Carta Libertatum of 1215,- the document with which the British King at that time responded
to complaints about the abuse of power on his part. It states that “no freemen shall be taken or
imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon
him, except by the lawful judgment of his peers or by the law of the land” (Article 39). In short, this
was a first indication of the rule of law.
Philosophers such as John Locke (1632-1704), Jean-Jacques Rousseau (1712-1778) and Immanuel
Kant (1724-1804), left an important mark on the ideas about human rights in the 18th and 19th
centuries.

Their writings, together with documents such as the French Déclaration des Droits de l’Homme et du
Citoyen (1789) and the American Declaration of Independence (1776), served as a departure from
the thinking up to that time, in which, to put it crudely, the people were there for those in power,
rather than the other way round.
The first signs of the international protection of human rights date from a much later time, namely
the late 19th century and the beginning of the 20th century.

Reference can be made to the Brussels Conference of 1890, where a multilateral anti-slavery treaty
was accepted and the Hague Peace Conferences of 1899 and 1907, where about fifteen conventions
were drawn up in the field of the humanitarian aspects of waging war as well as international
dispute settlement.
At that time, the first treaties also appeared for the protection of national minorities, such as the
1878 Treaty of Berlin, in which the Balkan states such as Bulgaria, Montenegro, Serbia and Romania
were required to observe freedom of religion for the Muslim minorities in Bulgaria and Montenegro
and the Jewish minority in Serbia and Romania, if they were also to participate in the ‘European
Concert’.

The Covenant on the League of Nations also contained a number of provisions relating to matters
such as the achievement of human labour conditions (Article 23) and the protection of national
minorities (in particular, Article 24, paragraph 1), although it did not actually amount to very much.
The real breakthrough in the field of the international protection of human rights is linked to the
establishment of the UN, founded on the rubble of WW-II.
It was partly because of the persistency of NGOs, such as the American Jewish Committee and the
Carnegie Endowment for International Peace, that the UN Charter ultimately contained seven
provisions that in one way or another related to human rights.

One of these is Article 68, according to which the Economic and Social Council of the UN (ECOSOC)
shall set up commissions for, amongst others, the protection of human rights.

The Article serves as the legal basis for the Commission on Human Rights, later on replaced by the
UN Human Rights Council. It was this Commission, established in 1946, that was responsible for the
drafting of the Universal Declaration of Human Rights (UDHR, 1948).

21
Despite the fact that some later developments, such as the threat to human rights as a result of
large-scale environmental pollution, exhausting natural resources and combating terrorism, are not
provided for in the UDHR, and that the notion of collective rights, such as the right to self-
determination of peoples and (parts of) the right to development, are also of a later date, the UDHR
can still be seen as the worldwide core document in the field of human rights, the ‘mother’ of all
human rights instruments.

In the UDHR, the different human rights – civil and political, as well as economic, social and cultural –
appear comfortably together, from the right not be tortured to the freedom of expression, from the
right to seek asylum in other countries to the right to adequate food.
The latter is, together with other basic needs, expressed in Article 25 of the UDHR: Everyone has the
right to a standard of living adequate for the health and well-being of himself and his family,
including food, clothing, housing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.

According to Article 28 of the UDHR, everyone has a right to the existence of a social and
international order in which the rights and freedoms set forth in the Declaration can be fully
realised. This article clearly shows that human rights are not only concerned with the obligation of
states to refrain from violations, but also with an obligation to provide support if people are not able
to achieve human rights for themselves on their own strength.
The Preamble to the Universal Declaration also refers to this when it speaks of the “inherent dignity
and worth of the human person” and the task to fully realise this all over the world, as “a common
standard of achievement for all peoples and all nations”
The UN protection of human rights is primarily covered by a series of international conventions in
which these human rights are worked out in more detail, and a huge number of politically and quasi-
legal oriented instruments, particularly the instruments that are these days available to the UN
Human Rights Council.
One can look at all these instruments in terms of a continuum, moving from soft law instruments,
like views on specific human rights or elements thereof adopted by resolution by, for instance, the
UN General Assembly, to binding international human rights law, and, within the latter grouping, the
special category of peremptory standards of international human rights law (ius cogens).
As of now, the UN works with a catalogue of 17 Core International Human Rights Instruments − such
as the international conventions on civil and political rights; economic, social and cultural rights; the
rights of the child; the rights of migrant workers etc., and a range of protocols thereto, and more
than 90 other Universal Human Rights Instruments, varying from a Declaration on the Rights of
Mentally Retarded Persons and a Declaration on Social Progress and Development to the Statute of
the International Criminal Court.
Note the broad scope of all this, and the high numbers of instruments; it is clear that one must be
cautious when assuming universality of the human rights. It would be impossible to claim that all
these documents/instruments do indeed reflect universally accepted norms as the UN labels
suggest. Each of the instruments would deserve close scrutiny, before that statement could be
made.

Consider this warning number one.

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Universality of human rights from a quasi-legal and a legal perspective
Dealing with the universality of human rights from a quasi-legal and a legal perspective is the easiest
part of the story. The UDHR infers the notion of the universality of human rights in its name. And
despite wanting to take their word for it, it remains important to be cautious with the word – even in
relation to the Universal Declaration, because, amongst other good reasons, in 1948 the UN
comprised only 58 states, eight of them abstaining from voting for various reasons, compared with
193 now. It was particularly during the 1950s and 1960s that many sovereign states were added,
mainly as a result of the process of de-colonisation, and subsequently through more incidental
events such as the disintegration of states like Yugoslavia and the Soviet Union.
The question of what the 134 new states would have contributed to the discussions on the UDHR in
1946-1948 and what they would have done in a vote on this is obviously hard to answer with
absolute certainty.
However, for many of them it is well known that they subsequently supported the UDHR, be it in
various ways, especially while meeting at the two World Conferences on Human Rights, in Tehran
(1968) and in Vienna (1993).
In the document of the latter conference, the UN member states endorse sentences in which the
UDHR is characterised as a “common standard of achievement” and a “source of inspiration”, even
though it was also determined that the “significance of national and regional particularities and
various historical, cultural and religious backgrounds must be borne in mind”.
In a September 2005 core document, adopted by the UN General Assembly at the occasion of the
60th anniversary of the UN, the words of 1993 were repeated: We reaffirm that all human rights are
universal, indivisible, interrelated, interdependent and mutually reinforcing and that all human
rights must be treated in a fair and equal manner, on the same footing and with the same emphasis.
While the significance of national and regional particularities and various historical, cultural and
religious backgrounds must be borne in mind, all States, regardless of their political, economic and
cultural systems, have the duty to promote and protect all human rights and fundamental freedoms.
Commenting upon similar words, used in successive UN documents, the Dutch Advisory Council on
International Affairs stated twelve years ago that “universality is not uniformity”.
This refers to the “margin of appreciation”, which states do have with regard to the achievement of
human rights. There is an inherent tension in the wording of the 2005 document, but on a positive
note, it repeats, in line with numerous other documents, the indivisibility and interrelatedness of all
human rights; it underlines the notion that they are mutually reinforcing each other; it restates the
significance of national and regional particularities and various historical, cultural and religious
backgrounds; and it emphasises that all states have to live up to all human rights, “regardless of their
political, economic and cultural systems”.

But, what about the interaction between these four notions? What does it mean for daily
international practice that states have to “bear in mind” the significance of national and regional
particularities and various historical, cultural and religious backgrounds when discussing human
rights practices? Most would be willing to believe that the 1993 and the 2005 documents can be
seen as progress, because, as former US President Jimmy Carter once noted, “in the life of the
human spirit words are action”; but one cannot easily hold that such a typical UN consensus formula
solves the problem of universality, not in the field of the norms, let alone in the field of practice.

23
Let this be warning number two.

Standards and outside interference

Besides the warning against easy answers, it is of course imperative to keep in mind that, in
approximately 65 years of legal development of modern human rights law, a lot has been
accomplished as well. One can easily think of the UN human rights treaty system, the Universal
Periodic Review as conducted by the UN Human Rights Council, etc., but also of the human rights
conventions adopted by the International Labour Organisation, on issues such as forced and child
labour. Some of these conventions are even older than 65 years, and, while updated in some cases,
are still very much alive and kicking.
Linking all that to the discussion on universality and/or nonuniformity, the starting point (terminal
station or borderline) should time and again be that there is a series of human rights that have to be
observed in any case, whether states want to or not (thus bypassing the “consent to be bound”, the
traditional fundament of international law). These are the rights that John Locke would have
described as (pre-state) “natural rights”, and of which Jean-Jacques Rousseau would have said that
people would have included them without hesitation in their “social contract”. Examples are the
prohibition on torture, the freedom of expression and religion, but also, for example and most likely,
seen in the light of later developments, the right to food or maybe the right to (clean) water, being a
right indispensable to the realisation of many other rights, such as the right to life. In human rights
doctrine and conventions, some of these rights are referred to nowadays, in line with Locke’s notion
of ‘natural rights’, as ‘non-derogable’; i.e., rights which may not be deviated from, even in times of
emergency.

Apart from thus identifying some rights as being more important than other rights, my starting point
(terminal station or borderline), would also be that in principle all internationally recognised human
rights are universal rights, unless states can argue on good grounds that an exception to the rule is
desirable or acceptable in their situation. A traditional case concerns the prohibition on torture and
the case of the ticking bomb: is it permissible to exercise serious physical pressure on persons
deemed to know about a threat of an attack? States have regularly appealed and still do appeal to
these types of cases to make exceptions to rules, sometimes even leading to the internal legal
recognition that such physical pressure is permissible. We all know the position of the previous legal
advisor to the US government on such issues as water boarding. The core approach in human rights
doctrine to these issues is that states in such cases should be prepared to have their conduct
assessed by, in this particular issue, the UN Committee against Torture or, if they are not a party to
the relevant UN convention, should apply the findings of the Committee analogously. By adopting
this approach, states which have negotiated an ‘elastic relationship’ to certain human rights for
themselves are in a defensive position, knowing that in the last instance they are not the ones who
can judge the room they created for themselves. But part of the problem is, of course, that many
states are not willing to accept external control by bodies of independent experts. Even the
Netherlands is not amused by external criticisms, or when it is overruled by international supervisory
bodies such as the European Court of Human Rights, in which, according to its Constitution,
international law plays a primary role and, in which, people under its jurisdiction are allowed to file
complaints before international and European supervisory bodies in cases of alleged human rights
violations. A significant proportion of the member states of the UN are not party to any human
rights conventions at all, while, furthermore, far too few states have the courage to also become
party to those (parts 212 of the) conventions and/or protocols thereto which provide for rights to
complain (giving individuals − and someSmes others − internaSonal locus standi), and which would
give the ratification acts a serious extra dimension. See it as extra (quasi-)legal teeth, alongside the

24
periodical reporting obligations and the like. But as said, many states are rarely willing to accept
outside criticism, let alone criticism by independent experts. Further to that, many of them even
protest if a peer review as developed by, for instance, the UN Human Rights Council comes too
close. (Just think of the Universal Periodic Review, within which three states ‘have a look’ at the
human rights practice of another UN member, followed by comments/recommendations by the
Council as a whole.) Let that be warning number three. National vs. international Apart from this, it
has to be noted that even if states are party to conventions and formally have to accept judgments
and views of international supervisory bodies – letting aside here some weaknesses of the UN and
regional supervisory mechanisms as such − they (oTen) do have a “margin of appreciaSon” (again:
universality is not necessarily uniformity). For instance, the right to fair trial is undoubtedly one of
the universal human rights, but the paths to it may be very different. By way of extremes, one can
observe states with a complete absence of an independent judiciary, and states that actually have a
very sophisticated legal system developed over many years. For both, the right to a fair trial is a
“common standard of achievement”, something they have to realise and live up to, but the roads
leading to it are clearly different. As to the margin of appreciation notion, it can be added more in
general that some states are very young and have many other concerns, in addition to strictly
human rights concerns, while other states are trying to put an end to a leftwing or right-wing
dictatorial past and cannot do so from one day to the next. Other states again have intrinsically
political tensions that are at loggerheads with a number of fundamental ideas behind human rights.
For example, in Islamic states, religion and state power are extensions of each other. Nevertheless,
these states are expected to commit to freedom of religion, the core question being to my mind 213
how tolerant they are towards other religions and to what extent they try to restrain their Muslim
citizens from taking action against other (non-)believers. In such a case, the slogan that universality
does not imply uniformity still applies, but also reaches its limits; it is no longer a matter of actively
striving to achieve the higher goal, which in this case is the full recognition of the freedom of
religion, but of effectively removing the sharp edges of a government policy aimed at privileging a
particular religion. This is as relevant in today’s world, as it has ever been. So, while it would be great
to separate discussions on human practices from all kinds of discussions on political, religious,
economic issues, the reality is that they often are linked, desirable or not. In an ideal world,
discussions on human rights issues should maybe be above daily politics, but the fact is that they are
often part of it, and that is doesn’t make sense to pretend otherwise. It would lead to blueprints
made at desks and disconnected to outdoor, hard realities. That reality encapsulates the fact that
states do a lot of windowdressing in the field of human rights, by inserting human rights standards in
constitutions and by ratifying human rights conventions while adding numerous reservations and
understandings, often on very a fundamental level, even against the “object and purpose” of the
relevant convention (as the Vienna Convention on the Law of Treaties orders to avoid). A case in
point is the ratification of human rights conventions by Islamic states, which often insist that the
conventions should not contravene Sharia-law. One can think of the position of women. Some
Muslim states, for instance, have added interpretative declarations and reservations to their
ratification of the Convention on the Elimination of Discrimination against Women. An example is
the perceived incompatibility of the Sharia with Article 16 of CEDAW, which requires that states
“take all appropriate measures to eliminate discrimination against women in all matters relating to
marriage and family relations”. The number of states that have entered reservations to Article 16, in
whole or in part, is so high that the CEDAW Committee has voiced its serious concern. Other
examples of links between human rights debates and political systems, relate to communist-driven
systems; think of weighing the (collective) general interest versus the rights of the individual. 214
Further to all this, it should be kept in mind that sovereign states tend to have a central government,
which is not always (fully) in charge as far as international legal affairs is concerned. One can think of

25
either states like Nigeria with its complex structure of ethnic communities or a state like the USA
with its federal composition and its complex relation to international legal obligations, as has
become clear again in the Avena case before the International Court of Justice, concerning the
application of international (human rights) law in the state of Texas.35 Consider this warning
number four. So, four warnings against easy answers in response to the universality of human rights.
In sum: 1) the huge variety and number of human rights; 2) legal and quasi-legal answers not being
as convincing as they look; 3) states urged to accept human rights terminology (‘standards’) but
hesitant, to say the least, towards outside interference (implementation vs. supervision); 4) frictions
between international legal obligations and national (constitutional) legal characteristics. The 1948
UDHR words are extremely relevant and well-chosen; in the course of time only a few basic concepts
and issues have been added. One can argue that 65 years later: 1) states that violate human rights
are, overall, in a more defensive position than in the late 1940s – in that period the raison d’état and
its complement (the right to violate rights in order to survive as a state) had a much broader content
than is the case these days (consider for instance the Pinochet case or the Statute of the
International Criminal Court); 2) the UN and a range of regional organisations have developed a
variety of human rights protective mechanisms; 3) we are better equipped to differentiate between
parts of the debate purely belonging to the political domain and those issues that can be conducted
in terms of interests transcending the level of state sovereignty.
To conclude Human rights have come a long way, and are often seen as one of the success stories in
the field of international law and international relations since WWII. Despite all controversies on a
conceptual and practical level and despite the need to operate in a way that combines ideals to
multiple senses of reality, there is no doubt that we are in the midst of processes of
constitutionalisation and humanisation of the international economic and political order, with
human rights values leading the way. The core word is ‘universalisation’, constantly looking for a
process approach with an open eye for obstacles. Making human rights universal, means to
contextualise within the margins set at the international level, with a special emphasis on
peremptory standards of international human rights law, and with the use of all available
instruments where possible and indicated, from silent diplomacy to assessments by international
supervisory bodies, and whatever other action that might have a realistic chance to be successful.
That might include actions such as ‘country resolutions’ adopted by the UN Human Rights Council or
even economic sanctions, although such approaches rarely lead to durable solutions. The latter
relates to the fact that they are coercive and often top-down only. The alternative is adding a
bottom-up approach, as presented here, and to fundamentally reconsider the effectiveness of the
mechanisms used so far. In such lines of action, there is a huge role for the civil society (NGOs, local
leaders, companies, trade unions), in order to make the message tailor-made and (more) likely to be
effective in the long run. Such civil society actions should not be conducted by representatives 226
with legal training only, but also by people with a background in, for instance, anthropology, history,
political science, theology and economics. This is vital, in order to make the discussions start from
the right assumptions and to guarantee that the actions are contextualised as much as possible, and
thus have a better chance to change the daily lives of people all over the world. Summary In the 65
years or so since the Universal Declaration of Human Rights was adopted in 1948, there have been
many legal developments in modern human rights law resulting in the emergence of, among other
things, the UN human rights treaty system and the Universal Periodic Review process conducted by
the Human Rights Council. As a result of these accomplishments, human rights are often seen as one
of the success stories in the field of international law and international relations since WWII. When
the Universal Declaration of Human Rights was drafted, it was by and large seen as a self-evident
framework for managing the relationship between state, individuals (and communities), the core

26
goal of the Declaration being the wish to express what ‘human dignity’ is all about. Nowadays
though, many political systems around the world are – either still or again − presenSng a different
view of human rights, including setting totally different priorities in the broad field covered these
days by the term ‘human rights’. Van Genugten issued four warnings concerning the supposed
universality of human rights: (1) The sheer numbers of UN human rights conventions and other
human rights instruments, adopted since 1948, are as such not decisive to state that the human
rights are universally applicable. Each of the instruments deserves close scrutiny, before that
statement can be made. (2) universality is not uniformity – within the frameworks set states have
space to ‘do it their own way’; in addition, the (quasi-) legal input of states in a variety of debates is
often not as clear cut and convincing as it looks at first sight; (3) many states are urged to accept
human rights terminology (‘standards’) but are not willing to accept external control and criticism by
external bodies or independent experts; (4) there are frictions between international legal
obligations and national (constitutional) legal characteristics of states. 227 With these four warnings
in mind, Van Genugten addressed ‘the way forward’: we should aim for a process-like approach. The
buzzword should be ‘universalisation’ rather than ‘universality’ (‘human rights are universal’). A
bottom-up approach is needed to confront those who are politically and legally responsible for
upholding human rights with their obligations and to show them a way forward. It is important to
include here perceptions of local communities, as cultural exceptions are mainly voiced by local
communities as opposed to states that have ratified human rights instruments. Thus, the discussions
on the universality of human rights occur not only between states and international law, but
especially also within sovereign states, between national governments and local communities who
may practice certain cultural rituals which conflict with universal human rights norms. All that has to
be – and can be – done without falling into the trap of cultural relativism. Civil society organisations
can play an important role in communicating these local perceptions and in contextualising some of
these international human rights norms.

27
 6. Explain International Bill of Human Rights

The International Bill of Human Rights.-

The International Bill of Human Rights comprises of the following:
(1) The Universal Declaration of Human Rights, 1948:

(2) The Covenant on Civil and Political Rights, 1966;

(3) The Covenant on Economic, Social and Cultural Rights, 1966;

(4) The Optional Protocol to the Covenant on Civil and Political Rights, 1966.

The keystone of the covenants is the Universal Declaration of Human Rights. Generally they
elaborate on the rights set forth in the Universal Declaration. The International Bill of Human Rights,
a major undertaking which began at the inception of the organisation more than 30 years ago, is
now in effect. It came into force with the coming into force on 2nd March, 1976 of the Covenant on
Civil and Political Right . The other important covenant on Human Rights, the covenant on Economic,
Social and Cultural Rights came into force on 3rd January, 1976. India has also become a party to
these two covenants. These are two legally binding instruments with the Universal Declaration of
Human Rights on which they are based, as well as the Optional Protocol providing machinery for
complaints from individuals, constitute the Bill of Human Rights.
With the coming into force of the International Bill of Human Rights, the view of Oppenheim that
"the degree of enforceability of fundamental Human Rights is still rudimentary" is no more correct.
To conclude in the words of Ian Brownlie: "The Universal Declaration of Human Rights has been
regarded as a preliminary step towards more elaborate formulation of standards in relation to
Human Rights in instruments which would have undoubted legal force as treaties for the parties to
them The nature of the subject-matter is such that even for non-parties the content of the covenant
represent authoritative evidence of the concept of Human Rights as it appear in the Charter of the
United Nations."

The Universal Declaration of Human Rights

In 1948, the General Assembly passed the Universal Declaration of Human Rights. This has been
hailed as a victory of individuals in respect of human rights. There are 30 Articles in Declaration
which describe in detail human rights and fundamental freedoms. For example, Article I provides,
"All human beings are born free and equal in dignity and rights, they are endowed. with reason and
conscience and should act to one another in spirit of brotherhood." There is a controversy in regard
to the legal value of the Universal Declarations of Human Rights. Since, General Assembly's
Resolutions and Declaration are generally recommendatory in nature, the Universal Declaration of
Human Rights is said to have no legal force behind it. It is said that it has moral force behind it which
inspires States and the people to enforce and observe human rights and fundamental freedoms. It
has greatly influenced the practice of States in respect of human rights. Some writers have
expressed the view that the Universal Declaration has now assumed legal value. For example, Dr.
Nagendra Singh, has remarked: " The Declaration, was not a mere resolution of the General
Assembly but a continuation of the Charter and had the dignity of the Charter." This seems to be the
correct view. Another eminent author. Prof. Louis B. Sohn has also remarked that the Declaration

28
"constitutes an authoritative interpretation of the Charter, which is binding upon Members to the
extent that the Charter is binding."

Provisions of the U.N. Declaration on Human Rights

Provisions of the Universal Declaration of Human Rights may be classified into four categories-
General (Articles I and 2); Civil and Political Rights (Articles 3 to 21); Economic. Social and Cultural
Rights (Articles 22 to 27); and Concluding Articles (Articles 28 to 30).

General.
The first article of General Articles i.e. Article I has already been referred above. Article 2 provides
that everyone is entitled to all the rights and freedoms set forth in the Declaration without
distinction of any kind. such as race, colour, sex, language, religion, political or other opinion,
national or social origin. property, birth or other status. No distinction shall be made on the basis of
political, jurisdiction, or international status of the country to which a person belongs .

Civil and Political.

Civil rights include rights such as right to life and liberty (Article 3); Prohibition of slavery and slave
trade (Article 4); Prohibition of Torture and Inhuman Treatment (Article 5); Rights to Equality before
Law and Legal Remedies (Articles 6 to II); Right to Freedom of Movement to leave any country and to
return to his country (Article 13); Right to seek asylum (Article 14); Right to Nationality (Article 15);
Right to own Property (Article 17); Right to Freedom of Thought, Conscience and 'Religion (Article
48); Right to Freedom of Opinion and Expression (Article 19); and Right to Freedom of Peace
Assembly and Association (Articles 20 and 21).

Economic, Social and Cultural Rights.

Economic, Social and Cultural rights include the Right to Social Security (Article 22), Right to Work,
free choice of employment, etc. (Article 23); Right to Education (Article 26); Right to Enjoy Arts and
share in Scientific achievement (Article 27) etc.

Concluding Articles.
These articles recognize that everyone is entitled to a social and international order in which the
rights and freedoms set forth In this Declaration can be fully realized (Article 28) and they stress the
duties and responsibilities which the individual owes to the Community (Article 29). Lastly, Article 30
provides that nothing in the Declaration may be interpreted as implying for any State, group, or
person any right to engage in any activity or to perform any act aimed at the destruction of any of
the rights and freedoms set forth in the Declaration.

The Declaration was originally conceived of as a statement of objectives to be achieved by

Governments and as such, not part of binding law. But now, 54 years later, it is accepted by so many
States that it is considered to be an international standard against which their behaviour is
measured.

International Covenant on Civil and Political Rights, 1966

The International Covenant on Civil and Political Rights, 1966 comprises of 53 Articles divided into VI
Parts. For the convenience of study, these Articles may be classified into following categories :
(a) Preamble

(b) General (Articles 1 to 3 and 5)

(c) Rights in Emergency (Article 4)

(d) Substantive Rights (Articles 6 to 27)

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(e) Implementation or Enforcement Machinery (Articles 28 to 45)
(f) Interpretation or Saving Provision (Articles 46 to 47)

(g) Final or concluding provisions, regarding ratification of accession of the covenant, amendments,
etc.

(a) Preamble.
The keystone of the Covenant on Civil and political Rights, 1966 are the charter provisions
concerning the human rights and the Universal Declaration of Human Rights, 1948, which is rightly
reckoned as the mine from all instruments on human rights have been quarried. That is why
"considering that in accordance with the principles proclaimed in the Charter of the United Nations,
recognition of the inherent dignity and of the equal and inalienable rights of all the members of the
human family is the foundation of freedom, justice and peace in the World," the states parties to the
Covenant recognize "that these derive from the inherent dignity of the human person" and "that in
accordance with the universal declaration of human rights, the ideal of free human beings enjoying
civil and political freedom and freedom from fear and want can only be achieved if conditions are
created whereby everyone may enjoy his civil and political rights, as well as his economic, social and
cultural rights." Moreover, "considering the obligation of States under the Charter of the United
Nations to promote universal respect for, and observance of, human rights and freedoms," and
"realizing that the individual, having duties to other individuals and to the community to which he
belongs, is under a responsibility to strive for the promotion and observation of the rights
recognized in the present covenant," the States parties to the present covenant agreed upon the
article incorporated in the covenant.

(b) General (Articles 1 to 3 and 5).

Articles 1 to 3 and 5 of Part I and Part II of the Covenant are general. Article 1 provides that all
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. All peoples may
for their own ends, freely dispose of their natural wealth and resources without prejudice to any
obligations arising out of international economic co-operation, based upon the principle of natural
benefit and international law. In no case may a person be deprived of its own means of subsistence.
Further, the State parties to the present covenant, including those having responsibility for the
administration of non-self Governing and Trust Territories, shall promote the realization of the right
of self determination, and shall respect that right, in conformity with the provisions of the Charter of
the United Nations.
Though Article 2, which occurs in Part II of the Covenant, each State party to the Covenant
"undertakes to respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as,
race, colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status. Where legislative or other measures do not exist to give effect to the rights
recognized in the Covenant, each State party undertakes to take the necessary steps, in accordance
with its constitutional processes and with provisions of the present Covenant, to adopt such
legislative or other measures, to give effect to the rights. Further, each State party to the Covenant
undertakes:

(a) to ensure that any person whose rights or freedoms recognized in the Covenant are violated shall
have an effective remedy, notwithstanding that the violation has been committed by persons acting
in official capacity ;

30
(b) to ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State and to develop the possibilities of judicial remedy;
(c) to ensure that the competent authorities shall enforce such remedies when granted.

Through Article 3, the State parties to the Covenant undertake to ensure the principle of equal right
of men and women to the enjoyment of all civil and political rights set forth in the Covenant.

Article 5 makes it clear that nothing in the Covenant may be interpreted as implying for any State,
group or person any right to engage in any activity or perform any act aimed at the destruction of
any of the rights and freedoms recognized herein or at their limitation to a greater extent than is
provided for in the present Covenant. Further, there shall be no restriction upon or derogation from
any of the fundamental human rights recognized or existing in any State party to the present
covenant pursuant to law, conventions, regulations or custom on the pretext that the present
Covenant does not recognize such rights or that it recognizes them to a lesser extent.

(c) Civil and Political Rights in Emergency.-

Public Emergency which threatens the life of the nation require emergent or exceptional measures
which may not be normally permissible. Article 4 of the Covenants, therefore, permits the State
parties to take measures, during such emergency provided that the existence of which is officially
proclaimed, derogating from their obligation under the covenant to the extent strictly required by
the exigencies of the situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination on the ground of race, colour,
sex, language, religion or social origin. But it is made clear that this provision will not permit the
State parties to make any derogation from Article 6 (dealing with inherent right to life), Article 7
(Prohibition of torture or cruel, inhuman or degrading treatment or punishment etc.), Article 8
(Paragraphs 1 and 2-dealing with prohibition of slavery, slave trade or servitude), Article 11
(prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation),
Article 15 (Prohibition of punishment on any criminal offence not constituting a criminal offence
under national or international law and post facto laws), Article 16 (recognition everywhere as a
person before law), and Article 18 (dealing with freedom of thought, conscience and religion). It is
further provided that any State Party which avails the right of derogation shall inform other parties
of the covenant of such derogation and reasons thereof and shall also inform the date on which such
derogation is permitted.

(d) Substantive Civil and Political Rights.

Articles 6 to 27 of Part III of the Covenant enumerate specific substantive civil and political rights.
They are:
(i) Right to life (Article 6);

(ii) Prohibition of torture, inhuman or degrading treatment or punishment (Article 7);

(iii) Prohibition of slavery, slavery trade, servitude, forced labour (Article 8);

(iv) Right to liberty and security of person and freedom from arbitrary arrest or detention (Article 9);
(v) Right of all persons deprived of their liberty to be treated with humanity and with respect for the
inherent dignity of the human person (Article 10);
(vi) Prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation
(Article 11 );

31
(vii) Right to liberty of movement and freedom to choose residence and right not to be arbitrarily
deprived of entering his own country (Article 12):

(viii) Freedom of aliens lawfully in the territory of State Party to covenant from arbitrary expulsion
(Article 13);

(ix)Right to equality before the courts and tribunals, right to a fair and public hearing and right of
everyone charged with a criminal offence to be presumed innocent until proved guilty according to
law (Article 14);
(x) Non-retroactive application of criminal law (Article 15);

(xi) Right to be recognized everywhere as a person before the law (Article 16);
(xii) Right of everyone not to be subjected to arbitrary or unlawful interference with his privacy,
family, house or correspondence and freedom from unlawful attacks on his honour and reputation
(Article 17);

(xiii) Freedom of thought, conscience and religion (Article 18);

(xiv) Right to freedom of opinion and expression (Article 19);

(xv) Prohibition of propaganda of war and advocacy of national, racial or religious hatred
constituting incitement to discrimination, hostility or violence (Article 20):
(xvi) Right of peaceful assembly (Article 21 );

(xvii) Right to Freedom of association including the right to form and join trade Unions for the
protection of interests (Article 22);

(xviii) Right to marry and to found a family (Article 23);

(xix) Right of every child to be protected, according to his status as minor or, the part of his family,
society and the State; and the right of every child to acquire a nationality (Article 24);
(xx) Right of every citizen to take part in the conduct of public affairs, to vote and to be selected, and
to have access, on general terms of 'equality', to public service. in his country (Article 25);
(xxi) Equality before law (Article 26); and

(xxii) Right of ethnic, religious or linguistic minorities to enjoy their own culture to profess and
practice their own religion, or to use their own language (Article 27).

The rights set forth in the Covenant on Civil and Political Rights are not absolute and are subject to
limitations. While the formulation of the limitations differs as far as details are concerned from
article to article, the Covenant, by and large, provides that the rights shall not be subject to
restrictions except those specified by law, and those which are necessary to protect national
security, public order, public health or morals, or the rights and freedoms of others. Some of the
rights are not subject to any specific restrictions, for example, the right to freedom of thought,
conscience and relation, as distinct from the right to manifest religion or belief, and the right to hold
opinions without interference, as distinct from the right to freedom of expression. In time of public
emergency which threatens the life of the nation and the existence of which is officially proclaimed,
the State Parties to the Covenant on Civil and Political Rights may make measures derogating from
the obligations under the Covenant to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with other obligations under international law and

32
do not involve discrimination solely on the ground of race, colour, sex, language, religion or social
origin, on the other hand, some of the rights are considered by the Covenant to be so essential that
no derogation from them may be made even in time of public emergency. These rights and the
rights to life, the right not to be subjected to torture or to cruel, inhuman or degrading treatment or
punishment, the prohibition of slavery and servitude, the prohibition of imprisonment merely on the
ground of failure of liability to fulfil a contractual obligation, the principle nulla pena sine lege, the
right of everyone to recognition as a person before the law, and freedom of thought, conscience and
religion."

(e) Implementation or Enforcement Machinery (Articles 28 to 45).

The implementation or enforcement machinery is provided under Part IV of the Covenant. The
Covenant provides for the establishment of an eighteen-member Human Rights Committee. The
Committee performs the function of implementation of the human rights in following ways:
(i) The Reporting procedure

(ii) The Inter-State Communication system (including Conciliation Commission.

(iii) Individual's Communication system.

The last-mentioned measure of implementation, namely, individual's communication system does

not find mention in the Covenant on Civil and Political Rights. It finds mention in optional Protocol.
to the International Covenant on Civil and Political Rights. This measure of enforcement of human
rights is available only to those individuals whose States are parties to the Covenant on Civil and
Political Rights, 1966 as well as optional Protocol to the Covenant on Civil and Political Rights.28
Article 2 of the optional Protocol to the International Covenant on Civil and Political Rights provides
that individuals who claim that any of their rights enumerated in the Covenant have been violated
and who have exhausted all available domestic remedies may submit a written communication to
the Committee for consideration.

(f) Interpretation or Saving Provisions (Articles 46 and 47).

Part V comprising of Articles 46 and 47 deals with interpretation or saving provision. For example
Article 46 provides that nothing in the present Covenant shall be interpreted as impairing the
provisions of the Charter of the United Nations and of the Constitutions of the Specialized Agencies
which define the respective responsibilities of the various organs of the United Nations and the
Specialized Agencies in regard to the matters dealt with in the present Charter. Article 47 further
provides that nothing in the present Covenant shall be interpreted as impairing the inherent right of
all peoples to enjoy and utilize fully and freely their natural wealth and resources.

(g) Final or Concluding Provisions (Articles 48 to 53).

Part VI (comprising of Articles 48 to 53) deals with final or concluding provisions. These provisions
are relating to signature, ratification, accession, etc, of the Covenant by State Parties coming into
force of the Covenant, application amendment to the Covenant, etc.
As noted above, the International Covenant on Civil and Political Rights, which was adopted by the
General Assembly, on December 19, 1966, carne into force on January 3, 1976. At present it has
been subscribed by as many as 165 State Parties. The optional- Protocol carne into force on March
23, 1976 and at present has 113 states parties.

33
International Covenant on Economic, Social and Cultural Rights, 1966: Besides preamble the
International Covenant on Economic, Social and Cultural Rights comprise of 31 Articles divided into
five parts. The substantive economic, social and cultural rights recognized in this covenant are
following:
(i) Right to work freely chosen (Article 6);
(ii) Right to enjoyment of just and favourable conditions of work (Article 7);

(iii) Right to form trade unions and join the trade Union of choice (Article 8);
(iv) Right to social security, including social insurance (Article 9);

(v) Right relating to family, motherhood, childhood and young persons to protection and assistance
and the right of free consent to marriage (Article 10);

(vi) Right to adequate standard of living for himself and his family including adequate food, clothing
and housing, and to the continuous improvement of living conditions (Article 11);

(vii) Right to the enjoyment of the highest attainable standard of physical and mental health (Article
12);
(viii) Right to education including compulsory and free primary education;

(ix) Undertaking to implement the principle of compulsory education free of all within a reasonable
number of years (Article 14); and

(x) Right to: (a) take part in cultural life;

(b) enjoy the benefits of scientific progress and its applications; and

(c) benefit from the protection of the moral and material interests resulting from any scientific,
literary or artistic production of which he is the author (Article 15).

The measures of implementation provided in this covenant are much weaker than those provided in
the Covenant on Civil and Political Rights. They comprise of mainly the reporting procedure. States
Parties of the Covenant on Economic, Social and Cultural Rights have an obligation to submit to the
Secretary-General of the U.N. reports on the measures which they have adopted and the progress
made. The Secretary-General then transmits copies of reports to the Economic and Social Council
(ECOSOC) which in its turn may transmit the reports to the Human Rights Council for study and
general recommendations.
As of 2013, International Covenant on Economic, Social and Cultural Rights, 1966 had 169 parties.
Protocol to this Covenant had 40 parties as of 2013.

Optional Protocol to the International Covenant on Civil and Political Rights, 1966.-
The preamble of the Protocol provides that in order further to achieve the purposes of the Covenant
on Civil and Political Rights and the implementation of its provisions it would be appropriate to
enable the Human Rights Committee set up in Part IV of the Covenant to receive and consider as
provided in the present Protocol. Communications from individual, claiming to be the victims of
violations of any of the rights set forth in the Covenant have agreed to the provisions of the Optional
Protocol.

Article I of the Optional Protocol provides that a State Party to the covenant that becomes a party to
the present Protocol recognizes the competence of the Committee to receive and consider

34
communication from individuals subject to its jurisdiction who claim to be the victims of violation by
that State Party of any rights set forth in the covenant. No communication shall be received by the
Committee if it concerns a State Party to the covenant who is not a party to the Optional Protocol.
As of September 2013, it had 115 parties.

Second Optional Protocol to the International Covenant on Civil and Political Rights (1989).
The Second Optional Protocol was adopted on 15th December, 1989 and entered into force on July
11, 1991. As of July 2013, it had 77 parties.
Article I of the Second Protocol provides that no one within the jurisdiction of a State Party to the
present Protocol shall be executed. Each State Party shall take all necessary steps to abolish death
penalty within its jurisdiction.

Article 6 further provides that the provisions of the present Protocol shall apply as additional
provisions to the covenant.

35
 7. Short Notes
a) Commission on human rights.

U. N. Bodies primarily concerned with Human Rights-

(A) Human Rights Council.

Prior to the present Human Rights Council, there was U.N. Commission on Human Rights which
rendered signal service for the observance and respect for the human rights. By resolution 60/251 of
15 March, 2006, the General Assembly decided to replace the U.N. Commission on Human Rights b-y
47-member Human Rights Council, thus marking the new beginning for human rights promotion and
protection. Before we discuss the Human Rights Council, it will be desirable to briefly discuss its
predecessor, U.N. Commission on Human Rights.

U. N. Commission on Human Rights.

The Commission on Human Rights established by the Economic and Social Council in February, 1946
is lithe nearest approach to permanent machinery for the supervision of the problem of protection
of human rights. It is one of the six Functional Commissions established by the Economic and Social
Council. Under its terms of reference, the Commission was directed to prepare recommendations
and reports on :

(i) an International Bill of Human Rights;

(ii) International conventions or declarations on civil liberties, the status of women, freedom of
information and similar other matters;
(iii) the protection of minorities;

(iv) the prevention of discrimination on the basis of race, sex, language or religion; and
(v) other matters concerning human rights.

The Commission's terms of reference are extensive; under them it may deal with any matter
concerning human rights. The Commission makes studies and recommendations either on its own
initiative or at the request of the General Assembly or by the Economic and Social Council. The
members of the Commission are elected for three years term and meet annually for a period of five
or six weeks. All Commission decisions are made by a majority of the members present and voting.
The Commission submits a report on each session to the Economic and Social Council. Originally the
Commission consisted of 18 members. The membership was increased to 21 in 1962 and to 32 in
1966. Subsequently, the membership was further increased to 43 and then finally to 53. In May
1982, India was re-elected for a new term of three years beginning from January 1,1983.
In order to assist in its work, the Commission has established a number of subsidiary bodies, such as
the Sub-commission on Prevention of Discrimination and Protection of Minorities the Ad Hoc
Committee on Periodic Reports, the Ad Hoc working group of Experts on Human Rights in Southern
Africa and Other Working Groups charged with particular tasks.
The Commission, as per its reference, makes studies, prepares recommendations and drafts
international instruments concerning human rights. It also undertakes special tasks assigned to it by
the General Assembly on the Economic and Social Council, including the investigation of allegations
concerning violations of human rights and the handling of communications relating to such

36
violations. It also co-operates closely with all other United Nations bodies having competence in the
field of human rights.

The Commission receives thousands of private complaints. It transmits them to the Governments
concerned and asks them to reply and comment thereon. It has played an active role in investigating
alleged violence of human rights. The principal functions performed by the Commission have been
the preparation of the texts 'of the Universal Declarations of Human Rights, the Convention on the
Political Rights of Women, draft covenants on Human Rights supplementing the Universal
Declaration. It also publishes Year book on Human Rights. It holds its sessions annually and performs
important functions in the field of human rights.
In view of the important functions performed by Human Rights Commission, Ital and Spain have
proposed in the Special Committee on the Review of charter of the U. N. and on the strengthening of
the role of the organization which held its session from 14th February to 11th March, 1977 in New
York, that the office of the High Commissioner on Human Rights be established. The Special
Committee also proposed that the functions of the Trusteeship Council be expanded to encompass
the task of protecting human rights in general, so that the Council would become a "Human Rights
and Trusteeship Council. This suggestion merits serious consideration because the Trusteeship
Council is one organ which has almost completed its work and it may, therefore, be made more
useful and effective by conferring functions in respect of human rights. It is already empowered to
promote human rights in trusteeship territories. It may be noted that the said proposal regarding the
establishment of the office of the High Commissioner for Human Rights has already been accepted
and implemented but the proposal regarding creation of "Human Rights and Trusteeship Council"
has yet to be accepted. It has also been proposed by Philippine that Human Rights Commission be
elevated to a full Council on a level with Economic and Social Council and the Trusteeship Council.

In its forty-forth Session held in Geneva from 1 February to 11, March, 1988, the Commission called
for the highest priority to be given to completion, probably by 1989, of a comprehensive draft
convention on the rights of the child. In its 45th Session held at Geneva from 30 January to 10
March, 1989, the Human Rights Commission approved 54-article draft convention on the rights of
the child after a decade of negotiations. As a result of this, the General Assembly eventually adopted
on 20 November, 1989 an International Convention on the Rights of Child. In its forty-sixth session
held from 29 January to 9 March, 1990, the Human Rights Commission covered a wide range of
topics, including the consequences of actions by irregular armed forces and drug traffickers, child
abuse, the rights of the victims of Acquired Immuno Deficiency Syndrome (AIDS), and the protection
of rights of many minorities, including indigenous populations and migrant workers. Similarly, in its
forty-seventh Session held from 28 January to 8 March, 1991, the Commission, covered a wide range
of topics including the rights of mentally ill persons, environment related issues, slavery and the sale
of children. The Commission also asked the General Assembly to take steps to launch a Third Decade
to Combat Racial Discrimination to begin in 1993.

In its forty-eighth session held from 27 January to 6, March, 1992, Human Rights Commission
approved two new draft declarations on the rights of persons belonging to national or ethnic,
religious and linguistic 'minorities, and on protection of all persons from enforced disappearance,
The Commission also adopted programme of action for the prevention of the sale of children, child
prostitution and child pornography submitted by its Sub-Commission on the Prevention of
Discrimination and Protection of Minorities, The highlight of the forty-ninth Session of Commission
of Human Rights from 1 February to 12 March, 1993 was the adoption of a Programme of Action for
the Elimination of the Exploitation of Child Labour. The Commission also reviewed specific human
rights situations in more than 20 countries and territories and dealt with alleged violations in

37
Southern Africa and the Middle East. Action was, also taken on Afghanistan, Albania, Cambodia,
China, Cuba, East Timor, EI Salvador, Equatorial Guinea, Georgia, Guatemala, Haiti, Iran, Iraq,
Myanmar, Papua, New Guinea, Romania, Somalia, Sudan, Togo Western Sahara, Former Yugoslavia
and Zaire. In its fiftieth session held from 31 January to 11 March. 1994, the Commission ncountered
both breakthroughs and difficulties in adopting its focus to the “new realities" of a "new era in
Human Rights" that emerged during the landmark World Conference on Human Rights, held at
Vienna in June, 1993. In following up the results of the 1993 World Conference, the Commission
reaffirmed the urgency of eliminating denial and violations of human rights, and decided to review
annually the progress towards full implementation of the Conference's two important documents :
The Vienna Declaration and the Programme Action. In its fifty-first session held from 30 January to
10 March, 1995, the U. N. Commission on Human Rights asked the General Assembly to consider
convening a world conference against " racism, racial and ethnic discrimination, xenopholea and
other related contemporary forms of intolerance." The Commission welcomed regional workshops
on human rights issues held in Asian and Pacific regions. The Commission also welcomed the
establishment of National Human Rights Commissions by India and Indonesia.
The work of the Human Rights Commission in several of its sessions has been indicated above in
capsule form to show the useful work that the Commission has rendered and is still rendering in the
field of human rights. The Commission is the only body which covers wide range of subjects in the
field of human rights and operates in universal scale. Besides its other wide-ranging activities it
receives complaints of violation of human rights from citizens of member-States of United Nations.
Any citizen of a member-State of the United Nations, which has attained near universality, who feels
to be the victim of violation of human rights, can send a petition, even against his own State, to the
Human Rights Commission through the Secretary-General of the United Nations. It transmits such
petitions to Governments concerned for comments. After receiving comments from the respective
Governments, it considers the petition and the comments thereon and makes its recommendations.
Thus the scope of Human Rights Commission is much wider than that the Human Rights Committee
established under the International Covenant on Civil and Political Rights, 1966 and its optional
Protocol, 1966, which is available only to the State parties to the said covenant and its optional
protocol and their citizens. The Commission has already helped millions of the victims of violation of
human rights. To quote only one more example, U. N. Human Rights Commission at its session in
Geneva decided to hold an extra-ordinary session on 23rd September, 1999 to examine killings and
atrocities carried out in East Timor where rampaging Pro-Jakarta militias were believed to have ma
sacred thousand of Timorese following a vote in the territory soundly backing independence from
Indonesia.
The General Assembly decided to replace U. N. Human Rights Commission by Human Rights Council
vide its resolution 60/251 of 15 March, 2006. U. N. Commission on Human Rights was oft n criticized
for its system of election. It was not elected by all members of the General Assembly.

38
 b) Explain Human Rights Council.
As mentioned above, the General Assembly vide its resolution 60/251 of 15 March, 2006 in its 60th
Plenary Session decided to replace the U. N. Commission on Human Rights by 47 member Human
Rights Council theory marking the new beginning for promotion and protection of Human Rights.
Human Rights Council is based in Geneva and like its predecessor, is the subsidiary organ of the U;N.
General Assembly. Its status shall be reviewed by the General Assembly within five years. The
General Assembly also decided that the Council will assume, review and where necessary improve
and rationalize all mandate, mechanisms, functions and responsibilities of its predecessor,
Commission on Human Rights in order to maintain a system of special procedures, expert advice and
complaint procedures. The Council shall complete his review within one year after the holding of its
first session.

It was further decided by the General Assembly that the Council shall consist of 47 member states
which shall be elected directly and individually by secret ballot by the majority of the members of
the General Assembly and the membership of the Council shall be based on equitable distribution
and seats shall be distributed as follows among regional groups:

(1) African Group (13);

(2) Asian Group (13);

(3) Eastern European Group (6);

(4) Latin American and Caribbean Group (8); and

(5) Western European and others Group (7).

The members of the group will serve for a period of three years and shall not be eligible for re-
election after two consecutive years. Membership of the Council shall be open to all the Members of
the U.N. When electing the members of the Council, Member states shall take into account the
contribution of the candidate to the promotions and protection of human rights and their voluntary
pledges and commitments made thereto the General Assembly by a two-third majority of members
present and voting may suspend the rights of membership of the Council of a member of the Council
that commits gross and systematic violations of human rights.
The General Assembly also decided that the Council shall meet regularly throughout the year and
schedule not fewer than three sessions per year, including a main session for a total duration of not
less than ten weeks and shall be able to hold special session when needed, at the request of a
member of the Council with the support of one-third of the membership of the Council.
Further, the General Assembly decided that the methods of the work of the Council shall be
transparent, fair and impartial and enable genuine dialogue, be result oriented, allow subsequent
follow-up discussions to recommendations and their implementations and also allow for
substantious interaction and special procedures and mechanisms.
The General Assembly recommended to the Economic and Social Council to request the Commission
on Human Rights to conclude its work at its sixty-second session and to abolish the same on 16 June,
2006.

As regards the new members of the Council, the General Assembly decided to elect the new
members of the Council. The terms of the membership shall be staggered and such decision will be

39
taken for the first-election by the drawing of lots, taking into consideration equitable geographical
distribution.

As per decision of the General Assembly, the elections of the first members of the Council took place
on 9 May and the first meeting of the Council was convened on 19 June, 2006.

The five groups of States formed for 2006 have already been mentioned.
The groups formed for 2007 were as follows:

(1) African States.-Algeria, Morocco, South Africa and Tunisia.

(2) Asian States.-Balgram, India, Indonesia and Philippines.

(3) Eastern European States.-Czech Republic and Poland.

(4) Latin America and Caribbean States.-Argentina and Ecuador.

(5) Western Europe and other States.-Finland and Netherlands.

The groups formed for 2008 are as follows:

2008Group:
(1) African States.-Gabon, Ghana, Male and Zambia.

(2) Asian States.-Japan, Pakistan and S. Korea.

(3) Eastern European States.-Romania and Ukraine.
(4) Latin America and Caribbean States.-Brazil, Guatemala and Peru.

(5) Western European and other States.-France and U.K.

It may be noted that the Human Rights Council concluded its first session at Geneva on 30th June,
2006. The sessions began on 19th June and during the session the Council adopted a resolution,
three decisions and two statements by the President. On 29th June, 2006 the Council adopted a
landmark treaty to prevent and punish the crime of enforced disappearances estimated to amount
to 40,000 cases from 60 countries. The Council also adopted U.N. Declaration on Rights of
Indigenous Peoples and it was to be forwarded to the General Assembly's September Session.
According to the U.N. Secretary-General, Kofi Annan, "The Council represents a great new chance for
the U.N. and for humanity to renew the struggle for human rights." This statement was made by Kofi
Annan on 19th June, 2006 in his address to first session of the Council.

The United States of America remained outside the Council because it did not seek a seat on the
Council. President George Bush of America took this decision stating that the U.S. would be more
effective from the outside. However, he pledged to support the Council financially.
A spokesman of the U.N. Secretary-General expressed the disappointment over the U.S. step and
hoped that the U.S. would reconsider in 2007.
The new Human Rights Council is more representative and democratic than its predecessor, the U.N.
Commission on Human Rights. In electing the Council's first member, the 193 member General
Assembly followed a procedure that significantly differed from that of the often criticized Human
Rights Commission which was abolished on 16th June, 2006.

40
On 5th March, 2007, the U.S. State Department said that for the second year in a row the U.S.
decided not to seek a seat on the Human Rights Council asserting that the body had lost its
credibility on September, 2007, the U.S. Senate voted to cut off funding to the Council. On June 8,
2008, U.S. announced that the it had withdrawn completely from the U.N. Human Rights Council.

2013 Group:
The replacement for the (2010) group was duly elected by the General Assembly on 13th May, 2010,
known as the (2013) group, the year when terms would expire. They were:
(1) African States.-Angola, Libyan Arab Jamohriya, Mauritania and Uganda.

(2) Asian States.-Malaysia, Maldives, Qatar, Thailand.

(3) Eastern European States.-Poland, Republic of Maldova.

(4) Latin America and Carribbean States.-Ecuador, Guatemala and Peru.

(5) Western European and other States.-Spain and Switzerland.

2014 Group:
The replacement for (2011) group was duly elected by the General Assembly of the U.N. on 20th
May, 2011 known as (2014) group, the year when their terms expire. They are :

1) African States.-Benin, Botswana, Burkina Faso and Congo.

(2) Asian States.-India, Indonesia, Kuwait and Philippines.

(3) Eastern European States.-Czech Republic and Romania.

(4) Latin America and Carribbean States.-Chilc and Costa Rica.

(5) Western European and other States.-Austria and Italy.

2015 Group:
The replacement for the (2012) Group was duly elected by the General Assembly of the U.N. on 12th
November, 2012 known as the Group of 2015, the year when their terms will expire: They are:

(1) African States.-Cote d'lvoire, Gabon, Sierra Leone and Kenya.

(2) Asian States.-Japan, Kazakhstan, Pakistan, Republic of Korea, United Arab Emirates.

(3) Latin America and Caribbean States.-Argentina, Brazil, Venezuela.

(4) Western European and other States.-Germany, Ireland and the United States of America.

Mr. Laura Dupuy Lassesse of Uruguay was the President of the Human Rights Council from 19th
June, 2011 to 9th December, 2012. The next President was Mr. Remuiquiusz Henezel of Poland who
assumed office on 10th December, 2012.

41
 c) United Nations High Commissioner for human rights.

U. N. High Commissioner for Human Rights.

In a landmark decision on 20 December, 1993, the General Assembly created the position of U. N.
High Commissioner for Human Rights by passing a resolution.31 It can be reckoned as a turning
point in U. N. action in the Human Rights. The High Commissioner would be appointed by the
Secretary General for a four-year term subject to the approval by the General Assembly. The High
Commissioner will report, annually to the Commission on human rights and through the Economic
and Social Council to the General Assembly, with a branch office in New York. The High
Commissioner's principal location will be in Geneva, while creating the post of High Commissioner of
Human Rights, the resolutions of the General Assembly specified that for "impartial, objective, non-
selective performance of the duties, the person to be appointed to this august office must be a
"person of high moral standing and personal integrity" and must possess expertise in the human
rights field and an understanding of diverse cultures under the direction and authority of the
Secretary-General, the High Commissioner will "promote and protect the effective enjoyment by all
of all civil, cultural, economic, political and social rights" and "will play an active role in removing the
current obstacles, and in meeting the challenges to the full realization of all human rights" and will
prevent violations throughout the world.
Within two months after the creation of the post of a High Commissioner for Human Rights, the
General Assembly on 14 February, 1994 unanimously approved the appointment of Jose Ayala Lasso
to the new post. A former Foreign Minister of Ecuador, he was his country's permanent
Representative to the U. N. just prior to his appointment. The person holding the post of High.
Commissioner for Human Rights will cost the U. N. 1.47 million dollars in two years. His rank will be
that of an Under-Secretary-General of the U. N. Mr. Jose Ayala La 0 assumed the office of High
Commissioner for Human Rights on April 5, 1994.

The responsibilities of the High Commissioner would include:

(i) strengthening and streamlining existing human rights mechanisms;

(ii) engaging in dialogue with all Governments to secure respect for all human rights.
(iii) coordinating hum 11. rights; promotion and protection activities throughout the UN system,
including UN education and public information programmes;
(iv) supervising the centre for Human Rights;

(v) to promote and protect the effective enjoyment by all of civil, cultural, economic, political and
social rights;
(vi) to play an active role in removing the current obstacles and in meeting the challenges to the full
realization of all human rights;
(vii) to provide advisory service, technical and financial assistance in respect of the human rights to
states at their request, and
(viii) to take steps for the enhancement of international cooperation for the promotion and
protection of human rights.
The creation of the post of High Commissioner for Human Rights has been hailed by the Western
States as their victory. The decision to create this august post could be possible only by a

42
compromise between United States of America and Western States on the one side and the
developing states on the other. While the U. S. and the Western States wanted this post to be a very
strong post having the power to investigate etc. the violation of human rights, the developing states
wanted it to be a weak one so that it may not be able to intervene in the sovereignty of the
individual States and may respect cultural diversity and their right of economic development. The
General Assembly, therefore, adopted a cautious attitude by keeping the powers of the
Commissioner vague and emphasized Universal human rights and rights of economic development.
The High Commissioner for Human Rights cannot compel the Governments the correction of the
misuse of human rights but he can issue reports creating difficulties for them to ensure compliance.
In an interview the first High Commissioner, Jose Ayala Lasso said that the resolution is vague and
has conferred wide powers to High Commissioner. But the mandate charter is limited under the
powers of instruments of human rights, General Assembly, Economic and Social Council, Human
Rights Commission and political rights of the Secretary-General of the United Nations. According to
him, High Commissioner represents the moral voice of humanity. The post has been created because
humanity is much awakened that respect for human rights be given priority.
Since powers of the High Commissioner have been left vague in the resolution, America and
Western States have interpreted it to mean that the High Commissioner has the power to
investigate. On the other hand developing States emphasise that the High Commissioner cannot
interfere with the sovereign rights of the individual member States of the U. N. nor can impose
western ideas of human rights and democracy. Thus different interpretations of the powers of High
Commissioner have been given. It is therefore imperative that the High Commissioner for Human
Rights must proceed cautiously and should endeavour to win the confidence of to governments of
member States. In his first interview before going to Geneva to assume the office, Jose Ayala Lasso
said that one of the main reasons for the violations of human rights is intolerance. Children ought to
be given the education of tolerance. It is desirable to note here that the General Assembly of the
United Nations declared 1995 as the U. N. year of Tolerance. According to Jose Ayala Lasso, we
should state a programme of education of human rights which includes tolerance in thought, act and
simple ways of life tolerance.
It may be noted that Jose Ayala Lasso resigned on March 15, 1997 and was succeeded by Mrs. Mary
Robinson of Ireland who assumed her office on September 15, 1997.
The office of the U.N. High Commissioner for Human Rights (OHCHR) co-ordinates human rights
throughout the U.N. system and supervises Human Rights Council in Geneva, Switzerland. The
current High Commissioner is South African Lawyer Navanethem Pillai, whose four years term began
on 1st September, 2008 and then was extended for additional two years by the General Assembly of
the U.N. on 1st September, 2012.

OHCHR is an ex-officio member of the Committee of the U.N. Development Group.

The mandate of the office of OHCHR derives from Articles 1, 13 and 55 of the Charter of the United
Nations, the Vienna Development Programme of Action and General Assembly resolution 48/141 of
20th December, 1993 by which the Assembly established the post of U.N. High Commissioner for
Human Rights. In connection with the programme for reforms of the U.N. (A/51/1950, para 79), the
office of the U.N. High Commissioner and the Centre for Human Rights were consolidated into a
single office of the U.N. High Commissioner for Human Rights on 15th September, 1997.
According to Pillay, the High Commissioner is the voice of victim everywhere.

43
 UNIT 2

1. What are the human rights provided under the UN Charter?

Explain.

The U. N. Charter and Human Rights.

The Charter of the United Nations represents a significant advancement so far as faith in and respect
for human rights is concerned. The signing of the Charter of the United Nations also marks the
formal recognition that human rights is a matter of international concern. The appalling atrocities
caused by the Nazis on the Jews and other races during the Second World War led to a strong
movement for the international protection of fundamental human rights, and the Charter contains
numerous references to them.' Indeed, with the horrors perpetrated by Nazi and Fascist leaders still
in their minds, the makers of the Charter were determined that the rights of the individual be made
an international concern. "Human rights are mentioned for the first time ........ in any international
treaty (not counting the treaties for the protection of minorities concluded after the First World
War, which related to the rights of special groups but not to human rights in general)-because the
drafters of the Charter were .......... .looking behind the facts of war to its causes, that is to say, to
the existence of dictatorship which makes wars possible.”

The signing of the United Nation Charter which incorporates several provisions concerning human
rights has done much to stimulate the large amount of international human rights which are
respected today. The provisions concerning human rights run throughout the U. N. Charter "like a
golden thread." Much of the credit goes to the determined lobbying by non governmental
organizations at the San Francisco Conference. The delegates of some of the States at the San
Francisco Conference were in favour of the adoption of even stronger provisions concerning human
rights. An attempt, which proved abortive, was also made to incorporate in the U. N. Charter an
International Bill of Human Rights.

(ii) Provisions of the Charter concerning Human Rights.

With the exception of the pursuit of peace, there is no cause why the United Nations is more closely
identified with than the cause of human rights. Concern for human rights is woven into the U. N.
Charter "like a golden thread." Human rights would occupy a significant chapter in any story of the
U. N. Their place in the original conception of the U. N. is underlined and highlighted in the Charter
and there are as many as seven references. They are :

(a) in the preamble;

(b) among purposes of the U. N. (Article 1.3);

(c) among the responsibilities of the General Assembly (Article 55(c));

(d) among the objectives of the International Economic and Social Cooperation (Article 13(2)) set out
in Chapters IX and X;
(e) among the functions of Economic and Social Council (Article 62 (2));

(f) as a responsibility of Economic and Social Council regarding setting up of a Commission for the
promotion of human rights (Article 68);

(g) among the objectives of the Trusteeship System (Article 76 (c)).

44
Each of the above references is being briefly discussed below:
(a) The preamble of the U. N. Charter begins with the words "We the people of the United Nations."
These words are neither superfluous nor have crept in the preamble incidentally. The framers of the
Charter were so serious that they did not rest or stop with the using of these words in the preamble
but went on to give content to these words in numerous provisions concerning human rights,
elimination of colonialism, non-self governing territories, economic and social co-operation etc. In
this context, the words, "We the people of the United Nations" are very meaningful. They indicate
the objections which the framers of the Charter wanted to achieve. After having made this
significant innovation in an international treaty, the preamble further reaffirms, "faith in
fundamental human rights, in the dignity and worth of human person, in the equal rights of men and
women."
(b) Secondly, Article 1 (3) provides that it is one of the purposes of the U.N. "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." Thus Article 1 puts the
promotion of respect for human rights on the same level as the maintenance of international peace
and security as a purpose of the U.N.

(c) Thirdly, it is one of the responsibilities of the General Assembly to initiate studies and make
recommendations for the purpose of "promoting international co-operation in the economic, social,
cultural, education and health fields and assisting in the realization of human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion." The further responsibilities,
functions and powers of the General Assembly are set forth in Chapters IX and X of the Charter.
(d) Fourthly, with a view to the 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 people. Article 55 charges the United Nations to promote "universal
respect for, and observance of human rights and fundamental freedoms for all without distinction as
to race, sex, language or religion". This provision is further strengthened by Article 56 under which
"all members pledge themselves to take joint and separate action in co-operation with the
organization for the achievement of the purposes set forth in Article 55." As pointed out by Ian
Brownlie "As treaty provisions applicable to the organization and its members these prescription are
of paramount importance. Article 55 is perhaps oblique-the United Nations hall promote. However,
Article 56 is stronger and involves the members and the political and judicial organs of the United
Nations have interpreted the provisions as a whole to constitute legal obligations. "11 Thus Articles
55 and 56 bind member States to observe and respect human rights. This view finds support from
the interpretation of these provisions given by the World Court. The International Court of Justice
gave its opinion in the context of the observation of human rights in a territory having an
international status. But as pointed out by Egon Schwelb, the pledge contained in Articles 55 and 56
is of wider significance and is not confined to the observance of human rights in a territory having
international importance.

(e) Fifthly, the Charter of the U. N. has empowered the Economic and Social Council to make
recommendations for the purpose of promoting respect for, and obligation of, human rights and
fundamental freedom for all.

45
(f) Sixthly, the Charter imposes upon the Economic and Social Council to "set up commission in
economic and social fields for the promotion of human rights, and such other commissions as may
be required for the performance of its functions."
(g) Seventhly, one of the basic objectives of the trusteeship in accordance with the purposes of the
U. N. laid down in Article 1 of the Charter shall be "to encourage respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language or religion to encourage
recognition of the interdependence of the peoples of the world."
Thus the provisions of the U. N. Charter concerning human rights provide a foundation and an
impetus for further improvement in the protection of human rights. They indicate the wide
possibilities of the international recognition of human rights. There is, however, a controversy as to
whether the provisions of the Charter concurring human rights create obligation on the members.
Some writers have expressed the view that the "Charter clauses only contain a pious injunction to
co-operate and do not impose any obligations. On the other hand, a number of authors contend that
the charter" imposes upon the members a moral, and however imperfect, probably a legal duty."
This argument seems to be acceptable and justified because" a pledge to co-operate in promoting at
least implies a negative obligation not so to undermine human rights; for this South Africa's racial
segregation policies appear to be out of harmony with her obligation, under the Charter." However,
"The Charter did, of course, greatly weaken the content of the charter clauses, and so an attempt
was made to fill them out by drawing up in 1948 the "Universal Declaration of Human Rights and
Fundamental Freedoms” and with a view to implement the Universal Declaration, European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950) the American
Convention on Human Rights, and African Charter on Human and People's Rights, 1981 and finally
the International Covenants on Human Rights were adopted.

U.N. Bodies primarily concerned with Human Rights

a) Human Rights Council
b) Sub – Commission on prevention of Discrimination and Protection of Minorities.
c) Commission on the status of women.
d) U.N High Commissioner for Human Rights

46
 2. What are the legal effects of the Universal Declaration of
Human Rights? Explain

Influence of the Universal Declaration on National Constitutions, Municipal laws and Court
decisions.
The provisions of the Universal Declaration of Human Rights have influenced various national
constitutions enacted after the adoption of the Universal Declaration. For example, the
Constitutions of Algeria, Burundi, Cameroon, Chad, Democratic Republic of Congo, Dhaomey,
Guniea, Gabon, Ivory Coast, Madagascar, Mali, Mauritiana, Niger, Senegal, Togo and Upper Volta
(when attained independence between 1958 and 1964), the peoples of these countries solemnly
affirmed their devotion to the principles and ideals of the Universal Declaration. The principles and
ideals of Declaration are also found in municipal law in a number of law and decrees enacted in
various countries. The Indian Constitution bears the impact of the Universal Declaration and this has
been recognized by the Supreme Court of India. While referring to the Fundamental Rights
contained in Part III of the Constitution in Kesavanand Bharti v. State of Kerala. Sikri, C. J. of the
Supreme Court observed: "I am unable to hold that these provisions show that some rights are not
natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of
Human Rights and that Declaration describes some fundamental rights as inalienable." In a case,
namely Chairman, Railway Board & others v. Mrs. Chandrima Das and others, the Supreme Court
aptly observed that the International Covenants and Declarations as adopted by the United Nations
have to be respected by all signatory states and the meaning given to the words in such declarations
(for example Universal Declaration and Declaration on the Elimination of Violence against Women)
and covenants have to such as would help in effective implementation of those rights. The
applicability of the Universal Declaration of Human Rights and principles thereof may have to be
read, if need be, into the domestic jurisprudence.t" "Even the Soviet Constitution could not escape
the influence of the Universal Declaration" Chapter 7 of the draft Soviet Constitution contained "the
Basic Rights, Freedoms and Duties of Citizens of the U.S.S.R. "Thus the political rights and freedoms
of the Soviet citizens were "far more comprehensively formulated” in the Constitution.

Legal Significance of the Universal Declaration of Human Rights.

There is a great controversy in regard to the legal significance of the Universal Declaration. On the
one hand, there are those writers who subscribe to the view that the Universal Declaration is not a
legally binding instrument. On the other hand, there are some writers who have expressed the view
that the Declaration might not have been binding when it was adopted in 1948 but it has now
become binding or assumed legal implications. Besides these two views, there are a number of
authors who have expressed the view that although the Universal Declaration is not legally binding
yet it has a great moral and political force behind it and serves as a general guide, code of conduct or
yardstick from which the actions of men and women and nations are judged so far as the respect for
and observance of human rights are concerned.

According to Palmer and Perkins, 50 "the Declaration is merely a statement of principles, not a
legally binding instrument; but it has become one of the best known international documents, and it
has often been referred to in resolutions of the U.N., the Specialized Agencies, regional
arrangements and other international organizations, and in national Constitutions, legislation, and
Court decision. It is a beacon light for all mankind, even though it has been honoured more often in
the breach than in the observance." In the view of Starke, “.. the Declaration could not and did not
purport to be more than manifesto, a statement of ideals, a path-finding instrument" Yet it has had a

47
remarkable influence on further developments, at both the international and domestic levels, as is
reflected in the number of instances of conventions and other instruments referring to, or invoking,
its provisions." Oppenheim also subscribes to this view. According to him, “…the Declaration is not
an instrument which is legally binding either directly or indirectly. In particular, there is no warrant
for assuming that it can properly be resorted to for the-interpretation of the provisions of human
rights and fundamental rights."The ninth edition of Oppenheim's International Law53 adds,
"However, in the years since its adoption, the widespread acceptance of the authority of the
Declaration has led some to the opinion that while the Declaration is an instrument is not a treaty,
its provision may have come to the embodiment of new rules of customary law in the matter." In the
view of Lauterpacht, the moral authority and influence of an international pronouncement of this
nature must be in direct proportion to the degree of sacrifice of the sovereignty of states which it
involves. Most of the writers who subscribe to the view that the Universal Declaration is not a legally
binding instrument, however, concede that it "has gained considerable authority as a general guide
to the content of fundamental rights and freedoms as understood by members of the United
Nations, and it is important as providing a connecting link between different concepts of human
rights in different parts of the world." Ian Brownlie goes a step ahead and writes: "The Declaration is
not a legally binding instrument as such, and some of its provisions depart from existing and
generally accepted rules. Nevertheless some of its provisions either constitute general principles of
law [See the Statute of International Court of Justice, infra, Art. 38 (1) (c)] or represent elementary
considerations of humanity. More important is its status as an authoritative guide produced by the
General Assembly to the interpretation of the Charter. In this capacity, the Declaration has
considerably indirect legal effect and is regarded by the Assembly and by some jurists as a part of
the law of the United Nations. " This observation is significant because it indicates the shift that is
taking place in the view of the writers in respect of the legal value of the Universal Declaration.

Constituting Authoritative Interpretation of Charter and new Rules of Customary International

Law.-
Some writers have expressed that the Universal Declaration possesses legal value. In view of the
significant and revolutionary developments that have taken place in the field of human rights. This
view has gained much ground; it has much to recommend itself and merits serious consideration. In
the view of Judge Nagendra Singh, " The Declaration, therefore, was not mere resolution of the
General Assembly but a continuation of the charters and had the dignity of the Charter. Another
eminent author, Prof. Lois B. John59 has also aptly remarked that "any violation of the Declaration
was the violation of the principles of the Charter". Further, "The Declaration was adopted
unanimously (with 8 abstentions) and thus constitutes the authoritative interpretation of the
Charter, which is binding upon members to the extent the Charter is binding should an organ of the
U.N. find that a particular member has failed to promote the observance of one of the rights listed in
the Declaration such a statement would constitute of finding that the Member has violated Articles
55 and 56 of the Charter."
This interpretation finds support from the 1960 Declaration on the Granting of Independence to
Colonial Countries and Peoples which proclaimed that all States shall "observe faithfully and strictly
the provisions of the Charter of the United Nations, the Universal Declaration on Human Rights and
the present Declaration. It was further confirmed by the 1963 Declarations on the Elimination of All
Forms of Racial Discrimination which provided that Declaration of Human Rights" and the two other
Declarations.
Reference may also be made here to the meeting of unofficial Assembly for Human Rights in
Montreal in March, 1968 which proclaimed that the Universal Declaration of Human Rights

48
constitute an authoritative interpretation of the charter of highest order and has over the years
become part of customary international law. The same conclusion was reached by the official
International Conference on Human Rights, Teheran (April-May, 1968) which proclaim d that the
Universal Declaration "constitutes an obligation for the members of the international community.
This was endorsed by the General Assembly of the U. N. in December, 1968 as an "important and
timely reaffirmation of the principles embodied in the Universal Declaration on Human Rights."
Thus, as remarked by John, "Whatever might have been situation in 1948, the three Declarations
(referred to above including the Universal Declaration] have now become binding documents;
constituting not only authoritative Interpretation of the relevant provisions of the charter but also
new rules of international law binding on all States."

The Universal Declaration which was originally conceived as a Statement of objectives to be

achieved by Government and as such, no part of binding law, has now (53 years later) been accepted
by so many States to be an international standard against which their behaviour is measured. Indeed
the Universal Declaration has become legally binding constituting an authoritative interpretation of
the Charter and as new rules of customary international law binding on all States. To some extent at
least the Declaration has by custom recognised, as laying down rules binding upon States.

49
 3. Bring out the relationship between the international covenant
on civil and political rights and the international covenant on
economic, social and cultural rights?

Relationship Between the Two Covenants.

There is a close relationship between the two Covenants because for both the Covenants the key
source of rights is the Universal Declaration of Human Rights. The preamble of both the Covenants
are the same so is the case with Articles 1, 3 and 5. The preamble of the Civil Covenant recognizes
the need for creation of conditions wherein everyone may enjoy "his civil and political rights as well
as his economic, social and cultural rights." The preamble of the Economic Covenant also recognizes
the same need so that everyone may enjoy "his economic, social and cultural rights, as well as his
civil and political rights." Thus they are supplementary to each other. Human rights and fundamental
freedoms are indivisible. The realisation of civil and political rights is impossible without the
enjoyment of economic, social and cultural rights. This relationship between the civil and political
rights and economic, social and cultural rights contained in the Civil Covenant and the Economic
Covenant respectively Was recognized by the International Conference on Human Rights which was
held from April 22 to May 13, 1968 at Tehran in connection with the observance of the International
year for Human Rights, which .marked the twentieth anniversary of the Universal Declaration of
Human Rights. The Conference was attended by 84 States. The realization of this relationship and
their interdependence was reiterated by the General Assembly in a resolution in 1977. This was
finally affirmed by the Second World Conference on Human Rights held at Vienna from June 14 to
25, 1993. It was in the agenda of the Conference to consider the relationship between development,
democracy and universal enjoyment of all human rights, keeping in view the interrelationship and
indivisibility of economic, social, cultural, civil and political rights.43 The Vienna Declaration adopted
in the conference affirmed that all human rights are universal, indivisible, interdependent and
interrelated. The international community must treat human rights globally in a fair and equal
manner, on the same footing and with the same emphasis. While the significance of the national and
regional particularities and various historical, cultural and religious backgrounds must be borne in
mind, it was the duty of States, regardless of their political, economic and cultural systems to
promote and protect all human rights. Further, democracy, development, and respect for human
rights are interdependent and mutually reinforcing. Democracy is based on the freely expressed will
of the people to determine their political, economic, social and cultural systems, and their full
participation in all aspects of their lives.

50
 4. Short Notes
a) Commission on the status of women under economic and social council
The Commission on the Status of Women is a functional Commission of the Economic and Social
Council (ECOSOC) established by the Council in 1946. The functions of the Commission are:

(a) to prepare recommendations and reports to the ECOSOC on promotion of women's rights in
political, economic, civil, social and educational fields; and

(b) to make recommendations to the Council on urgent problems requiring immediate attention in
the field of women's rights with the object of implementing the principle that men and women shall
have equal rights and to develop proposals to give effect to such recommendations. Originally the
Commission on the Status of Women was composed of 15 members. Subsequently the membership
was increased to 21 and then to 32 and finally to 45. Thus at present the Commission is composed of
45 representative of U. N. members elected by the ECOSOC for three-year term. It meets bienially or
session of three weeks. As in the case of Commission on Human Rights, the Commission on the
Status of Women adopts its own resolutions and recommends draft resolutions and declarations for
adoption by the ECOSOC. The Commission submits a report on each session to the Council.
The Commission on the Status of Women has done valuable work for promoting the rights of
women in political, economic, civil, social and educational fields and in achieving the goal of women
having rights equal to those of men. In the Nairobi World Conference to Review and Appraise the
Achievements of the United Nations Decade for Women: Equality Development and Peace (1976-
1985), the goal was set in the adoption of the "Forward-looking Strategies for the Advancement of
Women to the year 2000." In its thirty-third session which was held at Vienna from 29 March to 7
April, 1989, the Commission stressed that something drastic must be done to revive a flagging
campaign for women's advancement because there was sufficient evidence to indicate that
advances towards women's economic and political rights were slowing or had actually stopped.
Unless something was done, the achievement of goal of century by the end of the century, only 11
years way was at risk. The 32 member Commission also adopted 23 texts on wide variety of subjects
such as AIDS, aging, refugee and displaced women, poverty and apartheid and sent the drafts for
final approval to the ECOSOC. In its thirty-seventh session held at Vienna from 17 March to 26
March, 1993, the Commission on status of Women unanimously approved a draft declaration on the
elimination of violence against women. This declaration, which was submitted to the forty-eighth
session of the General Assembly for adoption ' stated that violence against women is an obstacle to
the achievement of equality, development and peace-the three main goals of the U. N. to advance
the status of women. It may be noted here that earlier in November, 1991 meeting U. N. Expert
Group had proposed a draft Declaration on Violence Against Women to be considered by the
Commission on the Status of Women in 1992. Thus it was for the first time explicitly the issue of
physical, sexual and psychological violence against women was addressed. It was also proposed that
if necessary an optional protocol to the 1979 Convention on the Elimination of All Forms of
Discrimination Against Women be adopted.

In its thirty-seventh session the Commission urged the Fourth World Conference on Women, held in
China's capital city of Beijing, in September, 1995 to consider women's rights and concerns. As
regards its role in monitoring the implementation of the 1985 forward-looking Strategies for the
Advancement of Women to the Year 2000, the Commission called on states parties to All Forms of
Discrimination against Women to consider their reservations to the Commission also called for the
improvement of women's status in the U. N. Secretariat and asked States to identify and submit
more women candidates for high level posts.

51
In its thirty-eighth session held at New York from 7 to 18 March, 1994, the Commission considered
the issues, such as, equal pay for work of equal value, women in urban areas and measures to
eradicate violence against women. The Commission being also the preparatory body for the Fourth
World Conference on Women in Beijing 1995 the Commission's work focused on preparatory
activities, in particular the drafting of the Platform for Action.
At its thirty-ninth session held at New York from 15 March to 7 April, 1995, the Commission on the
Status of Women, met as the preparatory body of the World Conference on Women Beijing, China,
(4-15 September, 1995) and considered final details for the draft Platform for Action. The draft that
emerged as a blueprint for women's advancement throughout the world identified 12 critical areas
of concerns related to the impact on women. They are: poverty; education; health; violence; armed
conflict, economic disparity; power sharing, and decision making; mechanisms to promote the
advancement of women; human rights; the media; the environment; and the situation of girls. The
global framework contained in the draft document stated: "Evidence of the increasing fragility of
peace, the environment and the institutions that govern society has prompted the international
community to search for alternative paths to development and security. The participation and
leadership of the half of humanity that is female is essential to the success of that search. Therefore,
nothing short of a radical transformation, of the relationships between men and women will enable
the world to meet the challenges of the new millennium." The draft document added that United
Nations is no exception. "Fifty years after its creation, the United Nations continues to deny itself the
benefits of women's leadership by their under representation at decision-making levels within the
secretariat and the specialized agencies." So is the case of the member States of the U. N. in general.
In 1993, only six women around the world occupied the office of the head of Government and only 6
out of the 184 ambassadors to the U. N. are women.

Every year the representatives of the member States assemble at U.N. Headquarters in New York to
evaluate progress on gender equality, identity, challenges, set global standards and formulate
concrete policies to promote gender equality and advancement of women all over the world. U.N.
Commission on the Status of Women (UNCSW) is one of the Commissions of the U.N. that do not
limit participation of Non-Government Organisation (NGOs). Thus NGOs are allowed to participate in
sessions of UNCSW and attend meetings of caucus and panels and attend their own parallel events
through the NGO Committee on the Status of Women.
UNCSW consists of 45 member States elected by Ute Council on the basis of equitable graphical
distribution which is as follows:
Africa: 13

Asia: 11
Latin America & Carribbean : 9

Western Europe & other States: 8

Eastern Europe: 4

Members are elected for a period of four years. Among its activities, the UNCSW drafted several
Conventions and declarations including the Declaration on the Elimination of Discrimination against
women in 1967 and women focussed agencies such as UNIFEM and INSTRW. In its 57th session of
March 2013, Commission's priority theme was announced as elimination and prevention of all forms
of violation against women and girls. Prior to that an Expert Group Meeting (EGM) on prevention of
violence against women and girls was held in Bangkok from 17 to 20 September, 2012.

52
It may be noted Shareefah Hamid Ali of India is also one of the 15 original members.

b) Human Rights and Art 2(7) of U.N. Charter

Human Rights and Domestic Jurisdiction.

Article 2(7): Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any state or shall
require the Members to submit such matters to settlement under the present Charter; but this
principle shall not prejudice the application of enforcement measures under Chapter VII.

One of the problems that arises in the implementation of the human rights programme is the
question of domestic jurisdiction. This is because of Article 2 (7) of the U. N. Charter which prohibits
the U. N. "to intervene in matters which are essentially within the domestic jurisdiction of any State"
nor the U. N. "shall require the Members to submit such matters to settlement under the present
Charter." Some authors have expressed the view that the prohibition contained in Article 2(7) of the
Charter reduces to minimum the protection of human rights on the part of the U. N. But this does
not seem to be correct view. The better view is that the question of domestic jurisdiction does not
arise in the implementation of provisions of the charter concerning human rights. In any case, the
question of domestic jurisdiction does not arise in the case of implementation of the provisions of
Human Rights Covenants. It may be noted that the domestic and international aspects are closely
interwoven. Almost every problem that concerns international relations must come within the
domestic boundaries of one nation and may cross over into another and create an international
problem. Therefore, a matter is not essentially one of the domestic jurisdictions if it has become the
subject of international obligation undertaken by the State. Human Rights and fundamental
freedoms, having become the subject of a solemn international obligation and a fundamental
purpose of the Charter are not any longer a matter which is essentially within domestic jurisdiction
of the members of the United Nations.

There was a time, about five decades ago, when a State had sovereign and absolute powers over its
subjects. It could treat its subjects any way it liked; it could even torture its subjects or cause
atrocities and no other State could interfere in its internal matters. But much water has flown since
then. The establishment of the U. N.; inclusion of provisions concerning human rights in the Charter;
adoption of the Universal Declaration of Human Rights; implementation of the Universal declaration
by Regional Conventions such as European Convention on Human Rights, American Convention on
Human Rights; adoption of International Covenants on Human Rights, establishment of U. N. Human
Rights Commission etc. have brought about revolutionary changes. It is now universally recognized
that there are certain limitations of State's powers over treatment of its subjects. If a citizen of a
member-State of the U. N. feels victim of the violation of human rights, he or she can send a petition
even against his or her own State to the U. N. Commission on Human Rights through the Secretary-
General of the United Nations. It is thus recognized that human rights have become a matter of
international concern and a matter which has become a matter of international concern cannot be
said to be a matter essentially within the domestic jurisdiction of a State.

It may also be noted that Article 2(7) of the Charter which contains the prohibition in respect of
domestic jurisdiction also provides an exception in respect of the application of enforcement
measures under Chapter VII of the Charter. Thus if violations of human rights give rise to a dispute or

53
situation which poses a threat to international peace and security, the Security Council may take
enforcement measures under Chapter VII. The Security Council has taken such actions in South
Africa (1977), Iraq (1991), Somalia (1992) and Rwanda (1994). But it has been rightly pointed out,
"the organization will act, as many resolutions particularly in matters to Southern Africa, even if
there is no threat to the peace. In such cases the plea of domestic jurisdiction under Article 2(7) of
the Charter has been no obstacle. In the prevailing view, gross violations of human rights are not
'essentially within the domestic jurisdiction' of States, nor it would seem, are actions, which the U.
N. has taken 'intervention' in the technical legal sense."

c) Promotion and Protection of Human Rights by the United Nations

Promotion and encouragement of respect for and observance of human rights and fundamental
freedoms is one of the purposes of the United Nations. The Charter of United Nations mentions the
term, "promotion of Concept of Human Rights human rights" seven times, but makes no reference
to "protection of human rights". A question arises how this purpose is achieved by the United
Nations? It is to be noted that the role and scope of U.N. action m promoting and protection human
rights have tremendously increased in the last sixty years.

The term 'promotion of human rights' may mean setting of international standard of human rights,
education and dissemination. The prime responsibility for the promotion of human rights under the
U.N. Charter rests in the General Assembly, in the Economic and Social Council and its subsidiary
body-Human Rights Council. The General Assembly by adopting treaties has set standards and
socializes into those standards, Holding conferences and seminars to spread the world about human
rights values found in these international documents are also included in the promotion of human
rights.
The term 'protection of human rights' which may mean implementation and enforcement action
does not find place in the U.N. Charter. Among the United Nations agencies only the Security Council
and the International Court of Justice can engage in enforcement action; only they have a
competence to pass a binding resolution or issue a binding judgment. The Security Council can
threaten or vote sanctions' in relation to its own previous actions or that of the Court. Enforcement
is thus the authoritative application of human rights. All other actions beyond promotion but short
of enforcement may be considered as implementation efforts. Implementation thus includes passing
non-binding resolutions about specific problems or States. When a U.N. agency approves a
resolution calling on a specific State to take specific human rights action, it is considered to generate
political pressure on the target and thus an effort at protection, and not just promotion." The United
Nations in the past has been able to promote and protect human rights by a number of ways which
are as follows :

(1) Human Rights Consciousness

The first and the most important role which the United Nations has played is that it has made the
people and the States conscious about the human rights and fundamental freedoms. It has set a
pace in establishing minimum standards of acceptable behaviour by States. The proclamation of the
Universal Declaration of Human Rights containing the universal code of human rights may be
regarded as the first step towards the promotion and protection of human rights.

(2) Codification of the Law of Human Rights

54
The United Nations has codified the different rights and freedoms by making treaties for all sections
of the people such as women, child, migrant workers, refugees and stateless persons.' In addition to
the above, the prohibition on the commission of inhuman acts such as genocide, apartheid, racial
discrimination and torture have been brought within the international rule of law.

(3) Monitoring of Human Rights

Treaty bodies, Special Rapporteurs and Working Groups" of the Commission on Human Rights have
procedure and mechanism to monitor compliance with conventions and investigate allegations of
human rights abuses. A number of expert committees have been established under particular
treaties. They are not subsidiary organs of the United Nations, but are autonomous. The Committees
are termed "U.N. Treaty Organs". Their resolutions on specific cases carry a moral weight that few
Governments are willing to defy. In the past, U.N. Human Rights monitors have been sent to many
countries including EI Slavador and Cambodia. Human Rights monitors have also been deployed by
the General Assembly as part of peace-keeping operations in Haiti, Rwanda, Guatemala and the
former Yugoslavia.

(4) Procedure for Individual's Complaints

A number of human rights treaties permit individuals to make petition before the appropriate
international bodies. For instance, the Optional Protocol to the International Covenant on Civil and
Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination,
Convention Against Torture, Convention on the Elimination of Discrimination Against Women and
the Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families have permitted individuals to make petitions against their States that have accepted
relevant international legal procedures. Also, under procedures established by the Human Rights
Council, Sub-Commission on the Promotion and Protection of Human Rights (earlier known as Sub-
Commission on Prevention of Discrimination and Protection of Minorities) and their Working
Groups, hear numerous complaints annually submitted by individuals as well as by non-
governmental organisations (NGOs). The Human Rights Council is authorized to discuss human rights
situations anywhere in the World and examine information from individuals, NGOs and other
sources.
The Economic and Social Council in 1970 adopted Resolution 1503 entitled 'Procedure for Dealing
with Communications Relating to Violations of Human Rights and Fundamental Freedoms',
commonly known as '1503 Resolution' wherein individuals and non-governmental organisations
(NGO)s were allowed to make a communication to the Commission concerning "situations which
appear to reveal a consistent pattern of gross and reliably attested violations of human rights.'" A
communication i.e., a complaint is sent to the Office of the UN High Commissioner for Human Rights
in Geneva. The Commission has focused the 1503 procedure mainly on civil and political rights using
rapporteurs and Working Groups in specific countries and specific problems.
It is to be noted that individual petitions help to provide some check on governmental violations of
human rights by giving international organisations a source of information.

(5) Compilation of Information on the Violations of Human Rights

The original mandate of the Commission on Human Rights to examine situations where massive
violations of rights appear to be taking place has been complemented by a new function, i.e.,
compiling information on the incidence of certain kinds of violations, or violation in a specific
country. This task is performed by Special Rapporteurs/Representative or Working Groups. They
gather facts, keep contacts with local groups and government authorities, conduct on-site visits

55
when Governments permit, and make recommendation on how human rights institutions might be
strengthened.

(6) Examination of Human Rights Situations

The Commission on Human Rights may ask the Secretary-General to intervene or send an expert to
examine a human rights situation in any State with a view to prevent flagrant violations. Such tasks
may be performed by the Secretary-General himself in the exercise of his good offices and may
establish the U.N.'s legitimate concern and curb abuses. The Secretary-General or his special
representative and the High Commissioner for Human Rights, confidentially raise human rights
concerns with member States, including items such as the release of prisoners, commutation of
death sentences and other issues.

(7) Coordination of Human Rights Activities

The post of High Commissioner for Human Rights was created in 1993 with the intention of
strengthening the coordination and impact of UN Human Rights activities. He is charged with
promoting and protecting the effective enjoyment by all of all human rights and maintaining a
permanent dialogue with the member States.
(8) By Providing Advisory Services
The Centre for Human Rights provides advisory services to Governments seeking to improve their
human rights performance. Assistance may be given to draft a Constitution, to improve electoral
laws, establish or upgrade human rights institutions, prepare new criminal codes, or overhaul the
judiciary.
The above points go to prove that the United Nations has been performing a variety of functions
successfully to promote and protect human rights and it has promoted global culture of human
rights through education and awareness. Human rights which was regarded as a matter of domestic
jurisdiction of the States, has acquired the international character, vis-a-vis, international human
rights. It is appropriate to call international human rights because firstly, human rights is increasingly
a well established issue area of international politics; secondly, States are increasingly obligated to
respect human rights norms, and thirdly, individuals have increasingly obtained legal personality, in
the form of partial subjectivity, with regard to human rights matters. However, it has to be conceded
that the impact of the U.N. activities on international human rights issues has been indirect and it
has long term effect. 'All of its promotion efforts and most of its protection attempts entail
considerable time to have an impact. The result is that human rights continue to be widely violated
around the globe. Fundamental rights of individual's life, liberty and physical security, right to health,
housing and work as well as cultural rights continue to be threatened by forces of repression, ethnic
hatred and exploitation. Torture, cruel and inhuman punishment for seemingly minor crimes to
spousal and child abuse have led to the disruption of societies and ethnic, religious and other
conflicts. In the face of these challenges, the United Nations has to be more active. It has to
intervene in cases of massive human rights violations. It has to work with the cooperation of the
member States to strengthen the commitments of promoting and protecting human rights.

d) Amnesty International
Amnesty International is a non-Governmental organization. It is commonly known as 'Amnesty' or
'AI.' It was founded in London following the publication of the article, "The Forgotten Prisoners" in
The Observer dated 28th May, 1961 by a lawyer, Peter Benenson. It was formally founded in July,

56
1967 by Peter Benenson with global Headquarters. Its International Secretariat is in London, United
Kingdom. It is focussed on human rights and protection thereof. Its General Secretary is Salil Shetty.
Its service is protection of human rights and as such stated objects of the organization is to conduct
research and generate action and to end grave abuse of human rights and to demand justice for
those persons whose rights have been violated.
Amnesty International is credited with drawing attention to human rights abuses and campaigns for
compliance with international laws and set standards. It works to mobilize public opinion to put
pressure on governments which are allegedly responsible for letting abuse take place.

Amnesty International has a long history, recognition and name in the field of of human rights. It is
famous for setting standards for the movement as a whole for protection of human rights. Amnesty
International is a. very famous non-governmental organization with more than three million
members and supporters around the world. The methods adopted by it are media attention, direct
appeal, research, lobbying etc. Its motto is 'better to light a candle than to curse the darkness'.

Principles and Vision

The core principle of Amnesty International is focussed on prisoners of conscience, that is, those
persons are imprisoned or prevented from expressing any opinion other than violence. Amnesty
International is opposed to repression of freedom of expression. Its founding principle includes non-
intervention on political questions and strong commitment to prevent and end abuse of human
rights and demand justice for those persons whose rights have been violated.
According to Statute of Amnesty International, 27th International Council Meeting, 2005:
"Amnesty International's vision is of a world in which every person enjoys all of the human rights
enshrined in Universal Declaration of Human Rights and other International Human Rights
standards.

In pursuit of this vision, Amnesty International's mission is to undertake research and action
focussed on preventing and ending abuses of the rights to physical and mental integrity, freedom of
conscience and expression, and freedom from discrimination, within the context of its work to
promote all human rights".

Organisation
International Council.
At the top of the organization of Amnesty International is International Council which is led by a
Chairperson. Members of sections and structures are entitled to appoint one or more
representatives to the Council in accordance with their size of their membership. International
Council may invite representatives from International networks and structures to its meetings. But
they have no right to vote. Only representatives from sections and structures have voting rights. The
International Council appoints internal governing bodies. These internal governing bodies remain
accountable to the International Council. The International Council determines the direction of
movements. It convenes its sessions every two years.

The International Executive Committee

The next body is the International Executive Committee (IEC). It is led by a Chairperson. IEC consists
of eight members and IEC treasurer. The IEC is elected by and represents the International Council

57
(AI). It is empowered to take decisions on behalf of AI and implements the strategy laid down by
International Council. The IEC also ensures compliance with the statutes of the organizations.

International Secretariat
The responsibility of the International Secretariat is to conduct daily affairs of Amnesty International
under the direction of the International Executive Committee. There are approximately 500
professional staff members. It is headed by a Secretary-General. The International Secretariat
operates several work programmes regarding International Law and organizations, research,
campaigns, mobilization, communication etc. Its offices have been located in London since its
establishment.
From 2001 to 2010, Secretary-General of the IEC was Irene Khan. From 2010, the Secretary-General
is Salil Shetty.

Funding.
A unique and significant feature of funding of Amnesty International is that it does not accept
donations from government organizations. It is largely financed by fees and donations from its
world-wide membership. This allows the Amnesty to maintain full independence from any and all
governments, political ideologies, economic interests or religion. As per website of Amnesty
International, it is able to stand firm and unwavering in its defence of universal and indivisible
human rights.

Works of Amnesty International

The primary target of Amnesty International is governments but it also reports of non-governmental
bodies and private individuals. Amnesty International deals with following six key areas:

(1) Rights of women, children, minorities and indigenous persons;

(2) Ending Torture;

(3) Abolition of Death Penalty;

(4) Rights of Refugees;

(5) Rights of Persons of Conscience; and

(6) Protection of Human dignity.

As noted above, the stated objects of Amnesty International is to prevent and end grave abuse of
human rights and to demand justice for those persons whose rights have been violated. For
example, recently, it has focussed its attention to grave human rights violations in Syria. A recent
and new report by Amnesty International has revealed that war crimes and crimes against humanity
have been carried out on Palestinians and Syrian civilians in Yamouk, an outskirts of Damascus
(Syria) which is under brutal siege by Syrian Government. AI has reported that rampant malnutrition
has already claimed 128 lives in Yamouk district of Syrian capital Damascus with upto 20,000 people
still under siege.

In respect of Ukraine also Amnesty International has reported that journalists, activists and peaceful
protestors are facing increasing harassment and intimidation in Cremea. Amnesty International has,
therefore, advocated that there is an urgent need for a strong international monitoring mission in
Ukraine.

Recently, Amnesty International has criticized the Philippine Government for allegedly failing to
crack down on torture committed by its security forces against detained persons. In its letter to the

58
U.N. Human Rights Council, Amnesty International wrote, "Impunity for torture and other ill-
treatment remains a critical human rights problem in the Philippine".

Recently, a student was shot dead and more than 100 protestors were arrested at Khartoum. On
12th March, 2014, Amnesty International said the Sudanese Security forces must immediately stop
the use of excessive and unlawful force against protesters.
Thus Amnesty International keeps a watch over entire world and does its best to prevent and end
grave abuse of human rights and demand justice for those whose rights have been violated.

Work of Amnesty International in India

As in other parts of the world, Amnesty International is active in India also and works to ensure the
respect for human rights and observation thereof. Wherever it finds grave abuse or violation of
human rights it raises its voice either by direct appeal or by raising the matter before the
appropriate international human rights bodies or organizations.

Amnesty International advocates abolition of death penalty all over the world. Therefore in February
2014, Amnesty International said commutation of Rajiv Gandhi's killers-Perarevian, Murugan and
Santhan-is an encouraging decision especially in view of landmark relief in January, 2014 to
commute 15 death sentences in India.
Amnesty International's Press Release of 21st February, 2014 said that Government of India ought to
provide more detailed information about the circumstances of deaths on it national in Gulf, i.e.
Qatar and other Gulf countries.

Similarly, on 24th February, 2014, Amnesty International criticized ban on public screening of 'No
Fire Zone' because it violates right to free speech. The documentary film, "No Fire Zone" was refused
Certificate for theatrical release. According to Amnesty, it was a set back to freedom of speech. The
film "No Fire Zone" was screened privately in 2013. This film exposes atrocities committed during
the final month of Sri Lankan war in 2009. This was the third production on the subject by the film-
maker, Callum Macrae who had produced the award winning films, "Sri Lanka's Killing Fields" and
"War Crimes Unpunished".
In another news flash, Amnesty International said that International Community must act on a
robust new U.N. report which calls for International investigation on alleged human rights violations
and war crimes in Sri Lanka.

Last but not the least, Amnesty International highlighted the arrest of Prashant Ram, a journalist and
human rights activist on 1st September, 2013 on suspicion of having links with a banned
organization. Prashant Rahi has complained that he was tortured in police custody. He was allegedly
tortured while being in pre-trial detention in Nagpur Central Jail in Maharashtra awaiting trial.

Criticism and Conclusion

Amnesty International is the only non-governmental organization whose reach is so wide as to
covers the entire world. Its aim is not only to prevent and end grave abuse of human rights but also
to demand justice for those persons whose rights have be n violated. Amnesty International can
rather be better described as a global movement fighting injustices and promoting human rights. In
the field of human rights Amnesty International has a long and broadest name and recognition. It is
believed by many to set standards for the movement as a whole. Its decision is not to accept
donations from governmental organizations allows it to remain independent and impartial.

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But even Amnesty International with all good features as discussed above has criticism from some
quarters. It has been criticized for excessive pay for management, under protection of overseas staff
and associated with a dubious record of human right. It is also criticized for selection bias,
ideological/foreign policy bias against either non-western countries or western supported countries.
Besides this, it is subjected to criticism for its policies relating to abortion. In western circles,
Amnesty International is criticized for its policies relating to countries such as Canada, China, Congo,
Saudi Arabia, Vietnam, Russia and the United States of America. They allege and criticize Amnesty
International for its one-sided reporting or/and failure to treat threats to security as a mitigating
factor. As of February, 2011, there has been a dispute between British Union and Amnesty
International over former's foreign based worker's rights. Being a non-governmental organization,
there is no legal sanction behind actions of Amnesty International.
Despite the above noted criticism and short-comings, it has to be admitted that Amnesty
International has rendered signal service for the cause of human rights all over the world. Admitting
that its actions have no legal sanction, yet its actions go a long way to create public opinion. Public
opinion once gets momentum which can unsettle even established governments. Even strong and
well established governments cannot ignore public opinion. Glaring recent examples of the power of
public opinion and its impact is uprooting of several governments in middle East.
It may, therefore, be concluded that even though a non-governmental organization, Amnesty
International has rendered a signal service in the field of human rights. Its motto that 'It is better to
light a candle than to curse the darkness' and its vision of ' ... a world in which every person enjoys
all the human rights enshrined in Universal Declaration of Human Rights and other International
human rights standards" are really praiseworthy. Amnesty International has done much to achieve
these goals. Public opinion is very important in the field of human rights and Amnesty International
has rendered signal service for creating public opinion favour of protection of human rights and
observation thereof.

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 UNIT 3

1. Describe the Rights enshrined in the American Convention on

Human Rights

The Ninth Pan-American Conference in 1948 adopted in American Declaration on the Rights and
Duties of Man laid down the duties as well as the rights of the individual citizens. Later, in 1959 in a
meeting of Consultation of the American Ministers for Foreign Affairs created (within the framework
of the Organization of American States (OAS), the Inter-American Commission on Human Rights,
which has since undertaken important investigative activities concerning human rights activities' in
the American States. Finally the American Convention was adopted in the Inter-American Specialized
Conference on Human Rights held at San Jose, Costa Rica in November, 1969, and was signed on
November 22, 1969, the last day of the Conference. The Convention came into force on July 11,
1978. The Convention so called 'Pact of San Jose de Costa Rica' has been ratified by 21 of the 32
members of the Organisation of American States.
The Preamble of the Convention stated that the essential rights of man are not derived from one's
being a national of a certain State, but are based upon attributes of the human personality, and they
therefore, justify international protection in the form of a Convention reinforcing complementing
the protection provided by the domestic law of the American States.

Civil and Political Rights

The Convention stipulated a number of civil and political rights, for all persons subject to the
jurisdiction of the States Parties which are as follows :

1. Right to judicial personality (Article 3).

2. Right to life from the moment of conception (Article 4)

3. Right to human treatment (Article 5).

4. Freedom from slavery and involuntary servitude (Article 6).

5. Right to personal freedom (Article 7).

6. Right to fair trial (Article 8).

7. Freedom from ex post facto laws (Article 9).

8. Right to compensation for miscarriage of justice (Article 10).

9. Right to privacy (Article 11).

10. Freedom of conscience and religion (Article 12).

11. Freedom of thought and expression (Article 13).

12. Right to reply (Article 14).

13. Right of assembly (Article 15).

14. Right to freedom of association (Article 16).

15. Rights of the family (Article 17).

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16. Right to a name (Article 18).
17. Rights of the child (Article 19).

18. Right to nationality (Article 20)

19. Right to property (Article 21).

20. Freedom of movement and residence (Article 22).

21. Right to participate in government (Article 23).

22. Right to equal protection before the law (Article 24); and
23. Right to judicial protection (Article 25).

The States Parties to the Convention undertake to respect the above rights and freedoms and to
ensure to all persons subject to their jurisdiction the free and full exercise of these rights and
freedoms without any discrimination for reasons of race, colour, sex, language, religion, political or
other opinion, national or social origin, economic status, birth or any other conditions.

The above rights and freedoms may be suspended in time of war, public danger, or other emergency
that threatens the independence and security of a State Party. In such situations, a State may take
measures derogating from its obligations to the extent and for the period of time strictly required by
the exigencies of the situation, provided that such measures are not inconsistent with other
obligations under international law and do not involve discrimination on the ground of race, colour,
sex, language, religion or social origin. However, certain rights shall not be suspended even in the
above situations, which are, right to judicial personality (Article 3); right to life (Article 4); freedom
from torture (Article 5); freedom from slavery (Article 6); freedom from ex-post facto laws (Article
9); rights of the family (Article 17); right to a name (Article 18); rights of the child (Article 19); right to
nationality (Article 20) and right to participate in government (Article 23). A State Party availing itself
of the right of suspension shall immediately inform the other States Parties through the Secretary-
General of the Organisation of American States, of the provisions and the application of which it has
suspended, the reasons that gave rise to the suspension, and the date set for the termination of
such suspension."
The American Convention on Human Rights, unlike the European Convention, stipulated certain
personal responsibilities of persons under Article 32. The Convention stated under Para 1 of the
above Article that every person has responsibilities to his family, his community, and mankind. Para
2 stipulates that rights of each person are limited by the rights of others by the security of all, and by
just demands of the general welfare in a democratic society.

Protocol to Abolish Death Penalty

Article 4 of the American Convention on Human Rights has recognised the right to life and restrict
the application of death penalty. Para 2 of the above Article laid down inter alia that it may be
imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent
Court and in accordance with a law establishing such punishment, enacted prior to the commission
of the crime. Para 3 of Article 4 of the Convention stipulated that death p tl 11 ot be re-established
in States that have abolished it.
The States parties to the American Convention on Human Rights, in order to abolish the death
penalty, concluded a Protocol in 1990 to Abolish the Death Penalty. Article 1 of the Protocol
expressly provided that the States Parties shall not apply the death penalty in their territories to any

62
person subject to their jurisdiction. The Protocol also provided that no reservation may be made in
this regard. However, at the time of ratification or accession of the Protocol, the States Parties may
declare that they reserve the right to apply the death penalty in wartime in accordance with
international law, for extremely serious crimes of a military nature. The States Parties making such
reservations are required to notify the Secretary-General of the American States of the b inning or
end of any state of war in effect in its territory.

Inter-American Convention to Prevent and Punish Torture (1985)

Although Article 5 Para 2 of the American Convention on Human Rights clearly stipulated that no
one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment, the
American States in order to elaborate the above right considered themselves necessary to conclude
a Convention that prevents and punishes torture. Accordingly in 1985 a Convention known as
American Convention to Prevent and Punish torture was adopted.
The Convention defined the term "torture" under Article 2 as any act intentionally performed
whereby physical or mental pain or suffering is implied on a person for purposes of criminal
investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a
penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a
person intended to obliterate the personality of the victim or to diminish his physical or mental
capacities, even if they do not cause physical pain or mental anguish. The States Parties shall take
effective measures to prevent and punish torture within their jurisdiction. They shall also take
effective measures to prevent and punish other cruel, inhuman or degrading treatment or
punishment within their jurisdiction.

Economic, Cultural and Social Rights

As to economic, social. and cultural rights, the American Convention under Article 26 simply
stipulated that the States Parties undertake to adopt measures, both internally and through
international co-operation, especially those of an economic and technical nature, with a view to
achieving progressively, by legislation or other appropriate means, the full realization of the rights
implicit in the economic, social, educational, and cultural standards set forth in the Charter of the
Organization of American States as amended by the Protocol of Buenos Aires.
However, States Parties to the American Convention on Human Rights in 1988 concluded an
Additional Protocol to the American Convention on Human Rights in the area of economic, social
and cultural Rights in San Salvador, commonly called Protocol of San Salvador wherein a number of
economic, social and cultural rights were provided which are as follows :-
(1) Right to work (Article 6).

(2) Just equitable and satisfactory conditions of work (Article 7).

(3) Trade Union rights (Article 8).

(4) Right to social security (Article 9).

(5) Right to health (Article 10).

(6) Right to healthy environment (Article 11).

(7) Right to food (Article 12).

(8) Right to education (Article 13).

(9) Right to benefits of culture (Article 14).

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(10) Right to the formation and the protection of families (Article 15).
(11) Rights of Children (Article 16).

(12) Protection of the elderly (Article 17).

(13) Protection of the handicapped (Article 18).

States Parties to the Additional Protocol are not bound to provide these rights to the individuals,
however, they undertake to adopt the necessary measures, both domestically and through
international cooperation, especially economic and technical, to the extent allowed by their
available resources, and taking into account their degree of development. Article 2 provides that in
those States rights provided in the Additional Protocol are not guaranteed by legislative or other
provisions, they undertake to adopt, in accordance with their constitutional processes, such
legislative or other measures as may be necessary for making those rights a reality.
The Convention also provided implementation machinery consisting of Inter-American Commission
on Human Rights and the Inter-American Court of Human Rights.

64
 2. State the functions of American Commission and American
Court of Human Rights.

Implementation of the Convention.

The American Convention on Human Rights, 1969, provides for two specialized enforcement
mechanism or as Article 33 of the American Convention provides they are organs having
"competence with respect to matters relating to the fulfilment of the commitments made by the
State Parties to this Convention." –

(i) Inter American Commission of Human Rights; and

(ii) Inter American Court of Human Rights.

(i) Inter American Commission of Human Rights.

The Commission is head quartered at the OAS in Washington, D. C. The Commission consists of
seven members who are persons of high moral character and recognized competence in the field of
human rights. They are elected by the General Assembly of the OAS from a list of candidates
nominated by the governments of the member-States. They serve in their individual capacity and
not as the representatives of their member States.
The main functions of the Commission are to promote respect for observance of human rights. The
functions of the Commission include : developing an awareness of human rights among the peoples
of State Parties; receiving and considering petitions and other communications and to submit annual
report to the General Assembly of the OAS, requesting the government of the member States to
furnish measures adopted by thein to give effect to the Convention rendering of advisory opinions
making recommendations to the governments of member States to adopt progressive measure of
human right in their domestic law and constitutional provisions and also to take appropriate
measures to ensure observance of human rights; and preparing studies and reports.
The Commission may receive petitions from any person or group of persons, or any non-
governmental entity legally recognized in one or more member States containing denunciations or
complaints of violation of the Convention. It may also receive a complaint from a State Party alleging
that another State Party has committed a violation of human rights set out in the Convention. But
such a procedure is optional. This is subject to the condition that a State Party which alleges that
another State Party is violating human rights recognized under the Convention must have made a
declaration recognizing the competence of the Commission to receive such complaints and the State
Party against which complaint is made must have also made a similar declaration. Moreover, a
complaint is considered to be admissible, only if it fulfils certain further conditions. In the first place,
before making the complaint domestic remedies must have been exhausted. Secondly, the
complaint must have been made within six months of the date of the alleged violation was noticed
or final judgment. Thirdly, a petition on the same subject must not have been pending before any
other international procedure for settlement. Fourthly, the complaint or communication must not
be anonymous or written in offensive language. Fifthly, it must not be the same complaint which
was previously studied by the Commission. Sixthly and lastly, it must not be incompatible with the
provisions of the Statute, the Regulations are obviously unfounded or referring to events or situation
having no bearing to a violation or disregard of human rights by the Government against which it is
made.

65
After a petition is received, the Commission may request the government concerned, i.e., State
against which complaint is made, to furnish information within a reasonable period. After the receipt
of the information the Commission considers the complaint to take a decision as to whether grounds
for the complaint exist. If it decides in negative, the matter is closed. In case, however, the decision
is in affirmative, the Commission proceeds to examine the matter so as to verify the facts. For this
propose, the Commission may conduct an investigation and may also ask the States concerned to
furnish all requisite facilities.
The main object of the Commission is to secure a friendly settlement. If a friendly settlement is
made the Commission draws up a brief statement of the facts and the solution arrived at. In case
such a friendly settlement is not made, the Commission draws up a report containing the facts and
its conclusions. Then the report is transmitted to the States concerned. If within three months from
the date of the transmission of the said report the matter is not settled or is not submitted to, the
court either by the Commission or the States concerned, the Commission may, by votes of an
absolute majority of its members draw up a report setting forth its opinion and conclusions on the
question submitted for its consideration. The Commission may also make recommendations to the
State Party to take measures to remedy the situation within a prescribed period. The matter does
not end here. After the expiry of said prescribed period, the Commission takes a decision, by the
votes of an absolute majority of its members, as to whether the State concerned has taken adequate
measures to remedy the situation.

A perusal of the above discussion shows that. the Inter-American Commission on Human Rights
performs two main functions :

(i) the general educative function, i.e., to develop an awareness of human rights among the people
of America; and

(ii) the administrative-cum-judicial functions, namely, to make recommendations to the

governments of Member States, to prepare studies and reports, making requesting governments to
furnish information, rendering advisory services, considering and deciding individual petitions and to
submit annual reports to the General Assembly.

(ii) Inter-American Court of Human Rights.

The Inter-American Court of

Human Rights is not accessible to individuals. Again, like its European, Counterpart, the Inter-
American Court is accessible only to the Inter-American Commission and to those State Parties who
have expressly recognized its jurisdiction. The Inter-American Court consists of seven judges who are
jurists of the highest moral authority of recognized competence in the field of human rights and are
qualified for the appointment to the highest judicial office of the State. They ought to be nationals of
the member States of the OAS and are elected in their individual capacity. But no two judges can be
the nationals of the same State. They are elected for a period of six years and can be re-elected only
once. The quorum of the Court is five judges. The Commission has to appear in all cases brought
before the Court.
The Court has two types of jurisdictions-Article 61 of the American Convention provides that only
the State Parties and the Commission shall have the right to submit a case to the court
(i) Contentious and

(ii) advisory.

66
The contentious jurisdiction is optional. For availing this jurisdiction of the Court a State Party while
ratifying or adhering to the Convention has to make a declaration recognizing as binding the
jurisdiction of the Court on all matters concerning the interpretation or application of the
Convention.In addition to ratifying the Convention, a State party must voluntary submit to the
Court's jurisdiction for it to be competent to have a case involving that State. Acceptance of
contentious jurisdiction can be given on a blanket basis. So far, Argentina, Bolivia, Brazil, Chile,
Colombia, Costa Rica, Dominican Republic, Ecuador, EI Salvador, Guatemala, Haiti, Honduras,
Mexico, Panama, Paraguay, Peru, Suriname, Uruguay, Venezuela have done so. Alternatively, a State
can abide by the Court's jurisdiction in a specific individual cases.
Under the American Convention, cases can be referred to Court either by the Inter-American
Commission on Human Rights or State Party. In contrast to the European Human Rights system,
citizens of OAS are not allowed to take cases directly to the Court.
For individuals to have access to the Courts, following conditions must be met:

(1) Individuals who believe that their rights have been violated must first lodge a complaint with the
Commission and have the body rule on the admissibility of the claim.
(2) If the case is ruled as admissible and the State is deemed to have faulted, the Commission will
generally serve the State with recommendations to make amends to the violation.
(3) Only if the State fails to abide by the said recommendations, or if the commission decides that
the case is of particular importance or legal interest, then the case will be referred to the Court.

(4) Thus the presentation of a case to the Court can therefore be considered a measure of last resort
taken only after the Commission failed to resolve the matter in a non-contentious famous.

The powers of the Court are much wider than its European counterpart. Cases before the Court may
result in order for compensatory damages, permanent or temporary injunctive relief or both. If the
Court arrives at a decision that there has been a violation of the rights or freedoms recognized by
the Convention, it can order that the injured party be ensured the enjoyment of his right or freedom
that was violated and in appropriate cases can order that violation of such right or freedom be
remedied and fair compensation be given to the injured party.

The State Parties have undertaken to comply with the judgment of the Court in any case to which
they are parties.43 The judgment of the Court is "final and not subject to appeal." However, the
Court lacks the power to enforce its judgments and preliminary rulings and has to rely mainly on the
OAS General Assembly. The Court may submit annual report to the General Assembly of the OAS
specifying the particular cases in which its judgments have not been complied with by State Parties
and may make its recommendations.45 The Court has so far decided only a few cases.

In Velasquez Rodriguez Cases.46-Regarding the detention and disappearance of a Honduran student

the Court decided that the Honduran Government was responsible for violation of Articles 4, 5 and 7
of the Convention and therefore Honduras was liable to pay compensation to the student's family.
To name only a few cases decided in 2013, they are-I- v. Peru, Preliminary objection, Merits and
Reparation (Judgment of November 27, 2013; case of Osoria Rivera and Family v. Peru, Preliminary
objection, Merits, Reparation of costs (Judgment of November 26, 2013); case of Garcia Cruz and
Sanchez Silvestre v. Mexico, Merits, Reparation of costs (Judgment of November, 26, 2013, series
No. 273); and case of Pacheco Timre and Family v. Bolivia, Preliminary objection, Merits, Reparation

67
of costs (Judgment of November 25, 2013, Series No. 271). These cases are simply illustrative and by
no means exhausted. The Court has decided a large number of such cases.

Inter-American Court of Human Rights possesses advisory jurisdiction also. Member States of the
OAS or certain Inter-American organs including the Commission may consult the Court with regard
to the interpretation of the Convention or other treaties relating to protection of human rights in the
American States. At the request of any such State the Court may give advisory opinion regarding the
compatibility of its domestic laws with such international instruments. Though the Court decided
only a few contentious cases, it has given some advisory opinions. It has given some important
advisory opinions having important bearing upon the interpretation of the Convention. For example,
in its advisory opinion on Effect of Reservations on Entry into Force of the American Convention, the
Inter-American Court was requested to give its advisory opinion on the question: "From what
moment is a State deemed to have become a party to the American Convention on Human Rights
when it ratifies or adheres to the Convention with one or more reservations : from the date of the
deposit of instrument of ratification or adherence or upon the termination of the period specified in
Article 20 of the Vienna Convention on the Law of Treaties?" While giving its advisory opinion the
Court emphasized that modern rights treaties in general, and the American Convention in particular
are not multilateral treaties of the traditional type concluded to accomplish exchange of rights for
the benefit of the contracting parties. Their object and purpose is the protection of the basic rights
of individual human beings, irrespective of their nationality, both against the State of their
nationality and all other Contracting States. In concluding these human rights treaties, the States can
be deemed to submit themselves to a legal order which they, for the common good, assume various
obligations, not in relation to other States, but towards all individuals within their jurisdiction.
The Court further emphasized that the Convention, unlike other international human rights treaties,
including the European Convention, confers on private parties the right to file a petition with the
Commission against any State as soon as it has ratified the Convention (Art. 44 of the Convention).
By contrast, before one State may institute proceedings against another State, each of them must
have accepted the Commission's jurisdiction to deal with inter-State communications (Art. 45). This
structure indicates the overriding importance the Convention attaches to the commitments of State
Parties, vis-a-vis indiuiduals, which can be readily implemented without intervention of any other
State.
In view of the above observations, the Court concluded that viewed in this light and considering that
the Convention was designed to protect the basic rights of individual human beings irrespective of
their nationality, against States of their own nationality or any other State Party, the Convention
must be seen for what in reality it is a multilateral legal instrument or framework enabling States to
make binding unilateral commitments not to violate the human rights of individuals within their
jurisdiction. The Court finally held unanimously that "the Convention enters into force for a State
which relieves or adheres to it with or without reservation on the date of the deposit of its
instrument of ratification or adherence."
In its advisory opinion on Restrictions to the Death Penalty,49 the Inter-American Court of Human
Rights was requested by the Inter-American Commission to interpret Article 4 (right to life) of the
Convention invoking Article 64 (1) thereof. While rendering an advisory Advisory Opinion, the court
made certain observations about the advisory jurisdiction conferred on the Court by the American
Convention. The Court observed that the advisory jurisdiction conferred on the Court by Article 64 of
the Convention is unique in contemporary international law. Neither the International Court of
Justice nor the European Court of Human Rights has been granted the extensive advisory jurisdiction
which the Convention confers on the Inter-American Court. The Court emphasized that the

68
Convention by permitting Member States and OAS organs to seek advisory opinions, creates a
parallel system to that provided for under Article 62 and offers an alternative judicial method of a
consultative nature, which is designed to assist States and organs to comply with and apply human
rights treaties without subjecting them to the formalism and sanctions associated with the
contentions of judicial process. It would, therefore, be inconsistent with the object and purpose of
the Convention and the relevant individual provisions, to adopt an interpretation of Article 64 that
would apply to the jurisdictional requirements of Article 62 and thus rule out of its intended utility
merely because of the possible existence of a dispute regarding the meaning of the provisions at
issue in the request.

Some of important Advisory opinions of Inter American Court of Human Rights

(I) The Right to Information on Consular Assistance in the Framework of the Guarantee of Due
Process of Law [Advisory opinion, OC-1699 of October 1, 1999].-
On December 9, 1997, the United Mexican State sought an advisory opinion on several treaties
concerning the protection of human rights in the American States. The application concerned the
issue of minimum judicial guarantee and the requirement of due process when a Court sentences
death to foreign nations whom the host State has not informed of their right" to communicate with
and seek assistance from the consular authorities of the State of which they are nationals. They had
been sentenced to death-in-ten States in the United States of America.

Before rendering an advisory opinion, the Court first decides whether it has jurisdiction. In this case,
Court unanimously decided that it has jurisdiction.
Further, the Court unanimously decided:

(1) That Article 36 of the Vienna Convention on Consular Relations confers rights upon detained
foreign nationals, among them the right to information on Consular assistance, and that said rights
carry with them corelative obligations for the host State.
(2) That Article 36 of the Vienna Convention on Consular Relations concerns the protection of the
rights of a national of the sending State is a part of the body of international law.
(3) That the expression "without delay" in Article 36 (1) (b) of the Vienna Convention on Consular
Relations means the State must comply with its duty to inform the detainee of the rights that article
confers upon him, at the time of his arrest on at least before he make statement before the
authorities.
(4) That the enforceability of the rights that Article 36 of the Vienna Convention confers upon the
individual is not subject to the protests of the sending State.
(5) That Articles 2, 6, 14 and 50 of the International Covenant on Civil and Political Rights concern
the protection of human rights in. American States.
(6) That the individual's rights to information established in Article 36 (l)(b) of the Vienna Convention
on Consular Relations allows the right to the due process of law recognized in Article 14 of
International Covenant on Civil and Political Rights to have practical effects in concrete cases; Article
14 establishes minimum guarantees that can be amplified in the light of other international
instruments such as the Vienna Convention on Consular Relations which expand the "scope of the
protection to the accused"
(7) By 6 votes to 1, the Court decided:

69
The failure to observe a detailed foreign national's right to information recognised 36 (1) (b) of the
Vienna Convention on Consular Relations is prejudicial to the due process of law, and, in such
circumstances, imposition of death penalty is a violation of the right not to be deprived of life
"arbitrarily" as stipulated in the relevant provisions of human rights treaties (e.g. American
Convention on Human Rights, Article 4; International Covenant on Civil and Political Rights, Article
6), with the juridical consequences that a violation of this nature carries, in other words those
pertaining to. States' international responsibility.
(8) Lastly, the Court unanimously decided that the international provisions that concern the
protection of human rights in the American States, including the right recognized in Article 36 (1) (b)
of the Vienna Convention on Consular Relations, must be respective Conventions, regardless of
whether there is a federal or unitary structure.

(II) International Responsibility for the Promulgation and Enforcement of Laws in violation of
Articles 1 and 2 of American Convention on Human Rights [Advisory opinion OC 14/94 of
December 1994, Series A No. 14] :

This advisory opinion was requested by the Inter-American Commission on Human Rights. After
finding that it had the jurisdiction, the Court delivered the following opinion by a unanimous vote:

(1) That the promulgation of a law in manifest conflict with the obligations assumed by a State upon
ratifying or adhering to the Convention is a violation of that treaty. Furthermore, it gives rise to
international responsibility for the State in question.

(2) That enforcement by agents or officials of a State of a law that manifestly violated the
Convention gives rise to international responsibility for the State in question. If the enforcement of
law as such constitutes an international crime, it will also subject the agents or officials who execute
that law to international responsibility.

(III) Exception to the Exhaustion of Domestic Remedies [Arts 46 (1), 46 (2) (a) and Art. 46 (2) of
American Convention on Human Rights]-[Advisory opinion, OC-11/90 of August 10, 1990, Series A
No. 11]
This advisory opinion was also requested by Inter-American Commission on Human Rights. The
Court expressed its opinion unanimously as follows-
(1) That if his indigency or a general fear in the legal community to represent him to prevent a
complainant before the Commission from invoking the domestic remedies necessary to protect a
right guaranteed by Convention, he is not required to exhaust such remedies.

(2) That if a State Party has proved that domestic remedies are available, the complainant must
demonstrate that the exceptions contemplated in Article 46 (2) apply and that he was prevented
from obtaining the legal counsel necessary for the protection of rights guaranteed by the
Convention.

70
 3. Describe the Rights enshrined in the European Convention on
Human Rights

[As Amended by Protocol Nos. 3,5,8 and 11]

The European Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter referred as "ECHR") was signed at Rome on November 1950. It entered into force in
September, 1953. There are 22 parties to it. They are: Austria, Belgium, Cyprus, Denmark, France,
Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, the Netherlands,
Norway, Portugal, San Marino, Spain, Sweden, Switzerland, Turkey and the United Kingdom. A State
to become a party of ECHR must be a member of Council of Europe. Eleven Protocols to ECHR have
also been signed, either, adding the rights recognized in convention or amending the convention. For
example, Protocol I, which was signed on March 20, 1952 and entered into force on May 18, 1954,
adds certain new rights such as right to peaceful enjoyment of one's possessions, and right to
education. It also includes an undertaking of the State Parties to hold free elections at reasonable
intervals by a secret ballot, under conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature. Protocol II which was signed on May 6, 1963 and carne
into force on September 21, 1970, enabled the Court of Human Rights to give advisory opinion at the
request of Committee of Ministers on legal question with regard to the interpretation of ECHR and
Protocols. Protocol II, which was signed on May 6, 1963 and came into force on September 22, 1970,
amended certain articles, namely, Articles 29, 30 and 34 of ECHR. Protocol IV was signed on
September 16, 1963 and entered into force on May 2, 1969. It added certain rights such as
i)no person can be expelled from a State of which he/she is a national,

(ii) Right to choose residence and liberty of movement and

(iii) right not to be imprisoned for failure to pay debts.

Having been signed on January 20, 1966 and come into force Protocol V amended the Convention
regarding procedure of election of members of the Commission and the Court. Protocol VI, which
came into force in March 1985, abolished death penalty except in respect of acts committed in time
of war or of imminent threat of war. Article 1 of the Sixth Protocol (1983) provides that the death
penalty shall be abolished. No one shall be condemned to such penalty or executed. Article 2 of the
Protocol provides that a State may make provision in its law for the death penalty in respect of acts
committed in times of war or imminent threat of war. Such penalty shall be applied only in the
instances laid down by the law and in accordance with its provisions. The State shall communicate to
the Secretary of the Council of Europe the relevant provisions of that law. The Protocol does not
permit any reservation on derogation born this provision.
Protocol VII to the ECHR, which entered force on November 1,1988 added the right of review of a
conviction by a higher court (Art. 2) Article 3 of the Protocol provides for compensation for wrongful
conviction. The principle of 'double jeopardy' has been incorporated in Article 4. Protocol VIII, which
came into force on January 1, 1990, enabled the Commission to set up Chambers or Committees.
Protocol IX came into force on October 1, 1994 allows individual applications to refer cases to Court
under certain conditions. Protocol X having been signed on March 25, 1992 amended Article 32, para
1 by deletion of the words "of two-thirds" therefrom. That is to say, no matter shall be decided by
the Committee of Ministers by simple majority instead of two-thirds majority as was earlier
provided. Lastly, Protocol XI, which was signed on May 11, 1994 made several changes to improve

71
the implementing machinery so as to enhance its efficiency for the protection and observation of
human rights. Thus the Convention has been amended several times by above-mentioned Protocols
adding the rights recognized in the Convention, enabling the European Court of Human Rights to
give advisory opinions on matters relating to interpretation of the convention and allowing use of
special chambers abolishing the death penalty and providing certain procedural safeguards for
expulsion of aliens thereby improving the procedural efficiency of the European Commission on
Human Rights. The European Convention comprises of 66 Articles, divided into five Sections.

Rights and Freedoms Recognized under ECHR.

Under Article 1 of the Convention (i.e. ECHR) the State Parties to the Convention undertake to
secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the
Convention. Thereafter Section 1 enlists and defines the following rights and freedoms :-
(1) Right to life. (Art. 2)

(2) Freedom from torture or inhuman or degrading treatment or punishment. (Art. 3)

(3) Freedom from slavery or servitude. (Art. 4, para 1)

(4) Freedom from forced or compulsory labour. (Art. 4, para 2).

(5) Rights to liberty and security of person (Article 5, para 1) including right of arrested person to be
informed of the reasons of his arrest and of any charge against him (Art. 5, para 2), to be brought
before a judge and to be entitled to trial within reasonable time (Art. 5, para 3) and right to victims
of arrest or detention in contravention of the provisions of this article to an enforceable right to
compensation. (Art. 5, para 5).
(6) Right to a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law (Art 6, para 1) including presumption of innocence of a person charged
with a criminal offence until proved guilty according to law (Art. 6 para 2) and certain specified
minimum rights of everyone charged with a criminal offence (Art. 6 para 3).
(7) Non-retroactive application of criminal law under national or international law. (Art. 7).

(8) Right to respect for private and family life, home and correspondence (Art. 8, para 1).
(9) Right to freedom of thought, conscience and religion including freedom to change religion or
belief, and freedom either alone or in community with others and public or private, to manifest
religion or belief, in worship, teaching, practice and observance subject only, to the interest of public
safety, for the protection of public order, health or morals, or for the protection of the rights and
freedoms of others. (Art. 9).

(10) Right to freedom of expression including freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless of frontier. (Art. 10,
para 1).
(11) Right to freedom of peaceful assembly and to freedom of association with others, including the
right to form and to join trade unions for the protection of his interests (Art. 11, para 1).
(12) Right of men and women of marriageable age to marry and to found a family, according to the
national laws governing the exercise of this right. (Art. 12).
(13) Right to have an effective remedy before a national authority against violations of rights and
freedoms set forth in this Convention (Art. 13).

72
(14) Right of every natural or legal person to the peaceful enjoyment of his possessions (Art 1,
Protocol 1).

(15) Right to education (Art. 2, Protocol 1).

(16) Right to have free elections at reasonable intervals by secret ballot under conditions which will
ensure the free expression of the opinion of the people in the choice of the legislature, (Art. 3,
Protocol I):

(17) Right not to be expelled from a State of which a person is a national. (Art. 3, Protocol 4).
(18) Freedom from collective expulsion from a State (Art. 4, Protocol IV).

(19) Abolition of death Penalty. (Art 7, Protocol 6).

(20) Right of review of a conviction by a higher court (Art. 2, Protocol 7).

It is made clear in Article 14 of ECHR that the enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground, such as, sex, race, colour,
language, religion, political or other opinion, national or social origin, association with a national
minority, property, birth or other status. Article 15, para 1 provides that in time of war or public
emergency threatening the life of the nation any High Contracting Party may take measures
derogating from its obligations under this Convention to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent with its other
obligations under international law. But under this provision no derogation shall be permissible from
Article 2, except in case of death resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1)
and 7. (Article 15, para 2). Moreover, any State Party availing itself of this right of derogation is
required to keep the Secretary-General of the Council of Europe fully informed of the measures
which it has taken and the reasons therefor. It shall also inform the Secretary-General of the Council
of Europe when such measures have ceased to operate and the provisions of the Convention are
being fully executed (Art. 15, para 3). Last but not the least, Article 16 provides that nothing in
Articles 10 (right to freedom of expression); right to freedom of peaceful assembly and freedom of
association) and 14 (non-discrimination including on the ground of national or social origin in the
enjoyment of rights and freedoms set forth in the Convention) shall be regarded as preventing, the
High Contracting Parties from imposing restrictions on the political activity of aliens. That is to say,
despite the provisions of Articles 10, 11 and 14, State Parties to the Convention can impose
restrictions on the political activity of aliens.
It may be noted that ECHR was drafted long before the International Covenant on Human Rights. It
contains only civil and political rights. Even in respect of civil and political rights there are certain
rights which are contained in the International Covenant on Civil and Political Rights, such as, the
right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation, (Art.
11), right of everyone to be recognized everywhere as a person before the law (Art. 16), right of
every child to acquire a nationality (Art. 24), and prohibition of propaganda of war and any advocacy
of national, racial or religious hatred that constitutes to discrimination, hostility or violence (Art. 20)
but these rights are conspicuous by their absence from the ECHR. In other words, the International
Covenant on Civil and Political Rights is more exhaustive in the enumeration of civil and political
rights than the ECHR. '
As noted above certain Protocols to the European Convention on Human " Rights(1950) have been
adopted. These Protocols have added certain rights to those contained in the Convention. For
example, First Protocol (1952) has added the right of protection of property (Article 1, Protocol 1),

73
right to education (Article 2, Protocol 1), and right to free elections (Article 3, Protocol 1). Fourth
Protocol (1963) has added prohibition of imprisonment for debt (Article 1, Protocol 4), freedom of
movement (Article 2, Protocol 4), prohibition of expulsion of nationals (Article 3, Protocol 4) and
prohibition of collective expulsion of aliens (Article 4, Protocol 4). Sixth Protocol (1983) provided for
the abolition of the death penalty (Article 1, Protocol 6). Last but not the least, Seventh Protocol
(1984) provided for procedural safeguards relating to expulsion of aliens (Article 1, Protocol 7), right
of appeal in criminal matters (Article 2, Protocol 7), compensation for wrongful conviction (Article 3,
Protocol 7), right not to be treated or punished twice (Article 4, Protocol 7) and equality between
spouses (Article 5, Protocol 7).

74
 4. State the functions of European Commission and European
Court of Human Rights.

Implementation of the Rights and Freedoms recognized in ECHR.

The implementation of the European Convention can be divided into two parts namely,
[i] the old system; and

[ii] present system.

(1) The old system.-

Under the old system which lasted up to 31st October, 1998,' there -were two institutions for the
implementation of the provisions of the Convention. They were-
(1) A European Commission of Human Rights;

(2) A European Court of Human Rights.

The old system continued up to 31st October, 1998. Protocol XI of the European Convention
abolished the European Commission of Human Rights. The provisions relating to the Commission
were deleted. The provisions of Commission being referred below are old provisions and being
referred only for academic purpose. "'

(1) European Commission of Human Rights.

The Commission consisted of a number of members equal to that of the High Contracting Parties but
no two members of the Commission could be the nationals of the same State. The member of the
Commission" were elected by the Committee of Ministers of the Council of Europe, by an absolute
majority of votes, from a list of names driven "up by the Bureau of the Assembly. The members of
the Commission were elected for a period of six years." They were entitled for re-elections. The
members were to sit in their individual capacity." The election was so managed as to relieve half of
the members every three years.

The Commission received inter-State Communications as well as individual Communications alleging

breaches of the provisions of the Convention. As regards inter-State Communications, any High
Contracting Party might refer to the Commission, through the Secretary-General of the Council of
Europe, any alleged breach of the provisions of the Convention by an other High Contracting Party.
As regards individual Communications, any person, non-governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights
set forth in the Convention could send a petition to the Commission through the Secretary-General
of the Council of Europe. But this was subject to the condition that the High Contracting Party
against which the complaint has been lodged has declared that it recognizes the competence of the
Commission to receive such petitions. For Individual Communication's System to come into force the
Convention required that six State Parties must have made such a declaration. This requirement was
fulfilled in July, 1955 after six States had made the said declaration. The Convention provided that
those of the State Parties who had made such a declaration undertook not to hinder in any way the
effective exercise of this right. Such a declaration could, however, be made for a specific period.

75
A petition submitted under Article 25 to be admissible must not be
( a) anonymous, or

(b) substantially the same as matter which has already been examined by the Commission, or
(c) have already been submitted to another procedure or international investigation or settlement
and it contains no relevant new information, or
(d) incompatible with the provisions of the present convention, manifestly ill-founded, or an abuse
of the right of petition.
Besides the above conditions in case of individual petition, all types of petitions must fulfil the
following two conditions:
(i) all domestic remedies must have been exhausted according to the generally recognized rules of
international law; and
(ii) must have been submitted within a period of six months from the date on which the final
decision was taken.
Though the Commission had been active and had dealt with large number of applications, the great
majority of these had been declared inadmissible under the Convention due to failure to exhaust
local remedies, lapse of period of six months and on other grounds. One of the greatest
achievements of the European Convention, however, is that "it demonstrates beyond the shadow of
doubt that international law has developed from the positions stated so lucidly by Openheim (i.e
since the law of Nations is a law between States and since individuals cannot be subjects of this law.
"In his view although law of nations provides certain rights of individuals, they do not enjoy any
guarantee of such rights whatever from the law of nations; (International Law, Vol. I, p. 346) fifty-six
years ago to a point where an individual not only has rights under international law but can himself
bring a case before an international organ even against his own government." Bowett has also
remarked: "The acceptance of the principle that individuals may directly petition the Commission is
perhaps the most striking of all the innovations of the Convention. There have been instances of
individuals having a locus standi before the international tribunals before, but never on so grand a
scale and so as to secure compliance by States with obligations assumed by treaty towards
individuals as such. It is, of course, a perfectly logical step to take once one grasps the fact that,
under this Convention, it will normally be against their own State that they wish to petition. Hence
the in appropriateness of the traditional method whereby the State takes up the claim of its
nationals against another State."

Thus the most distinctive feature of the European Convention for the protection of Human Rights
and Fundamental Freedoms was the optional procedure under Article 25, whereby an individual
claiming to be a victim of a violation of one of the rights guaranteed by the Convention might
present a complaint against his own (or another) government to the Convention for investigation.
Individual is given direct access to an international tribunal and is recognized as having the standing
necessary to pursue his rights under international law.

Article 26, however, contained a limitation on the jurisdiction of the Commission by providing that it
may only deal with the matter after all domestic remedies have been exhausted, according to the

Donnelly's case. generally recognized, rules of international law and within six months from the date
on which final decision was taken. A few more limitations were further contained in Article 27 and
have been referred above. In this Convention reference may be made to Donnelly et, I. v. The United

76
Kingdom' decided by the European Commission of Human Rights. It related to the serious allegations
of brutality and torture in Northern Ireland which arose immediately following the introduction of
internment without trial by the Government of Britain on August 9, 1971. In May 1972, Gerald
Donnelly and six other individuals of Northern Ireland filed application with the European
Convention, alleging violations of Article 3 of the Convention. The Commission was requested to
determine "whether or not such specific acts and administrative practices are incompatible with the
European Convention for the Protection of Human Rights and Fundamental Freedoms. The
Commission held that under Article 25, the Commission was entitled only to receive petitions from
alleged victims of violations of the Convention and hence it was incompetent to examine whether or
not the rights of any individual other than the said seven applicants had been violated. However, it
added, " neither Article 25, nor any other provisions of the Convention, inter alia Art. 27(1)(a)
prevent an individual applicant from raising before the Commission a complaint in respect of an
alleged administrative practice in breach of the Convention provided that he brings prima facie
evidence of such a practice and of his being a victim of it."
Further, " where an applicant under Article 25 submits evidence, prima facie, substantiating both the
existence of an administrate practice, which he alleges to be contrary to Art. 3 and his claim to be a
victim of acts part of that practice. The domestic remedies rule in Art. 26 does not apply to that part
of his application”. The Commission, however, expressed its inability to rant any form of declaratory
relief at the stage of determining the admissibility of the application.' Thus, " ..... an individual was
not entitled, as was argued by the United Kingdom, to raising only those specific actions which
resulted in the violation of his own particular rights: Provided he is a direct victim of the alleged
administrative practice which he seeks to raise before the Commission, there is no bar to his putting
into issue the compatibility with the Convention of such a practice (or legislative measure)" Further,
"At a time when it could be argued that too many conventions and procedures which purport to
protect human rights are deliberately empty promises lacking realistic enforcement provisions, the
admissibility decision in the Donnelly's case is a welcome and meaningful advance.
In case the Commission accepted a petition referred to it, with a view to ascertaining the facts
undertake with the representatives of the parties an examination of the petition, and if need be, an
investigation, for the effective conduct of which the States concerned are required to furnish all
necessary facilities, after an exchange of a views with the Commission.'' The Commission placed
itself at the disposal of the parties concerned with a view to securing a friendly settlement of the
matter on the basis of respect for human rights as defined in the Convention. In case the
Commission was able to secure a friendly settlement a report is adopted by the full Commission and
transmitted to the parties, the Committee of Ministers and the Secretary-general of the Council of
Europe. The Commission also published such a report.

If the solution was not reached, the Commission draws up a Report on the facts and state its opinion
as to whether the facts found disclose a breach by the State concerned of its obligations under the
Convention. The opinions of all the members of the Commission on this point could be stated in the
Report. The Report was then transmitted to the Committee of Ministers. It is also transmitted to the
States concerned, who were not at liberty to publish it. While transmitting the Report to the
Committee of Ministers the Commission could make such proposals as it thinks fit.

If the question was not referred to the Court in accordance with the then Article 48 of the
Convention within a period of three months from the date of transmission of the Report to the
Committee of Ministers, the Committee of Ministers shall decide by a majority of the members
entitled to sit on the Committee whether, there had been 'a violation of the Convention. If the
Committee of Ministers decided that there had been a violation of the Convention, it shall prescribe

77
a period during which the contracting party concerned must take the measures required by the
decisions. If the State concerned has not taken satisfactory measures within the prescribed period,
the Committee of Ministers shall decide' by a simple majority what effect shall be given to its
original decision and shall publish the Report. The State Parties have undertaken to regard as binding
on them any decision which the Committee of Ministers may take. The Committee of Ministers is the
highest political and executive body of the Council of Europe and also for ECHR. Its decisions are
binding on State Parties to the Convention, It can order compliance with a decision of the Court or
recommendation of the Commission.

In practice, the Commission was by so far the most important organ established by the ECHR. It
received large number of petitions every year. Before 1973 it had already dealt with approximately
6,000 applications while the Court had considered only 10 cases. It may be noted that most of the
applications, that the Commission received were individual applications and a very few were inter-
State applications by the end of 1977, the Commission had received over 8,000 individual
applications whereas only 11 inter-State applications had been received.

As noted above the provisions relating to European Commission of Human Rights were deleted with
effect from 1st November, 1998. The present position, therefore, is that there is 110 European
Commission of Human Rights.

(2) European Court of Human Rights.

As stated above, with effect from 1st November, 1998 only institution for the enforcement of the
provisions of the European Convention for the Protection of Human Rights and Fundamental
Freedoms (1950) is European Court of Human Rights. A detailed discussion of this court will be made
below under the heading "The Present System".
(II) The Present System.-Under the present system, European Court of Human Rights is the only
institution for "the observation of the engagements undertaken by the High Contracting Parties and
Protocols, thereto.

European Court of Human Rights.

Article 19 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms (1950) provides for the setting up of a European Court of Human Rights which shall
function on a permanent basis. For coming into being of the Court the original Convention required
at least eight States Parties must accept the jurisdiction of the Court. This requirement having been
fulfilled in September, 1958, the Court was set up in January, 1959. Only the States accepting the
jurisdiction could bring a case before the court.
The Court consists of a number of Judges equal to the that of the Contracting Parties. The Judges
shall be of a high moral character and must either possess the qualifications required for
appointment to high judicial office or be juries consults of recognized competence. The Judges shall
sit on the court in their individual capacity. The Judges shall be elected by the Parliamentary
Assembly with respect to each States Parties by a majority of votes cast from a list of three
candidates nominated by the State Party. The Judges shall be elected for a period of six years.
However, the terms of office of one half of the Judges elected at the first election shall expire at the
end of three years. The terms of the Judges shall expire when they reach the age of 70. The Judges
shall hold office until replaced. They shall, however, continue to deal with such cases as they already
have under consideration. No Judge may be dismissed from his office unless the other Judges decide
by majority of two thirds that he has ceased to fulfil the required conditions.

78
Since there are 47 member States of the Council of Europe, there are 47 Judges in the European
Court of Human Rights.

Plenary Court.
The plenary court shall-

(a) elect its President and one or two Vice-Presidents for a period of three years;
(b) set up Chambers, constituted for a fixed period of time;

(c) elect the P-residents of the Chambers of the court; they may be re-elected;
(d) adopt the rule of the court;

(e) elect the Registrars and one or more Deputy Registrars.

Currently, Dean Speimann is the President of the European Court from 2012. He had been a Judge in
the European Court and became President in 2012. His term will end in 2015.

Committees, Chambers and Grand Chamber

Committees.-
To consider cases brought before it, the court shall sit in committees of three Judges, in Chambers of
seven Judges and in Grand Chamber of seventeen Judges. The Court's Chambers shall set up
committees for a fixed period of time. There shall sit an ex officio member of the Chamber and the
Grand Chamber.

A Committee may, by a unanimous vote, declare inadmissible or strike out of its list cases of
individual application submitted under Article 34 where such a decision can be taken without further
examination. The decision shall be final.

Chambers and their powers.

If no decision is taken on the admissibility of individual application I under Article 28, a Chamber
shall decide on the admissibility and merits of individual application submitted under Article 34. A
Chamber shall al 0 decide on the admissibility and merits of Inter-State application submitted under
Article 33. The decision on admissibility shall be taken separately unless the court, in exceptional
cases, decides otherwise.
Where a case pending before a Chamber raises a serious question affecting the interpretation of the
Convention or the Protocols thereto or where the resolution of a question before it might have a
result inconsistent with the judgment previously delivered by the court, the Chamber may, at any
time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber,
unless one of the parties to the case objects.

The judgement of a Chamber shall become final:

(a) when the parties declare that they will not request that the case be referred to the Grand
Chamber, or
(b) three months after the date of the judgment, if reference of the case to the Grand Chamber has
not been requested, or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43.

The final judgment hall be published.

79
Grand Chamber and its powers.
The Grand Chamber consists of seventeen Judges. The Grand Chamber shall also include the
President of the Court, the Vice-Presidents, the President of the Chamber and other Judges chosen
in accordance with the rules of the court. When a case is referred to the Grand Chamber under
Article 43, no Judge from the Chamber which rendered the judgment shall sit in the Grand Chamber
with the exception of the President of the Chamber and the Judge who sat in respect of the Party
concerned.
Where a case pending before a Chamber raises a serious question affecting the interpretation of the
Convention or the Protocols thereto or where the resolution of a question might have a result
inconsistent with a judgment previously delivered by the court, the Chamber may, at any time
before it has rendered the judgment, relinquish jurisdiction in favour of the Grand Chamber, unless
one of the parties to the case objects."
A regards the powers of the Grand Chamber, Article 31 of the European Convention provides that it
shall-

(a) determine applications submitted under Article 33 or Article 34 when a Chamber has
relinquished jurisdiction under Article 30 or when the case has been referred to it under Article 43. It
may be noted here that Article 33 deals with "Inter-State case." Article 34 deals with "individual
applications" and Article 43 provides that within a period of three months from the date of the
judgment any party to the case may, in exceptional cases request that the case be referred to the
Grand Chamber. A panel of five Judges of the Grand Chamber shall accept the request if the case
raises a serious question affecting the interpretation or application of the Convention or the
Protocols thereto, or a serious issue of general importance. If the panel accepts the request, the
Grand Chamber shall decide the case by means of a judgment.

(b) consider requests for advisory opinions submitted under Article 47. The Grand Chamber renders
advisory opinions at the request of the Committee of Ministers.

Jurisdiction of the European Court of Human Rights.

Artic1e 32 of the European Convention provides that the jurisdiction of the Court shall extend to all
matters concerning interpretation and application of the Convention and the Protocols thereto
which are referred to it as provided in Articles 33, 34 and 47.

In the event of a dispute as to whether the court has jurisdiction, the court shall decide. Thus the
European Court may have following three types of jurisdictions :-

(1) Inter-State cases (Article 33);

(2) Individual applications (Article 34);

(3) Advisory opinions (Article 47).

(1) Inter-State cases.

The State Parties may refer to the court any alleged breach of the provisions of the Convention and
the Protocols thereto by another State Parties.

(2) Individual Applications.

The Court may receive applications from any person, non-governmental organization or group of
individuals claiming to be the victim of violation by one of the High Contracting Parties of the rights
set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of the right.

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Exhaustion of Local Remedies :
It may, however, be noted that the court may deal with the matter after all domestic remedies have
been exhausted according to the generally recognized rules of international law, and within a period
of six months from the date on which the final decision was taken.

Conditions or criteria for admissibility of individual application.

The Court shall not deal with any individual application submitted under Article 34 that-
(a) is anonymous

(b) is substantially the same as a matter that has already been examined by the Court or has already
been submitted to another procedure of international investigation or settlement and contains no
relevant new information."
Further, the court shall declare inadmissible any individual application submitted under Article 34
which it considers incompatible with the provisions of the Convention or Protocols thereto,
manifestly ill-founded or an abuse of the right of application.

Lastly, the Court shall reject any application which it considers inadmissible under this Article. It may
do so at any stage of proceedings.

Just satisfaction.
If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if
the internal law of the High Contracting Party concerned allows only partial reparation to be made,
the court shall, if necessary, afford the satisfaction to the injured party."

Binding force and execution of judgments.

Under Article 46 of the Convention, the High Contracting Parties have undertaken to abide by the
final judgment of the court in any case to which they are parties. Further, the final judgment of the
court shall be transmitted to the Committee of Ministers which shall supervise its execution.

(3) Advisory Opinions.

The third type of jurisdiction possessed by the court is that of rendering Advisory opinions. As noted
earlier, Article 31 provides that the Grand Chamber shall consider requests for Advisory opinions
submitted under Article 47. Article 47 which deals with Advisory opinions, provides that the court
may at the request of the Committee of Ministers, give advisory opinions on legal questions
concerning the interpretation of the Convention and the Protocols thereto. Such opinions shall not
deal with any question relating to the content or scope of the rights or freedom defined in. Section 1
of the Convention and the Protocols thereto, or with any other question which the court or the
Committee of Ministers might have to consider in consequence of any such proceedings as could be
instituted in accordance with the Convention. Further, decisions of the Committee of Ministers to
request an advisory opinion shall require a majority vote of the representatives entitled to sit on the
Committee.
Article 48 provides that the court shall decide whether a request for an advisory opinion submitted
by the Committee of Ministers is within its competence as defined in Article 47.
Article 49 of the European Convention further provides that the court shall give reasons for its
advisory opinions. If the advisory opinion does not represent, in whole or in part the unanimous
opinion of the Judges, any Judge shall be entitled to deliver a separate opinion. Further advisory
opinions of the court shall be communicated to the Committee of Ministers.

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Some Important cases decided by the Court
(1) Lawless v. Ireland - Relating to Derogation.
The Lawless case was the first case decided by the Court. Its judgment was delivered on November
14, 1960. Lawless, an Irish citizen, charged of terrorist offences was detained without trial by the
Irish Government under emergency powers. Lawless had also been denied habeas corpus by the
Supreme Court. The application from Lawless had been received by the Commission in November
1957. According to the Irish Government, pursuant to Article 15 of the Convention (which deals with
public emergency threatening the life of the nation) it had derogated its obligations under the ECHR.
The Commission upheld the plea of the Irish Government and concluded that the facts did not
disclose a breach of the Convention by the Irish Government. The Commission transmitted its report
to the Committee of Ministers on February I, 1960. However, in view of the fact that while reaching
its conclusion on two main issues the minority vote had been quite a substantial one (i.e. 9 to 5 and
8 to 6) and since the case raised issues of fundamental importance to the application of the
Convention, the Commission decided to refer the matter to the Court.
The Court unanimously held that the detention of Lawless without trial fell within 'he terms of
derogation permitted by Art. 15 of the Convention, and, therefore, there was no breach of the
provisions of the Convention. In the words of the Court: " ........ whereas the existence at the time of
a public emergency threatening the life of a nation, was reasonably deduced by the Irish
Government from a combination of several fact, namely: in the first place, the existence in the
territory of the Republic of Ireland of a secret army engaged in "unconstitutional activities and using
violence to attain its purposes; secondly, the fact that this army was also operating outside the
territory of the State, thus seriously jeopardizing the relations of the Republic of Ireland with its
neighbour; thirdly, the steady and alarming increase in terrorist activities from the autumn of 1956
and throughout the first half of 1957". Further, " Whereas, in conclusion, the Irish Government were
justified in declaring that there was a public emergency in the Republic of Ireland threatening the life
of the nation and were hence entitled, applying the provisions of Article 15, paragraph 1, of the
Convention for the purposes for which those provisions were made, to take measures derogating
from their obligations under the convention "

(2) Brogan v. United Kingdom - Regarding Arrest and Detention without charge or Trial
This case involved the interpretation of Article 5(3) of the ECHR which provides: "Every one arrested
or detained in accordance with the provisions of paragraph 1(c) of this and article shall be brought
promptly before a Judge or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial."

In this case four applicants had been arrested and detained under the Prevention of Terrorism Act,
1984. They were subsequently released between about four and seven days but without having
been charged or brought before a judge. Under the said 1984 Act, a person arrested under Section
12 on reasonable suspicion of involvement in acts of terrorism may be detained by police for initial
period of 48 hours, and, on the authorization of the Secretary of State for Northern Ireland, for a
further period up to 5 days. It was argued on the behalf of the Government that in view of the
nature and extent of the terrorist threat and the resulting problems in obtaining evidence sufficient
to bring charges, the maximum statutory period of detention of seven days was an indispensable
part of the effort to combat that threat.

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The Court observed that the fact that a detained person is not charged or brought before a court
does not in itself amount to a violation of the first part of Article 5(3) of the Convention. No violation
of Art. 5(3) can arise if the arrested person is released "promptly" before any judicial control of his
detention could have feasible. If the arrested person is not released promptly, he is entitled to a
prompt appearance before a judge or a judicial officer. Further, the assessment of 'promptness' has
to be made in the light of the object and purpose of Article 5. The Court has regard to the
importance of this Article in the Convention system : it enshrines a fundamental human right,
namely, the protection of the individual against arbitrary interferences by the State with his right to
liberty. Judicial control of interferences by the executive with the individual's rights to liberty is an
essential feature of the guarantee embodied in Art. 5(3), which is intended to minimise the risk of
arbitrariness. Judicial control is implied by the rule of law, 'one of the fundamental principles of
democratic society ..... , which is expressly referred to, in the Preamble to the Convention and from
which the whole Convention draws its inspiration.
The Court further pointed out that none of the applicants was in fact brought before a judge during
his time in custody. The issue to be decided is therefore whether, having regard to the special
features relied on by the government, each applicant's release can be considered as 'prompt' for the
purposes of Art. 5(3). The Court held that the difficulties referred to by the government of judicial
control and decicions to arrest and detain suspected terrorists may affect the manner of
implementation of Art. 5(3), for example, in calling for appropriate procedural precautions in view of
the nature of the suspected offences. However, they cannot justify under Art. 5(3), dispensing
altogether 'prompt' judicial control. To attach under or greater importance to the special features of
this case to justify so lengthy a period of detention without appearance before a judge or other
judicial officer would be an unacceptably wide interpretation of the plain meaning of the word
"promptly". An interpretation to this effect would import into Art. 5(3), a serious weakening of a
procedural guarantee to the detriment of the individual and would entail consequences impairing
the very essence of the right protected by the provision. In the light of these observations the Court
concluded: " none of the applicants were either brought 'promptly' before a judicial authority or
released 'promptly' following his arrest. The undoubted fact that the arrest and detentions of the
applicants were inspired by the legitimate aim of protecting the community as a whole from
terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article
5(3). There has thus been a breach of Article 5(3), in respect of all four applicants."

(4) Handyside v. United Kingdom- Relating to Freedom of Expression.

This case was relating to right of freedom of expression contained in Article 10 of the ECHR.
Paragraph 2 of Art. 10, however, recognizes that this right is subject to certain restrictions,
conditions, etc. including that of protection of health or morals.

"This case is relating to the publication of a book. The Little Red School Book in United Kingdom. This
book was already available in other European States and Handyside intended to publish in U. K. also.
But the book was seized under the Obscene Publications Act, 1959 and Handyside was convicted and
fined. The Court held that since the restrictions could be justified within Art. 10 (2), on the ground of
'protection of morals' there was no breach of Art. 10.

Relating to Freedom of Expression. Lingens v. Austria

This case is relating to Article 10 of the ECHR which guarantees to everyone the right to freedom of
expression which includes freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless by frontiers. This case was relating to an

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article written by a journalist in a magazine in which words such as 'basest opportunism' and
'immoral' about the Federal Chancellor of Austria were written. The issue of the magazine was
confiscated and the journalist was sentenced to a fine by the Vienna Court of Appeal under the
Criminal Code. The Court had to decide whether there had been a breach of Art. 10. The Court also
awarded in favour of the applicant just satisfaction of 284,538.60 shillings under Article 50 of the
compensation.

While delivering the judgment the European Court observed that freedom of the press affords the
public one of the best means of discovering and forming an opinion of the ideas and attitudes of
political leaders. More generally, freedom of political d bat is the very core of the concept of a
democratic society which prevails throughout the Convention. The limits of acceptable criticism are
accordingly wider as regards a politician as such than as regards a private individual. Unlike the
latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and
deed by both journalists and the public at large, and he must consequently display a greater degree
of tolerance. No doubt Article 10 (2) enables the reputation of others-that is to say, of all individuals
to be protected, and this protection extends to a politicians too, even when they are not acting in
their private capacity; but in such cases the requirements of such protection have to be weighed in
relation to the interests of open discussion of political issues. The impugned expressions are
therefore to be seen against the background of a post election political controversy of, wherein each
used the weapons, at his disposal; and they were in no way unusual in the hard fought tussles of
politics. The facts on which Mr. Lingens founded his value judgments were undisputed, as was also
his good faith.

After considering all the aspects of the case, the Court concluded: " ..... that the interference with
Mr. Lingens' exercise of the freedom of expression was not necessary in the democratic society for
the protection of the society for the protection of the reputation of others', it was disproportionate
to the legitimate aim pursued. There was accordingly a breach of Article 10 of the Convention. "

Extradition, which may lead to death-row Phenomenon - Soering v. United Kingdom.

Soering, a German national was charged of having committed a murder in the State of Virginia.
(U.S.). Where the sentence for this offence was death penalty. After committing the murder, Soering
fled away to United Kingdom. The United States, therefore, sought extradition of Soering form
United Kingdom. It was claimed by Soering that his extradition by U. K. would be a breach of Article 3
of the ECHR, as it would amount to exposure to the II death-row phenomenon" or subjection to "
inhuman or degrading treatment or punishment."

Delivering the judgment, the Court observed that the Convention is a living instrument which .....
must be interpreted in the light of the present day conditions; and in assessing whether a given
treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3,
the Court cannot/but be influenced by the developments and commonly accepted standards in the
penal policy of the member States of the Council of Europe in the field. Further, the Convention is to
be read as a whole and Article 3 should therefore be construed in harmony with the provisions of
Article 2. On this basis, Article 3 cannot have been intended by the drafter, of the Convention to
include a general prohibition of the death penalty since that would nullify the clear wording of
Article 2(1).
The Court also referred to Protocol No.6 which shows the intention of the contracting parties as
recently as 1983 was to adopt the normal method of amendment of the text in order to introduce

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new obligation to abolish capital punishment in time of peace and to do so by an optional
instrument allowing each State to choose the moment when to undertake such an engagement. In
these conditions notwithstanding the special character of the Convention, Article 3 cannot be
interpreted as generally prohibiting the death penalty.

The Court added that that does not mean however the circumstances relating to a death sentence
can never give rise to an issue under Article 3. The manner in which it is imposed or executed, the
personal circumstances of the condemned person and a disproportionality to the gravity of the
crime committed, as well as the conditions of detention waiting execution, are examples of factors
capable of bringing the treatment or punishment received by the condemned person within the
prescription under Article 3. Present-day attitudes in the contracting States to capital punishment
are relevant for the assessment whether the acceptable threshold of suffering or degradation has
been exceeded.
Referring the instant case, the Court held that having regard to the very long period of time spent on
death row in such extreme conditions, with the ever-present and mounting anguish of awaiting
execution of death penalty, and to the personal circumstances of the applicant, especially his age
and mental state at the time of the offence, the applicant's extradition to the United States would
expose him to a real risk of treatment going beyond the threshold set by Article 3. A further
consideration of relevance is that in the particular instance the legitimate purpose of extradition
could be achieved by another means which would not involve suffering of such exceptional intensity
or duration.
In view of above observations the Court unanimously held that " the Secretary of State's decision to
extradite the applicant to the United States would, if implemented, give rise to breach of Article 3"
thereby upholding the plea of Soering.

(6) Ireland v. United Kingdom.- Relating to Freedom from Torture and In- human or Degrading
Treatment.

This is yet another case relating to freedom from torture and inhuman or degrading treatment or
punishment enshrined in Article 3 of the ECHR. In this case twelve persons arrested on 9 August,
1971 and two persons arrested in October, 1971 were singled out and taken to one or more
unidentified centers. There, between 11 to 17 August and 11 to 18 October respectively, they were
submitted to a form of interrogation at depth which involved the combined application of five
particular techniques, namely, wall standing, hooding, subjection to noise, deprivation of sleep, and
deprivation of food and drink. The Court held that these five techniques were applied in
combination with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at
least intense physical and mental suffering to the persons subjected thereto and also led to actuate
psychiatric disturbance during interrogation. They accordingly fell into the category of inhuman
treatment within the meaning of Article 3. The techniques were also degrading since they were such
as to arouse in their victims feeling of fear, anguish and inferiority capable of humiliating and
debasing them and possibly breaking their physical or moral resistance. Although the five
techniques, as applied in combination undoubtedly amounted to inhuman and degrading treatment,
although their object was the extractions, confessions, the naming of others and/ or information and
although they were used systematically, they did not occasion suffering of the particular intensity
and cruelty implied by the word "torture" as so understood.
The Court finally concluded "that recourse to the five techniques amounted to a practice of inhuman
and degrading treatment, which practice was in breach of Article 3."

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In this case the Committee of Ministers noted that the United Kingdom then prohibited these
techniques, and so found that the UK had given effect to the Court's judgment.

(8) Wemhoff v. Federal Republic of Germany.

This case is related to the liberty of the person and concerns the interpretation of Article 5(3) and
Article 6(1) of the ECHR. In this case the applicant Regarding Liberty (Wemhoff) had been detained
on charges of breach of trust. of Person. He had been detained on remand before his trial for a
period totalling nearly three and a half years. While Article 5(3) deals with the right of an arrested or
detained person to be brought promptly before a judge ..... Article 6(1) deals with right of
everyone "to "a fair and public hearing within reasonable time "
The Court observed that the reasonableness of an accused person's continued detention must be
assessed.in each case according to its special features. In view of the special features of this case,
especially with .regard to the existence of the danger of suppression of evidence, the Court
expressed the view that this anxiety of the German Courts was justified in view of the offences of
which Wemhoff was suspected and the extreme complexity of the case. Considering all aspects of
the case, the Court concluded that there had been no breach of Articles 5(3), and 6(1).

(9) Golder v. United Kingdom.

This case is related to right to a fair trial contained in Article 6(1) and right to respect for
correspondence contained in Article 8 of the ECHR. The applicant was a prisoner and was charged of
having participated in a riot which occurred in the prison. Subsequently, however, this charge was
dropped but the charge continued to be recorded in his record card. According to the applicant, this
could affect his parole. He, therefore, wanted to communicate with his solicitor in this connection as
well as for a possible libel action against the prison officer. Consequently he sought the permission
to communicate with his solicitor but the prison authorities refused his permission. The Court held
that there had been a breach of Art. 6(1) as well as breach of Art. 8 of the ECHR.
(10) Sunday Times v. United Kingdom. Regarding Right to Freedom of Expression
This case is related to the right to freedom of expression enshrined in Article 10 of the ECHR. This
case related to thalidomide disaster which was a matter of undisputed public concern. It posed the
question whether the powerful company which had marketed the drug bore legal or moral
responsibility towards hundreds of individuals experiencing an appalling personal tragedy or
whether the victims could demand or hope for indemnification from the community as a whole,
fundamental issues concerning protection against and compensation for injuries resulting from
scientific developments were raised and many facets of the existing law of these subjects were
called in question. The Court pointed out that Article 10 guarantees not only the freedom of the
press to inform the public but also the right of the public to be properly informed. In the present
case, the families of the numerous victims of the tragedy, who were unaware of the legal difficulties
involved, had a vital interest in knowing all the underlying facts and various possible solutions.
It was on the above subject that some articles were published in a famous newspaper, the Sunday
Times. These articles were published in the context of a particular action which involved a claim by
parents of thalidomide victims against the manufacturers of the drug. This litigation had been
proceeding very slowly for about nine years. In an action against the newspaper, the House of Lords
granted an injunction preventing publication of the said articles. The House of Lords unanimously
held that the said articles constituted contempt of court as the newspaper was attempting to put
pressure on a litigant in a case pending in the Court.

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Having regard to all the circumstances of the case and on the basis of the legal position that Article
10 guarantees not only the freedom of the press to inform the public but also the right of the public
to be properly informed, the European Court of Human Rights concluded that the interference
complained of did not correspond to a social need sufficiently pressing to outweigh the public
interest in freedom of expression within the meaning of the Convention. The reason for the restraint
imposed on the applicant were not sufficient under Article 10 (2). The restraint imposed is not
proportionate to the legitimate pursuit; it was not necessary in a democratic society for maintaining
the authority of the judiciary. The court, therefore, finally held that there had been violation of
Article 10.

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 5. Comparison Between European Convention and American
Convention on Human Rights.-

After the European Convention for the Protection of Human Rights, which was adopted on
November 4, 1950, and came into force on September 3, 1953, American Convention in Human
Rights, having been signed on November 22, 1969 and came into force on July 11, 1978, is the
second important regional convention on Human Rights. European Convention was the first
convention, regional or otherwise, to implement the human rights and fundamental freedoms
proclaimed in the Universal Declaration of Human Rights (1948). Therefore, the American
Convention already had before it the example, rather model, of a successful convention. Obviously,
therefore, it borrows heavily from its predecessor, the European Convention.
Both the Conventions have many similarities. In the first place, like the European Convention, the
American Convention also incorporates only civil and political rights. The American Convention
contains most of the Civil and Political Rights contained in the European Convention. Secondly, like
its predecessor the American Convention also provides for two specialized enforceable mechanisms-
(i) the Inter-American Commission of Human Rights; and

(ii) Inter-American Court of Human Rights.

Subsequently, however, the European Commission of Human Rights was abolished (i.e. wef 31st
October, 1998) but its counterpart the American Convention still retains the Inter-American
Commission of Human Rights. Thirdly, like the European Convention, the American Convention
obligates the State Parties to achieve progressively the full realization of the rights implicit in the
economic, social, educational, scientific and cultural standards set forth in the Charter of the VAS.
Fourthly, again like its predecessor the American Convention contains a broad non-discrimination
provision which supplements the guarantees of human rights and fundamental freedoms recognized
in the Convention by ensuring the free and full exercise of the said rights and freedoms without any
discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national
or social origin, economic status, birth, or any other social condition. Fifthly, as in the European
counterpart, the American Convention permits derogation's from the obligations under the
Convention in time of war public danger or other emergency that threatens the independence and
security of a State Party. Sixthly under both the Conventions the Court's contentious jurisdiction are
"final and not subject to appeal". Last but not the least, under both the Conventions, the Court lacks
the power to enforce its judgments and preliminary rulings. The European Court relies on the
Council of Europe's Committee of Ministers for the enforcement of its judgment. Similarly the
American Court relies on the General Assembly of the OAS for the enforcement of its judgments and
preliminary orders.

Despite the above similarities, both the Conventions differ in certain respects. Following are the
main points of difference between the two :

(1) Although the American Convention incorporates most of the civil and political rights which are
contained in the European Conventions yet certain rights which were subsequently incorporated in
the European Convention by way of adoption of Protocols do not find mention in the American
Convention. For example, right to education (Art. 2, Protocol I), holding of free elections at
reasonable intervals by secret ballot (Art. 3, Protocol I), Abolition of death penalty (Art. 1, Protocol 6)
and Freedom from expulsion from a State (Art. 3, Protocol 4) are conspicuous by their absence from
the American Convention.

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(2) The European Convention guarantees certain rights to the individual but does not deal with their
duties. On the other hand, the American Convention lays down duties of the individual as well. For
example, Article 32 of the American Convention entitled "Relationship Between Duties and Rights"
states :
(1) Every person has responsibilities to his family, his community, and mankind.

(2) The rights of each person are limited by the rights of others, by the security of all, and by the just
demands of the general welfare, in a democratic society."

(3) As regards individual petitions and complaints by one State Party against another, the American
Convention has adopted a different approach than the one taken by the European Convention
whereas under the European Convention, there is a mandatory inter-State complaint procedure and
optional individual procedure. The American Convention has reversed this approach by authorizing
the Inter-American Commission on Human Rights to consider inter-State complaints only if both of
the State Parties, besides ratifying the Convention, must have formally recognized the competence
of the Commission to receive and review such complaints. But as regards a private individual
petition against any State the Commission has been authorized to accept and consider simply on the
basis of the respondent State being a party to the American Convention. Moreover, under its
European counterpart the American Convention does not limit the right of the individual to file
petitions only to victims of violations, leaving the process open to almost everyone.

(4) Though both the European Court and the Inter-American Court possess contentions as well, as
advisory jurisdiction; the advisory jurisdiction of the American Court enshrined in Article 64 of the
American Convention is much more extensive than that of the European Court. As pointed out by
the Inter-American Court of Human Rights in its advisory opinion on Restrictions to the Death
Penalty. The advisory jurisdiction conferred on the Court by Article 64 of the Convention is unique in
Contemporary international law. Neither the International Court of Justice nor the European Court
of Human Rights has been granted the extensive advisory jurisdiction which, the Convention confers
on the American Court. Further, the Convention, by permitting Member States and OAS organs to
seek advisory opinions, creates a parallel system to that provided for under Article 62 and offers an
alternate judicial method of a consultative nature, which is designed to assist States and organs to
comply with and to apply human rights treaties without subjecting them to the formalism and
sanctions associated with the contentious judicial process. It is significant to note that whereas the
American Court has decided only a few contentious cases, it has decided all cases referred to it until
recently pursuant to its advisory jurisdiction.

(5) Yet another difference between the two conventions is whereas the European Commission is
authorized to decide a case against a State Party, and has already decided several cases holding the
State Parties responsible for the violation of human rights, the American Convention can simply
draw a report setting forth its opinions and conclusion regarding the case referred to it.

(6) Unlike the European Commission and the European Court, both the Inter-American Commission
and the Inter-American Court, especially the former, operate beyond as well as within the frame
work of the American Convention. The obvious reason for this is that the Commission besides being
an organ of the OAS Charter is also an organ of the American Convention. Therefore, its powers and
procedures differ significantly depending on the source from which the Commission derives its
authority, particularly in relation to human rights and communication. Moreover, though the
Inter-American Court is primarily an organ of the Convention, yet it has been conferred no

89
jurisdiction to interpret human rights provisions of treaties other than the American Convention,
including the human rights provisions of the OAS Charter.

(7) While the European Court of Human Rights can consider and decide "Individual applications the
Inter-American Court of Human Rights has no such jurisdiction.

(8) Last but not the least, the American Court's powers are wider than that of the European Court in
certain important respects. The American Court is competent to order that the injured party be
reinstated in his rights, the violations be remedied and damages be paid moreover, an order for
damages is directly enforceable under the domestic laws of the Member States.

A perusal of the above discussion as a whole shows that the European Convention is not only the
first Regional Convention to implement the human rights and fundamental freedoms proclaimed in
the Universal Declaration of Human Rights, it is also the most successful and effective Regional
Convention. There may be some improvements in the drafting of the American Convention
especially in the conferment of extensive advisory jurisdiction, yet as a whole and in practice the
European Convention has proved to be more successful and effective convention. One of the main
reasons for this seems to be that though the membership of both the regional conventions is limited
to a particular region having some background and nearly similar state of social, economic and
political development yet the European States who signed and ratified the convention were more
eager, willing and prompt to undertake the obligations under the Convention than the American
States. This is obvious from the fact that European Convention was adopted on November 4, 1950
and came into force on September 3, 1953, i.e. within a period of three years. On the other hand,
the American Convention was signed on November 22, 1969 and it took nearly 9 years, i.e. three
times more for corning into force on July 11, 1978. The frequent conflicts amongst the members of
the OAS showed that they lacked political will to make the American Convention as successful as its
European counterpart.
It may be noted here that in view of certain democratic changes that have taken place recently in
Eastern European States it is expected that some more States will ratify the European Convention on
Human Rights, thereby further strengthening it .. Besides this since 1975, beginning with Helsinki
Final Act (Final Act of the Conference on Security and Co-operation in Europe, 1975), a number of
agreements concerning human rights have been entered into within the Conference on Security and
Co-operation (CSCE) process. A concluding document was signed in 1989.52 This document, inter
alia, contains some procedure for monitoring compliance with human rights aspects. The change in
collective security agreements which were necessitated because of the political developments in
Europe, the link. between human rights and security and co-operation may lead to CSCE becoming
an important means for the protection of human rights. Though America is a signatory to the
Helsinki Final Act yet such developments concerning protection of human rights are hardly visible in
the American region.

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 6. Discuss the human and people’s rights enshrined by the African
Charter

African Charter on Human and People's Rights, also popularly known as Banjul Charter, was adopted
on June 27, 1981 and entered into force on 21st October, 1986. So far 49 States, of the 50 members
of the Organisation of African Unity (OAU), since replaced by African Union have ratified or acceded
to it. It has been ratified by every member of African Union (AU) with the exception of South Sudan.
There are 63 articles in the African Charter. A special feature of the African Charter is that along with
rights, it also lays down the duties of the individuals. As noted earlier, even the American Convention
contained an article entitled "Relationship Between Duties and Rights". But the difference is
whereas the American Convention did so very briefly or even causally, the African Charter
enumerates the duties in detail laying greater emphasis on the duties of the individuals. This is
evident from the preamble of African Charter.
Preamble.- Through the Preamble the State Parties being the member of the OAU recognize, on the
one hand, that fundamental human rights stem from the attributes of human beings, which justifies
their international protection and on the other hand that the reality and respect of people's right
should necessarily guarantee human rights. Emphasizing the duties, the preamble states "that the
enjoyment of rights and freedoms also implies the performance of duties on the part of everyone."
The preamble also emphasizes "the right to development and that civil and political rights cannot be
dissociated from economic, social and cultural rights in their conception as well as universality and
that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil
and political rights."

The African members of the Organization of African Unity, parties to the present convention were
convinced that it is henceforth essential to pay particular attention to the right to development and
that civil and political rights cannot be dissociated from economic, social and cultural rights in their
conception as well as universality and that the satisfaction of economic, social and cultural rights is a
guarantee for the enjoyment of civil and political rights, they were conscious of their duty to achieve
the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine
independence, and undertaking to eliminate, colonialism, neo-colonialism, apartheid, Zionism, and
to dismantle aggressive foreign military bases and all forms of di crimination, particularly those
based on race, ethnic, colour, sex, language, religion or political opinion. They re-affirmed their
adherence to the principle of human and people's rights and freedoms contained in the declarations,
conventions and other instruments adopted by the organization of African Unity, the Movement of
Non-Aligned Countries and the United Nations. Being firmly convinced of their duty to promote and
protect human and peoples' rights and freedoms taking into account the importance traditionally
attached to these rights and freedoms in Africa, they have agreed to the provisions contained in 68
articles of this convention.

Human and People's Rights.

Chapter 1 of Part I of the African Charter contains the following rights:

(1) Equality before law and equal protection of law.

(2) Right to respect for life and integrity of person.

(3) Right to the respect of the dignity inherent in a human being and the recognition of his legal
status.

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(4) Right to liberty and security of person.
(5) Right to have his cause heard including

(a) right to appeal to competent national organs against violations of fundamental rights;
(b) right to presumption of innocence until proved guilty;

(c) right to defence; and the right to fair trial within a reasonable time by an impartial court or
tribunal.

(6) Freedom of conscience, the profession and free practice of religion

(7) Right to information; right to express and disseminate his opinions.

(8) Right to free association.

(9) Right to assemble freely with others.

(10) Right to freedom of movement and residence.

(11) Right to participate freely in the government of the country and- right of equal access to the
public service.
(12) Right to property.

(13) Right to work under equitable and satisfactory conditions.

(14) Right to enjoy the best attainable state of physical and mental health
(15) Right to education and take part freely in the cultural life of community.

(16) Family to be the natural unit and basis of society and shall be protected by the State.
(17) Right to equality and prohibition of domination of a people by another.

(18) Right to existence including the unquestionable and inalienable right to self-determination.
(19) Right to freely dispose of wealth and natural resources.

(20) Right to economic, social and cultural development.

(21) Right to development.

(22) Right to national and international peace and security.

(23) Right to a general satisfactory environment favourable to their development.

The African Charter provides that the Member States of the OAU Parties to the present Charter, shall
recognize the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt
legislative or other measures to give effect to them.24 The Charter also contains guarantee of non-
discrimination. It provides that every individual shall be entitled to the enjoyment of the rights and
freedoms recognized and guaranteed in the present Charter without distinction of any kind, such as,
race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social
origin, fortune, birth or other status. Further, the State Parties to the present Charter shall have the
duty to guarantee the Independence of the Courts and shall allow the establishment and
improvement of appropriate national institutions entrusted with the promotion and protection of
the rights and freedoms guaranteed by the present Charter.

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 7. Explain the three main procedures for implementation of the
African Charter on Human and Peoples’ rights.

Implementation of the African Charter.-

The African Charter provides mainly three main procedures-
(i) the Reporting procedure;

(ii) inter-State communications; and

(iii) communications other than those of State Parties concluding individuals-for the implementation
of the provisions, of the Convention and the main machinery for implementation is the Commission.

(i) Reporting Procedure-

State Parties to the African Charter have undertaken to submit every two years, beginning from the
date of the Charter enters into force, a report on the legislative or other measures they have taken
to give effect to the rights and freedoms recognized and guaranteed under the Charter.

(ii) Inter-State Communications.

The African Charter provides that if a State Party has good reasons to believe that another State
Party has violated the provision of the Charter, it may bring the same to the notice of that State in
writing. A communication to the same effect shall also be sent to the Secretary-General of the OAU
and to the Chairman of the Commission. The State Party concerned against whom the said
communication is sent is required to send a written explanation. If the matter is not settled to the
satisfaction of the two State parties concerned bilaterally or through other peaceful procedure
within three months from which the complaint was originally made, either State will be entitled to
refer the matter to the Commission through the Chairman notifying the other State concerned.
Further in case the State Party considers that another State Party is guilty of the violation of the
provisions of the African Charter, it need not follow the above procedure and may refer the matter
directly to the commission though the Chairman to the Secretary-General of the OAU and the States
concerned. The Commission may ask the States concerned to submit all relevant information
relating to the matter. The States concerned are permitted representation when their matter is
being considered and may make written or oral representation. It may be noted here that before
dealing with the matter the Commission satisfies itself that before the complaint has been made all
local remedies have been exhausted. However, the Commission may exempt from this requirement
if it finds that the procedure of exhausting the said remedies would be unduly prolonged. After
making all efforts to reach an amicable settlement based on respect of Human and People's rights,
the Commission, within a reasonable period, is required to draw a report containing the facts and its
findings and transmit the report to the States concerned and communicate the same to the
Assembly of Heads and Governments with such recommendation which it deems useful or fit.

If one or more communications reveal the existence of a serious or massive violations of human and
people's rights, the matter is taken seriously and it shall bring the same to the notice of the
Assembly of Heads of States and Governments which may in its turn ask the Commission to make an
in-depth study of the said cases and submit a factual report including its findings and
recommendations.

93
(iii) Other Communications (including individuals)-
African Charter provides that the Secretary of the Commission shall make a list of communications
other than those of State Parties before each session and transmit the same to the members of the
Commission who shall decide by a simple majority of members, as to which communication ought to
be considered by the Commission. 50 Though this provision does not expressly mention individuals
obviously individuals communications are included in the term 'communication other than those of
the State Parties'. It is further provided that communications relating to human and people's rights
referred to in Article 55 received by the Commission, shall be considered if they -

1. indicate their authors even if the latter request anonymity.

2. are compatible with the Organization of African Unity, or with the present Charter;

3. are not written in disparaging or insulting language directed against the State concerned and its
institutions or to the OAU;

4. are not based exclusively on news disseminated through the mass media.
5. are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged;
6. are submitted within a reasonable period from the time local remedies are exhausted or from the
date the Commission is seized with the matter; and

7. lastly, they do not deal with cases which have been settled by these States involved in accordance
with the principles of the Charter of the OAU or the provisions of the present Charter.

The Commission submits report of all its activities to the Assembly, of the Heads of States and
Governments. All measures taken by the Commission remain confidential until such a time as the
Assembly of Heads of States and Government otherwise decide. After considering the report by the
Assembly of Heads of States and Governments, the Chairman gets the report published.

94
 8. “A special feature of the African charter which distinguishes this
regional convention from other regional conventions is the
enumeration of duties in detail”. Analyse this statement along
with defects in the African charter on Human Rights and peoples
rights.

Duties.
Chapter II of Part I of the African Charter lays down following duties of each individual :
(1) Duties towards family and society, the State and other legally recognized communities and
international community.

(2) Each individual to exercise the rights and freedoms with due regard to the rights of others,
collective security, morality and common interest.

(3) Duty to respect and consider his fellow beings without discrimination, and to maintain relations
aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.

(4) Duty to preserve the harmonious development of the family and to work for the cohesion and
respect of the family; to respect his parents at all times, to maintain them in case of need.

(5) Duty to serve his national community by placing his physical and intellectual abilities at its
service.

(6) Duty not to compromise the security of State whose national or resident he is.
(7) Duty to preserve and strengthen social and national solidarity particularly when the latter is
threatened.
(8) Duty to preserve and strengthen the national independence and the territorial integrity of his
country and to contribute to its defence in accordance with the law.
(9) Duty to work to the best of his abilities and competence, and to pay taxes imposed by law in the
interest of the society
(10) Duty to preserve and strengthen positive African Cultural values in his relations with other
members of the society, in the spirit of tolerance, dialogue and consultation and in general, to
contribute to the promotion of the moral well being of society.

(11) Duty to contribute to the best of his abilities, at all times and at all levels, to the promotion and
achievement of African Unity.

Appraisal.-
A special feature of the African Charter which distinguishes this regional convention from other
regional convention in the enumeration of duties in detail. Liberty is a social contract. If a person
wants to enjoy his rights, he will have to respect the rights of others. Every rights has a
corresponding duty: Enumeration of duties is, therefore, a welcome feature. Unfortunately the
African Charter does not take the matter to its logical conclusion. After enumeration of the duties it
stops there and does not provide for the enforcement of duties in case of breach. While providing

95
for the implementation of the provisions of the Convention no provision whatsoever is made for the
enforcement of duties. Even the functions of the Commission are conspicuous of any mention of the
enforcement of duties. Thus the provisions relating to duties are simply figurative or decorative
lacking any substance. The only provision (Art. 1) obligating State Parties to recognize duties is to
adopt legislative or other measure to give effect to them. But this is far from being effective.
Yet another deficiency or the point which distinguishes it from the European and American
Conventions is that the African Charter was conspicuous of absence of any court for the
enforcement of human and people's rights thereby relying heavily on mediation, conciliation and
arbitration which are considered more in keeping with the traditional African dispute resolution
system.

In order to remove this deficiency the Members of the Organization of African Unity adopted to a
Protocol in 1998.

The Commission as the main mechanism for the implementation of the provisions of the African
Charter only performs essentially on fact finding and information providing role. The Commission
can simply investigate and submit to the Assembly of Heads and Governments, report on human
rights violations. It can neither take a binding decision nor can it enforce it. It is only the OAU
Assembly which can decide and take necessary action.

Both inter-State and individual's communications are accepted upon ratification of the African
Charter. Last but not the least, African Charter on Human and People's Rights is the international or
regional Convention on Human Rights which specifically enumerates and protects people's rights.

African Court on Human and People's Rights.-

With a view to attain the objectives of the African Charter on Human Rights and Peoples' Rights, it
was decided to establish an African Court on Human and People's Rights to complement and
reinforce the functions of the African Commission on Human and People's Rights. The Member
States of the Organisation of African Unity (hereinafter referred to as to O.A.U.) State Parties to the
African Charter on Human and People's Rights adopted Protocol on the Establishment of an African
Court on Human and People's Rights (1998).

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 9. Short Notes
a) African commission on Human Rights
African Commission on Human and People's Rights.-
Article 30 of the African Charter provides for the establishment within the DAU an African
Commission on Human and People's Rights as the mechanism to promote human and people's rights
and ensure their protection in Africa. The Commission consists of eleven members to be chosen
from amongst African personalities of the highest reputation known for their high morality, integrity,
impartiality and competence in matters concerning human and people's rights, preference being
given to person having legal experience. They serve in their personal capacity.
There is also provision for the appointment of a Secretary to the Commission to be appointed by the
Secretary-General of the Organization of African Unity. His main function is to provide for the staff
and services necessary for the effective discharge of the duties of the Commission.

The functions of the Commission are following:

(1) To promote human and people's rights and in particular-

(a) to collect documents, undertake studies and researches, organize seminars, symposia and
conferences, disseminate information, encourage national and local institutions concerned with
human and people's rights and also in case of need, give its views or make recommendation to
governments of State Parties to the present convention;

(b) to formulate and lay down, principles and rules aimed at solving legal problems concerning
human and peoples' rights and fundamental freedoms upon which African governments may base
their legislations; and
(c) to cooperate with other African and International Institutions concerned with the promotion, and
protection of human and people's rights.
(2) To ensure the protection of human and people's rights.

(3) To interpret all the provisions of the Charter at the request of a State Party, institutions of the
OAU or an African Organisation recognized by the OAU.

(4) To perform any other task which may be entrusted to it by the Assembly of Heads of States and
Covernments.

Investigation by the Commission.

The Commission may resort to any appropriate method of investigation. It may hear from the
Secretary-General of the Organisation of African Unity or any other person capable of enlightening it
(Article 46).

97
 UNIT 4

1. Indian Constitution bears the impact of the Universal

declaration of Human rights. Elucidate.

The Universal Declaration of Human Rights was adopted by the General Assembly of the U. N. on 10
December, 1948;

The Constitution of India was adopted on November 26, 1949 but came into force on January 26,
1950

Through the preamble the people of India have resolved to secure to all citizens the following four
objectives:

(a) Justice, social, economic and political;

(b) Liberty of thought, expression, belief, faith and worship;

(c) Equality of status and opportunity and to promote among them all;
(d) Fraternity assuring the dignity of the individual and the unity and

With a view to achieve the above-mentioned aims and objects of the Preamble and to constitute
India into a Sovereign, Socialist, Secular, Democratic Republic, the framers of Indian Constitution
have, inter alia, incorporated 'Fundamental Rights' and 'Directive Principe Is of State Policy' in Part III
and Part IV of the Constitution, respectively. Thus even though there is no express mention of the
term 'human rights' in the Constitution, the Constitution of India has incorporated human rights in a
big way in the form of Fundamental Rights and Directive Principles of State Policy. While the former
incorporates civil and political rights, the latter incorporates the economic, social and cultural rights.
The Indian Constitution bears the impact of the Universal Declaration of Human Rights and this has
been recognized by the Supreme Court of India. While referring to the Fundamental Rights
contained in Part III of the Constitution, Sikri, C. J., of the Supreme Court, in Kesavanand Bharti v.
State of Kerala, observed: "I am unable to hold, these provisions show that rights are not natural or
inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights and
that Declaration describes some fundamental rights as inalienable."
Earlier, in Golak Nath v. State of Punjab the Supreme Court observed:

"Fundamental rights are the modern name for what have been traditionally known as
'natural rights' ".

The Supreme Court has also recognized the interpretative value of the Universal Declaration of
Human Rights in Kishore Oland v. State of H.P., 1991 1 set 68, 76.

The Universal Declaration of Human Rights does not define the term 'human rights'. It refers them as
the equal and inalienable rights of all members of the human family". The framers of the Indian
Constitution were influenced by the concept of human rights and guaranteed most of human rights
contained in the Universal Declaration. The Universal Declaration of Human Rights contained civil
and political as well as economic, social and cultural rights. While Civil and Political rights have been

98
incorporated in Part III of Indian Constitution, economic, social and cultural rights have been
incorporated in Part IV of the Constitution. The following chart is being given below to indicate the
human rights which have been incorporated in Indian Constitution.

Specifically Enumerated Rights

(i) Civil and Political Rights
Universal Declaration of Human Rights Indian Constitution

1. Right to life, liberty and security of Article 21

person (Art. 3)
2. Prohibition of slavery, slavery Article 23
trade etc. (Art. 4)
3. Equality before law and non- Article 14 and 15 (1)
discrimination (Art. 7)

4. Right to effective remedy (Art. 8) Article 32

5. Right against· arbitrary arrest, Article 22
detention etc. (Art. 9)
6. Right against ex-post facto laws Article 20 (1)
[Art. 11(2)]

7. Right to freedom of movement (Art. Article 19 (1) (d)

13(1)
8. Right to own property and not to be Article 19 (1) (f)
deprived of property (Art. 17)
(But it was omitted by the
Constitution (42nd
Amendment) Act, 1978)*

9. Right to freedom of thought, Article 25(1)

conscience and religion (Art. 18)

10. Right to freedom of opinion and Article 19 (1) (a)

expression (Art. 19)

11. Right to freedom of peaceful Article 19 (1) (b)

assembly and association (Art.
20(1))
12. Right to equal access to Public Article 16(1)
service [Art. 21 (2)]
13. Right to social security (Art. 22) Article 29 (1)

14. Right to form and to join trade unions Article 19 (1) (c)
(Art. 23 (4))

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 • The Constitution (42nd Amendment) Act, 1978 which omitted Art. 19(1)(f) also inserted a
new Article, i.e., Article 300-A with a new Chapter i.e. Chapter IV in Part XII of the
Constitution after Article 300 with heading "persons not to deprived of property save by
authority of law". Thus 'right to property' is now continued in Art. 300-A but it is not a
fundamental right.

The above chart shows that many of the civil and political rights enshrined in the Universal
Declaration of Human Rights also find mention in Part III of the Constitution as fundamental rights.
However, there are certain rights which are contained in the Universal Declaration but have not
been expressly mentioned in the Constitution. These rights are :
(i) Rights to be not subjected to torture, or to cruel, inhuman treatment or punishment (Art. 5);

(ii) Right to recognition everywhere as a person before the law (Art. 6);
(iii) Right to full equality to a fair and public hearing by an independent and impartial tribunal (Art.
10);
(iv) Right to be presumed innocent until found guilty according to law in a public trial [Art. 11 (i)];

(v) Right to privacy (Art. 12);

(vi) Right to leave any country, including his own, and to return to this Country [Art. 13(2)];

(vii) Right to Nationality [Art. 15(1)];

(viii) Right to marry and found a family [Art. 16(1)]; (ix) Right to take part in the government of his
Country [Art. 21(1)].

Rights not specifically enumerated or other Rights: Judicial Activism.

It would not be correct to contend that the above rights have not been incorporated in Indian
Constitution, though they do not find express mention in the Constitution. These are either
subsumed under the existing fundamental rights or have been held to emanate from the existing
rights under the theory of emanation. For example, it has been held that right to life and personal
liberty enshrined in Article 21 of Constitution is of widest amplitude and several unenumerated
rights fall within Art. 21. These rights are:

(i) Right to go abroad.- Maneka Gandhi v. Union of India

(ii) Right to Privacy- See Kharak Singh v. State of U.P
(iii) Right against Solitary Confinement- Sunil Batra v. Delhi Administration

(iv) Right against Bar Fetters, Charles Curumukh Sobhraj v. Delhi Administration
(v) Right to Legal Aid, M. H. Hoskot v. State of Maharashtra,

(vi) Right to Speedy Trial; Hussainara Khatoon (v) v. Home Secretary State of Bihar, Patna,
(vii) Right against Handcuffing; Prem Shankar Shukla v. Delhi Administration

(viii) Right against Delayed Execution; T. V. Vatheeswaran v. State of Tamil Nadu

(ix) Right against Custodial Violence; Sheela Barse v. State of Maharashtra,

100
(x) Right against Public Hanging; Attorney-General of India v. Lachma Devi
(xi) Right to Health Care or Doctor's Assistance- Pt. Parmanant Katara v. Union of India

(xii) Right to Shelter - M/s. Shantistar Builders v. Narayan Khimalal Totame

Other Rights which have been held to emanate from Article 21 are following:

(i) Right to Know - Reliance Petro Chemicals Ltd v. Proprietors of Indian Express Newspaper,
Bombay, Pvt., Ltd

(ii) Right to Compensation. Rudul Sahu v. State of Bihar

(iii) Right to Release and Rehabilitation of Bonded Labour - Neerja Chaudhary v. State of M.P

(iv) Right against Cruel and Unhuman Punishment-

(v) Right of Inmates of Protective Homes - Upendra Baxi (I) v. State of U.P

Besides the declaration of above rights within the expanding ambit of Article 21. Article 21 has been
recognized as of widest amplitude and has been applied in various fields such as

Drugs - Vincent Parikuralangara v. Union of India,

Environment : Hazardous Chemicals: M. C. Mehta v. Union of India,

Insane Persons: Miss Veena Sethi v. State of Bihar

Passports: See Maneka Gandhi v. Union of India
Atomic Energy Radiations: M. K. Sharma v. Bharat Electricals Ltd

Forests.- Banwari Seva Ashram v, State of U.P

The offence of kidnapping has been held to be violative of Article 21 of the Constitution. The
Supreme Court has held that offence of kidnapping in any form impinges upon human rights and
right to life enshrined in Article 21 of the Constitution. Such acts not only strike a terror in the minds
of the people but have deleterious effects on the civilized society and have to be condemned by
imposing deterrent punishment. Tarun Bora alias Alok Hazarika v. State of Assam

The natural sources of air, water and soil cannot be utilized if the utilization results in irreversible
damage to environment. There has been accelerated degradation of environment primarily on
account of lack of effective enforcement of environmental laws and non-compliance of the statutory
norms. The Supreme Court has repeatedly said that the right to life is a fundamental right under
Article 21 of the Constitution and it includes the right of pollution free water and air for full
enjoyment of life. M.C. Mehta v. Union of India

Denial of even basic amenities to citizens by public authorities themselves amounts to an undignified
life, putting the citizens to unavoidable sufferings can only amount to inflicting punishment on such
persons. Courts have time and again held right that to have a dignified life is a part of fundamental
right of citizens embedded in Article 21 of the Constitution of India. While public authorities are
always required to implement the statutory provisions in accordance with those provisions and their
existence itself being for such purpose in the course of implementation, they should not trample
upon the rights of citizens particularly driving them to demean themselves or denying them the right
to lead a dignified life. D.N. Venkatesh Reddy v. Chief Engineer, B. W. S.S.B, Bangalore.

101
In Association of Dead People and another v. State of U. P. & others, the Division Bench of Allahabad
High Court held that for any person who has been kicked out and off his agricultural land, the matter
affects life and liberty, both. Deprivation of the source of livelihood is now well recognized as
violation of Article 21 of the Constitution of India. The liberty to hold a property with confidence,
specially a property which is the only source of livelihood, stands curtailed and the affected persons
are unable to live off their agricultural land. Livelihood affects life, consequently, this affects the
dignity of the individual that in poverty he cannot defend his liberty and life. Lastly, equal protection
of the laws, the Court regrets to record and it is accepted at the Bar, is not available to these poor
agriculturists.
It is clear from the above discussion that the scope of human rights in the form of fundamental
rights is far greater than that of Universal Declaration of Human Rights while doubts are expressed
about the binding nature of rights proclaimed in the Universal Declaration, fundamental rights
enshrined in Part III of the Constitution are not only binding, they are also enforceable through the
Courts of law. They serve as limitations on the legislative and executive powers of the State. Article
13(1) of the Constitution provides that all laws in force in the territory of India immediately before
the commencement of this Constitution, in so for as they are inconsistent with Part III, shall, to the
extent of such inconsistency, be void. Further Article 13(2) provides that the State shall not make
any law which takes away or abridges the rights conferred by Part III and any law made in
contravention of this clause shall, to the extent of the contravention, be void.

(ii) Economic, Social and Cultural Rights

Universal Declaration of Human Rights Indian Constitution

1. Rights to work, to free choice of employment, to ............. Article 41
just and favourable conditions of work etc. [Art.
23(1) ]

2. Right to equal pay for equal work [Art. 23(2)] ........ Article 39 (d)
3. Right to just and favourable remuneration [Art. ............. Article 43
23(3)]
4. Right to rest and leisure (Art. 24) ............. Article 43

5. Right to everyone to a standard of living adequate ........... Article39 (a)

& Art. 47

for him and his family [Art. 25(1)]

6. Right to education and free education in the Article 41 &
elementary and fundamental stages [Art 26(1)] Art. 45

7. Right to a proper social order (Art. 28) ............. Article 38

The above chart shows that most of the economic, social and cultural rights proclaimed in the
Universal Declaration of Human Rights have been incorporated in Part IV of the Indian Constitution.
However, the Constitution of India is conspicuous by absence of express mention of certain rights

102
proclaimed in the Universal Declaration such as right to special care and assistance to mothers and
children and same social protection for all children, whether born in or out of wedlock [Art. 25(2)];
Parents' right to choose the kind of education for their children [Art. 26(3)]; Right of everyone to
freely participate in the cultural life of the community to enjoy arts and to share in scientific
advancement and its benefits [Art. 27(1)]; and right of everyone to the protection of the morale and
material interests resulting from any scientific, literary or artistic production of which he is the
author [Art. 27(2)].
As we have seen earlier in the case of fundamental rights, so also in respect of the above rights
absence of express mention does not mean that these rights have not been incorporated in Indian
Constitution. As a matter of fact, the above rights are either subsumed in the existing rights or are
part thereof or have been expressed in a little different wording and having a little different scope.
For example, Article 39 (f) charges the State to direct its policy towards securing "that children are
given opportunities and facility to develop in a healthy manner and in conditions of freedom and
dignities and that childhood and youth are protected against exploitation and against moral and
material abandonment. Similarly Article 42 makes "provision for just and humane conditions of work
and maternity relief". Article 47 provides for the "Duty of the State to raise the level of nutrition and
standard of living and to improve public health."
So far as human rights concerning economic, social and cultural aspects are concerned, the fact
remains that Directive Principles of State Policy contained in Part IV of the Constitution are definitely
much more exhaustive than the Universal Declaration. There are a number of principles and rights
contained in Part IV of the Constitution which do not find mention in the Universal Declaration. Such
rights and principles are: The ownership and control of the material resources of the community to
be so distributed as best to sub-serve the common good [Art 39(b)]; operation of economic system
not to result in the concentration of wealth and means of production to the common detriment [Art.
39 (c)]; Equal Ju tice and free legal aid (Art. 39-A); Organisation of village Panchayats [Art.' 40)
Participation of workers in management of industries (Art. 43-A); Uniform Civil Code (Art. 44);
Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other
weaker sections (Art. 46). Protection and improvement and safeguarding of forests (Art. 48-A) etc.
As the human rights provisions of the U. N. Charter and the Universal Declaration were influenced by
the historical background especially the large scale violations of human rights and atrocities
perpetrated during the Second World War, so al 0 the concept of human rights in the form of
Fundamental Rights and Directive Principles were influenced by the historical background and the
conditions that prevailed in the sub-continent of India before the adoption of the Constitution.

Yet another feature of the Universal Declaration which deserves mention here is the emphasis on
everyone's duties to the community in which alone the free and full development is possible. This
provision is contained in Article 29(1) of the Universal Declaration and is a welcome feature because
liberty is a social contract. If a person wants to enjoy his rights in the community he will have to
respect the rights of others. Indian Constitution when adopted in 1949, and carne into force in 1950
was conspicuous by absence of any mention of duties. This was a great lacuna which was sought to
be rectified later on. The Constitution (Forty-second Amendment) Act, 1976 which came into effect
on 3.l.1977 inserted a new Part viz. Part IV-A entitled "Fundamental Duties" comprising of only one
Article viz. Article 51-A. Because of the belated insertion and the position given to it under the
Constitution, so far it has failed to make the desired effect. Nevertheless, the Fundamental Duties
mentioned in clauses (a) to (j) of Article 51-A are more varied and exhaustive than the one
mentioned in the Universal Declaration of Human Rights.

103
 2. What are the Human Rights guaranteed and protected under
the Constitution of India? Discuss.

Classification of Human Rights Under Indian Constitution:

A perusal of Indian Constitution shows that human rights have been classified under Indian
Constitution into the following categories:

(1) Fundamental Rights and Rights to freedom (Fundamental Freedoms);

(2) Civil and Political and Economic, Social and Cultural Rights;

(3) Human Rights for all and Human Rights for Citizens only;
(4) Justiciable Human Rights and Non-Justiciable Human Rights; and

(5) Enumerated Human Right and Unenumerated Human Rights.

(1) Fundamental Rights and Rights to Freedom (Fundamental Freedoms)-

The Charter of the United Nations uses the term "human rights and fundamental freedoms" in
Article 1 (3), Article 13(1) (b), Article 55, and Article 76(c). The preamble of the Universal Declaration
of Human Rights also uses the term "human rights and fundamental rights". Further, while Articles I,
3, 6,8, 10, 13, 14, 15, 16, 17, 21, 22, 23, 24, 26, 27 and 28, Articles 13, 18, 19 and 20 use the term
"right to freedom" and the term "rights and freedom" has been used in Articles 2, 29(2), and 30. The
distinction between "human rights" and "fundamental freedoms" or "right to freedom" has not been
clarified. The very title of European Convention is the European Convention for the Protection of
Human Rights and Fundamental Freedoms (1950). While Articles 2, 5, 6, 8 and 12 of the European
Convention refer to, rights; the term "rights to freedom" has been used in Articles 9 to 11. On the
other hand, the term "rights and freedoms" has been used in Articles 13 and 14. The American
Convention on Human Rights (1969) has adopted the same pattern. While the term 'rights' is
referred in Articles 3, 4, 5, 7, 8, 10, 11, 14, 15, 17, 18, 19, 20, 21, 23, 24 and 25, the term 'freedom'
has been used in Articles 6,9, 12, 13, 16 and 22. In none of the foregoing instruments the tests for
dividing human rights into rights and freedoms, "human rights and fundamental freedoms or 'rights
and right to freedom" has been laid down. The only clue that one gets from the perusal of the
foregoing instruments is that while some human rights have been referred as rights "certain
others have been referred as 'freedoms'.
Probably taking the clue from the Universal Declaration of Human Rights (1948), Indian Constitution
has used the expression "Right to Freedom" in respect of the fundamental Rights contained in Article
19, Articles 25, 26, 27 and 28 whereas the term "right" has been referred in respect of other
fundamental freedoms. As in the case of International instruments concerning human rights, the
Constitution of India has also not laid down any test for dividing human rights, into categories of
"rights" and "right to freedom": It may therefore be concluded that some human rights have been
referred as rights, whereas certain other rights have been referred as right to freedom. The use of
such different terms seems to have no legal or other significance.

(2) Civil and Political Rights and Economic, Social and Cultural Rights.-
A distinction between civil and political rights on the one hand, and economic, social and cultural
rights has always been maintained. While civil and political rights are recognized as the traditional

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rights of the individual against the State and are based on the laissez faire doctrine of non-
interference, the position of economic, social and cultural rights is different. They are relatively a
later growth and are not based on non-interference of the State. They require a positive
contribution of the State. "Social rights" are aimed at a social order which is the just opposite of
laissiz faire. While the enforcement of civil and political rights can be guaranteed it is difficult rather
impossible to guarantee the enforcement of social and economic rights even though it is recognized
that all human rights are universal, indivisible, interdependent and inter-related for without a
particular State of social and economic development, it is not practicable to enjoy civil and political
rights and vice versa. For example, while Article 7 of the Universal Declaration containing the right to
equality before the law can be enforced but the same is not true of Articles 27(1) and 28 relating to
right to participate in the cultural life of the community and right to have a social and International
order respectively. Thus both the justiciable and non-justiciable rights were included in the Universal
Declaration. This difficulty was soon realized and the later International instruments that were
adopted on human rights sought to rectify this.
The European Convention for the Protection of Human Rights and Fundamental Rights (1950), the
first International instrument to give effect to the rights and freedoms proclaimed in the Universal
Declaration, incorporated only Civil and Political Rights. So is the case with International Covenant
on Civil and Political Rights (1966) and American Convention on Human Rights (1969). That is why a
separate European Social Charter had to be adopted later on in 1961. So was the case with separate
International Covenant-on Economic, Social and Economic Rights (1966).
The distinction between the enforcement method and procedure between- the two different types
of rights has also been recognized. For example, Article 2 of the International Covenant on Civil and
Political Rights (1966) contains the undertaking of each State Party to the Covenant "to respect and
to ensure to all individuals within its territory and. subject to its jurisdiction the rights recognized in
the present covenant..." and also contains the undertaking: '

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall
provide an effective remedy, notwithstanding, the violation has been committed by persons acting
in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that competent authorities shall enforce such remedies when granted.
As compared to this, the provisions contained in Article 2 of the International Covenant on
Economic, Social and Cultural Rights (1966) are much weaker and are simply persuasive instead of
being binding and effective. Article 2 of the Economic Covenant provides that each State party to the
present covenant undertakes to take steps, individually and through International assistance and co-
operation especially economic and technical to the maximum of its available resources, with a view
to achieving progressively the full realization of the rights recognized in the present covenant by all
appropriate means including particularly the adoption of legislative measures. It is further provided
that developing countries, with due regard to human rights and their national economy, may
determine to what extent they would guarantee the economic rights recognized in the Covenant to
non-nationals. This provision clearly recognizes that enjoyment of economic right depends on State
of economic development. That is why enforcement of such rights through Courts is not possible.

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Indian Constitution also maintains a clear and well marked distinction between Civil and Political
Rights on the one hand and Economic, Social and Cultural Rights on the other. While Civil and
Political Rights are enshrined as Fundamental Rights in Part III of the Constitution, the rights of latter
category are contained in Part IV of the Constitution as Directive Principles of State Policy. While
Fundamental Rights are enforceable in Courts of law, Directive Principles of State Policy are not
enforceable by any Court. Article 13(1) provides that all laws in force in the territory of India
immediately before the commencement of the Constitution, in so far as they are inconsistent with
the provisions of Part III, shall, to the extent of the contravention, be void. Article 13(2) further
provides that State shall not make any law which takes away or abridges the rights conferred by Part
III and any law made in contravention of this clause shall, to the extent of the contravention, "be
void". Thus Fundamental Rights are limitations on the executive and legislative powers of the State.
On the other hand, as regards Directive Principles of State Policy contained in Part N of the
Constitution, Article 37 provides that provisions contained in this Part (i.e. Part IV) shall not be
enforceable by any Court. However, the latter part of Article adds, "but the principles therein laid
down are nevertheless fundamental for the governance of the country and it shall be the duty of the
State to apply these principles in making laws."
The object of directive principles is to establish a welfare State. It has been pointed out that there
are two aspects of the Directive Principles-

(i) The negative aspect; and

(ii) the positive aspect.
As part of the negative aspect it is emphasized that the violation of a directive principle does not
entitle a citizen to seek mandatory relief against the State. For example, in Kesavanand Bharti v.
State of Kerala, Sikri, C. J., observed that directive principles are not justiciable and cannot be
enforced by any Court. The Courts could not, for instance, issue a writ of mandamus directing the
State to provide adequate means of livelihood to every citizen, or that the ownership and control of
the material resources of the community be so distributed as best to sub serve the common good or
that there should be equal pay for equal work for both men and women.

In later decisions, however, the positive aspect has been emphasized. These cases attach more
importance to the latter part of Article 37. For example, in Chandra Bhawan Boarding, Bangalore v.
State of Mysore, K. S. Hegde, J., speaking for the Full Bench observed that it is a fallacy to think that
in our Constitution there are rights and not duties. While rights conferred under Part III are
fundamental, the directive principles given in Part IV are fundamental in the governance of the
country. They are complimentary to each other and that there is no conflict between them. The
provisions of Part IV enable the legislature and the Government to impose duties on the citizens. The
provisions are deliberately made elastic because the duties "to be imposed on the citizens depend
on the extent of which the directive principles are implemented. The mandate of the Constitution is
to build a welfare society in which justice, social, economical and political shall inform all institutions
of our national life.

(3) Human Rights for all and Human Rights for citizens only.
The Universal Declaration of Human Rights proclaim the human rights and fundamental freedoms
for 'everyone' and distinction is mad between a 'person' and a 'citizen'. The same pattern is followed
by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
and throughout the Convention the terms 'everyone' and 'no one' have been used. In the
International Covenant on Civil and Political Rights (1966) generally the same pattern has been

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followed, and the terms 'everyone' 'no one' 'All persons' etc. have been generally used but in Article
25 relating to right to take part in the conduct of public affairs, to vote and to have access to public
service in his country, the term "every Citizen" has been used. Obviously because of the nature of
the right contained in Article 25, the term" All persons' or "Everyone" could not be used.

The Indian Constitution has classified Fundamental Rights into two categories :
[i] Fundamental Rights which are available to citizens only and

[ii] Fundamental Rights available to all persons riding within the territory of India for the time being
and subject to its jurisdiction. The first category of Fundamental rights which are available to citizens
only are:
[i] Article 15 relating to prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth;
[ii] Article 16 relating to equality of opportunity for all citizens in matters of public appointment.

(iii) Article 19 relating to Protection of rights -

( a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or union;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) to practise any profess, to carryon any occupation trade or business;

(iv) Article 29 relating to protection of interest of minorities.
The Second category of Fundamental Rights are comprised of the remaining fundamental rights
which use the word 'person',
In Chairman, Rai/way Board v. Mrs. Chandrina Das, the Supreme Court aptly observed:

The Fundamental Rights are available to all the "citizens" of the country but a few of them are also
available to "persons" while Article 14 which guarantees equality before law or equal protection of
laws within the territory of India is applicable to "person" which would also include the 'citizens" of
this country and non-citizens, both.

Article 20 guarantees right to protection in respect of conviction for offences. Article 21 guarantees
rights to life and personal liberty while Article 22 guarantees right to protection against arbitrary
arrest and detention. Those are wholly in consonance with Articles 3 to 7 and Article 9 of the
Universal Declaration of Human Rights.

The word "Life" has also been used prominently in the Universal Declaration of Human Rights (Art.
3). The Fundamental Rights under the Constitution are almost in consonance with the Rights
contained in the Universal Declaration of Human Rights as also the Declaration and the Covenants of
Civil and Political Rights and the Covenants of Economic, Social and Cultural Rights, to which India is
a party having ratified them as set out by the Supreme Court in Kubic Darusz v. Union of India, That
being so, since "Life" is also recognized as basic human right in the Universal Declaration of Human
Rights, 1948; it has to have the same meaning and interpretation as has been placed on that word by

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the Supreme Court in its various decisions relating to Article 21 of the Constitution. The meaning of
the word "life" cannot be narrowed down. According to the tenor of the language used in Article 21
it will be available not only to every citizen of this country but also to a "person" who may not to a
citizen be the country.

Further, even those who are not citizens of this country and come here merely as tourists or in any
other capacity will be entitled to the protection of their lives in accordance with the constitutional
provisions. They also have a right to. "Life" in this country thus they also have the right to live, so
long as they are here, with human dignity, just as the State is under an obligation to protect the life
of every citizen in this country, so also the State is under an obligation to protect the life of persons
who are not citizens.

In this case a Bangladesi woman was gang-raped by Railway Employees at Railway premises. The
High Court allowed compensation inter alia, to her for having been gang-raped upholding the
decision of the High Court, the Supreme Court held that as a national of another country, she could
not be subjected to a treatment which was below the dignity nor could she be subjected to physical
violence at the hands of Government employees who outraged her modesty. The right available to
her under Article 21 was thus violated. Consequently the State was under Constitutional liability to
pay compensation to her. The Judgment passed by the Calcutta High Court, therefore, allowing
compensation to her for having been gang-raped, cannot be said to suffer from any infirmity.

What is true of the Fundamental Rights is also true of the Directive Principles of State Policy
contained in Part IV of the Constitution. Article 39 (a) and Article 44 are for the citizens only. The
remaining articles generally use the word 'people'.

(4) Justiciable and Non-Justiciable Human Rights and Relative Importance

of Parts III and IV.-
Yet another classification made under Indian Constitution is that of justiciable and non-justiciable
human rights and it has been briefly referred to earlier. While Fundamental Rights are justiciable in
Courts of law, Directive Principles of State Policy are not enforceable in any Court. The Fundamental
Rights comprise mainly of the Civil and Political Rights and there is no dispute about their
enforceability. The Directive Principles of State Policy which comprise of economic, social and
cultural rights are like their counterparts in International Instruments on Human Rights are not
enforceable, in any Court. Before Kesavanand Bharti v. State of Kerala) only this negative aspect of
the Directive Principles was generally emphasized. Since the decision in Kesavanand Bharti's case, it
has been recognized and stressed that there is also an positive aspect. In this famous case, Shelat
and Grover, JJ. observed that our Constitution makers did not contemplate any disharmony between
the fundamental rights and the directive principles. They are meant to supplement one another.
Parts III and IV which embody the Fundamental Rights and Directive Principles of State Policy
respectively have been described as the conscience of the Constitution. Further, while most
cherished freedoms and rights have been guaranteed, the Government has been laid under a
solemn duty to give effect to Directive Principles. Both Parts III and IV which embody them have to
be balanced and harmonised-then alone the dignity of the individual can be achieved. It was to give
effect to the main objectives in the Preamble that Parts III and IV were enacted.
Hegde and Mukherjea, JJ., also pointed out that the Directive Principles embodied in Part IV of the
Constitution or at any rate most of them are as important as the duties of the individuals. Therefore,
to implement the duties imposed on the State under Part IV, it may be necessary to abridge in
certain respects the rights conferred on citizens under Part III. Directive Principles and Fundamental
Rights mainly proceed on the basis of Human Rights. Representative democracies will have no

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meaning without economic and social justice to the common man. This is a universal experience.
Freedom from foreign rule can be looked upon only as an opportunity to bring about economic and
social achievement. After all freedom is nothing but a chance to be better. It is this liberty to do
better that is the theme of the Directive Principles of State Policy in Part IV of the Constttution.

The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from
coercion or restriction by society to make liberty available for all. The purpose of Directive Principles
is to fix certain social and economic goals for immediate attainment by bringing about a non-violent
revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the
common man and to change the structure of the society. It aims at making the man free in a positive
sense; Part IV is designed to bring about the social and economic revolution that remained to be
fulfilled after independence. To ignore Part IV is to ignore the sustenance provided for in the
Constitution, the hopes held out to the nation, and the very ideals on which our Constitution is built.
Indeed the balancing between the individual rights and social need is a delicate one. This is primarily
the responsibility of the "State" and in the ultimate analysis of the Courts as interpreters of the
Constitution and the laws.

Chandrachud, Js., suggested a synthesis between the Fundamental Rights and the Directive
Principles of State Policy, by giving the former a place of pride and to the latter a place of
permanence. Together, not individually they form the core of the Constitution. Further, the basic
object of conferring freedoms on individuals is the ultimate achievement of the ideals set out in Part
IV. A circumspect use of the freedoms guaranteed by Part III is bound to sub serve the common good
but voluntary submission to restraint is a philosopher's dream. That is why, Article 37 enjoins the
State to apply the Directive Principles in making laws. The freedoms of the few have to be abridged
in order to ensure the freedoms for all. It is in this sense that Parts III and IV, together constituted
"the conscience of the Constitution". If the State fails to create conditions in which the Fundamental
freedoms could be enjoyed by all, the freedom of the few will be at the mercy of the many and then
all freedoms will vanish. In order, therefore, to prepare their freedom, the privileged few must part
with a portion of it.

A perusal of the above views expressed by Judges in Kesavanand Bharti's case shows a discernible
trend towards the positive aspect of the Directive Principles. Besides its significance in its own rights
value of Directive Principles has been recognized in interpretation of the various provisions of the
Constitution. It is also evident that whenever necessary the scope of fundamental rights can be
adjusted so as to give effect to the Directive Principles.
Thus it is well settled that the Directive Principles are the very soul of the Constitution and the
Courts are enjoined to harmonise Part III and Part IV of the Constitution as they are parts of a single
constitutional document. Indeed Part III and Part IV together form "the conscience of the
Constitution".
It may also be noted that while Fundamental Rights constitute the individual rights of the people,
Directive Principles constitute the "Collective human rights of the people" thereby inspiring the
Courts to indirectly ensure their implementation by the State, Rajendran v. State of Tamil Nadu, so
as to achieve the object of establishing a "welfare State"- Laxmi v. State of U.P, within the
framework of the Constitution.

Reference may also be made here to the Constitution (Twenty-fifth Amendment) Act, 1971 which
brought about a revolutionary change in respect of the relative significance of the Fundamental
Rights and Directive Principles. Reversing the decisions in Shankari Prasad Singh Deo v. Union of

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India and Sajjan Singh v. State of Rajasthan, it was held in I. C. Golaknath v. State of Punjab, that the
Parliament cannot, under Article 368, amend the Constitution so as to take away or abridge the
fundamental rights. Moreover, amendment of the Constitution is "law" within the meaning of Article
13(2) and as such is subject to Part III of Constitution. Therefore, the Constitution (Twenty-fifth
Amendment) Act, 1971 introduced a new Article, i.e. Article 31- C, which provided that
notwithstanding anything contained in Article 13, no law giving effect to the policy of the State
towards securing the principles specified, in clause (b) or clause (c), Article 39 (of Part IV) shall be
deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the
rights conferred by Article 14 or Article 19 or Article 31. It further provided that no law containing a
declaration that it is for giving effect to such policy shall be called in question in any Court on the
ground that it does not give effect to such policy. Thus it sought to grant complete immunity to a law
enacted to give effect to Article 39(b) and (c) notwithstanding it took away or abridged fundamental
rights contained in Article 14 or Article 31 of Part III.
In Kesavanand Bharti v. State of Kerala, Golak Nath's, case was overruled and the first part of Section
3 of the 25th Amendment (1971) of the Constitution was held valid. However, the second part of
Section 3, namely, "no law containing a declaration that it is for giving effect to such policy shall be
ca1led in question in any Court on the ground that it does not give effect to such policy" was held
invalid. In effect, while the Special Bench held that a law giving effect to the directive principles
contained Articles 39(b) and (c) shall prevail even though it violated fundamental rights contained in
Article 14 or Article 19 or Article 31 but it retained. rather asserted, the power of judicial review over
the question as to whether such a law really gave effect to the policy contained in the said directive
principles. This was indeed the triumph of the Directive Principles of State Policy.
But being emboldened and encouraged with this triumph, the Government proceeded further ahead
and sought to clinch the issue for once and for all in favour of the Directive Principles. Therefore,
Article 31-C was once again amended by the Constitution (Forty-second Amendment) Act, 1976 and
through its Section 4 substituted the words "all or any of the principles laid down in Part IV" in place
of the words "The principles specified in clause (b) or Clause (c) of Article 39 with effect from 3-1-
1977. In Minerva Mills Ltd. v. Union of India, the Full Bench of the Supreme Court by majority (of 4
Judges) held that Section 4 of the 42nd Amendment (1976) of the Constitution is beyond the
amending power of the Parliament as it is void since it damages the basic or essential features of the
Constitution and destroys its basic structure by a total exclusion of challenge to any law on the
ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14
or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards all or
any of the principles laid down in Part IV of the reasons for this decision were given later on.
Explaining the reasons for the above decision, Chandrachud, C. J. (for himself and for Gupta, Untallia
and Kailasam, JJ.) observed that since the Constitution has conferred a limited amending power on
the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very
power into an absolute pow r. Indeed, a limited amending power is one of the basic features of our
Constitution and, as such, the limitations of that power cannot be destroyed- Minerva Mills Ltd. v.
Union of India. Part III and Part IV together form the core of commitment to social revolution and
the conscience of the Constitution. Further, just as the rights, conferred by Part III would be without
a radar and a compass it they were not geared to an ideal. Similarly the attainment of ideals set out
in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is
human freedom: The goals set out in Part IV have, therefore, to be achieved without the abrogation
of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the
core of our Constitution and combine to form its conscience. Anything that destroys the balance

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between the two Parts will ipso facto destroy an essential element of the basic structure of the
Constitution."

In Sanjeeva Coke Manufacturing Co. v. M/s. Bharat Coking Coal Ltd.,however, misgivings were
expressed about the decision in the Minerva Mills case. it was pointed out by Chinnappa, J., that in
that case no question regarding the Constitutional validity of Section 4 of the Constitution (Forty-
second Amendment) Act, 1976 arose for consideration. Moreover, the question of the Constitutional
validity of Article 31-C had already been concluded by the decision of the special Bench of the
Supreme Court in Kesavanand Bharti's case.

It may be concluded that Article 31-C as and in the form it was then upheld in Kesavanand Bharti's
case is still valid and has not been disputed in Minerva Mill's case. It is submitted that the reasoning
given by Chandrachud, J. in Minerva Mill's case is sound and convincing. Both the Parts III and IV of
the Constitution must be conceded the same character and it is not possible to say that one is more
important and the other is less important. The Constitution has conferred a limited amending power
on the Parliament. The Parliament cannot go beyond that power. Besides this, to provide that a law
enacted to give effect to all or any of the directive principles will prevail even though it may be
violative of Article 14 or Article 19 will amount to nullifying the effect of Article 13(2). It will,
therefore, certainly destroy the delicate balance between Part III and Part IV which together form
the conscience of the Constitution. Nevertheless, the decisions in Minerva Mills case and Sanjeev
Coke Manufacturing Co., case have revived the controversy regarding the relative importance of
Fundamental Rights and Directive Principles and in order to satisfactorily resolve this controversy a
larger Bench of the Supreme Court should be constituted as when a suitable case regarding the
relative importance of Part III and Part IV comes before the Apex Court.
It may be noted that the implementation or enforcement procedure of the International
Instruments such as International Covenant on Economic, Social and Cultural Rights (1966) and the
European Social Charter (1961) simply constitutes of Reporting Procedure. The States Parties to
these International Instruments are simply required to submit reports about the measures (including
the legislative) they have adopted to give effect to the provisions of the Covenant or the Charter as
the case may be. There is no machinery to take a binding decision or force the State Parties to
implement them. As compared to this, the position of Directive Principle of State Policy contained in
Part IV of the Constitution is far better and stronger. Even though not justiciable, Article 37 of the
Constitution makes it clear that the principles laid down in Part IV are nevertheless fundamental in
the governance of the country and it shall be the duty of the State to apply these principles in
making laws.

As referred above a law to give effect to directive principles contained in Article 39 (b) and (c) cannot
be struck on the ground that it is violative of Fundamental Rights contained in Article 14 or Article
19. In other words, these specific directive principles have been given primacy over Fundamental
Rights contained in Article 14 or Article 19. Secondly, wherever necessary fundamental rights can be
amended to give effect to Directive Principles. Thirdly, directive principles can also be implemented
by being connected to one or more of Fundamental Rights, for example Directive Principle relative
to equal pay for equal work or right to adequate means of livelihood has been held to be part of
Article 21. Last but not the least, directive principles can also be implemented by enacting legislation
by a competent legislature having jurisdiction over the subject matter.

(5) Enumerated and Unenumerated Human Rights.-

Yet another classification of Human rights that is found in Indian Constitution is that of enumerated
and unenumerated human rights. The general practice is that in written Constitution Fundamental

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Rights are clearly enumerated. Indian Constitution has also followed this practice. But a pertinent
question arises whether such enumeration is exhaustive or can other rights be evolved out of the
existing fundamental rights.
In Satwant Singh Sawhney v. D. Ramarathan, it was held by the Supreme Court by majority that the
expression "personal liberty" in Article 21 of the Constitution includes the right to travel abroad and
no person can be deprived of that right except according to procedure established by law. In
Maneka Gandhi v. Union of India,80 the special Bench of the Supreme Court affirmed the above
decision. Delivering the judgment for himself and for Untwalia and Fazal Ali, JJ. (and Chandrachud, J.,
concuring), Bhagwati, J., observed that "the expression personal" liberty in Article 21 is of the widest
amplitude and it covers a variety of rights which go to constitute the personal liberty of man and
some of them have been raised to the status of distinct fundamental rights and give additional
protection under Article 19. Now, it has been held, by the Supreme Court in Satwant Singh's case
that personal liberty within the meaning of Article 21 includes within its ambit the right to go abroad
and consequently no person can be deprived of this right except according to procedure established
by law. Further, thus, no person can be deprived of his right to go abroad unless there is a law made
by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in
accordance with such procedure.
Krishna lyer, J., who also concurred with the views of Bhagwati, J., also agreed that "personal liberty"
includes within it the right to travel abroad. After quoting similar view from American judgments
which reached the same conclusion under the theory of emanation, Krishna Iyer, J. observed: "To
sum, personal liberty makes for worth of the human person. Travel makes liberty worthwhile. Life is
a terrestrial opportunity for unfolding personality, rising to higher States, moving to fresh woods and
reaching out reality which makes our earthly journey a true fulfilment not a tale told by an idiot to
full of sound and fury signifying nothing, but a fine frenzy rolling between heaven and earth. The
spirit of man is at the root of Article 21. Absent liberty then other freedoms are frozen. Thus
travelling abroad is a facet of personal liberty. It can be fettered or forbidden only by procedure
established by law.

Thus being influenced by the Ninth Amendment of the American Constitution, the Supreme Court of
India has also applied the theory of emanation and has availed distinct and independent rights out of
the existing fundamental rights. Following are some of the rights which have been evolved by being
parts of or having emanated from one or more of fundamental rights:

(i) Right to travel abroad- Satwant Singh Sawhney v. D. Ramarathnam, (Art. 21)
(ii) Right to privacy - Kharak Singh v. State of U.P.. [Arts. 21 and 19 (1) (d)]

It may be noted that right of privacy though a fundamental right, forming part of right to life
enshrined under Article cannot be taken to be an absolute right. The right of privacy may arise from
a particular specific relationship including matrimonial but when right to privacy has become a part
of public document.

(iii) Right against solitary confinement - Sunil Batra v. Delhi Administration, (Art. 21)
(iv) Right against bar felters (Right to human dignity)- Charles Gurumuk Sobhraj v. Delhi
Administration ; (Articles 21, 14 and 19)
(v) Right to free legal aid in a criminal trial; M. H. Hoskot v. Stale of Maharashtra, (Art. 21, Art. 39-A).

(vi) Right to Speedy Trial, Hussainara Khatoon v. Home Secretary, State of Bihar; (Art. 21)

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(vii) Rights against Handcuffing- Prem Shankar Shukla v . Delhi Administration, (Art. 21)
(viii) Right against Delayed execution, . V. Vatheeswaran v. State of Tamil Nadu: (Art. 21)

(ix) Right against Custodial violence, Sheela Barse v. State of Maharashtra (Art 21)
(x) Right against Public Hanging, Attorney General of India v. Lachma Devi ; (Art. 21)

(xi) Right to Health care or Doctor's Assistance, Pt. Parmanand Katara v. Union of India; (Art. 21)
(xii) Right to Shelter, M/s. Shantistar Builders v. Narayan Khiamlal Totame (Art. 21)

(xiii) Right to pollution free environment, M. C. Mehta v. Union of India: (Art. 21)
(xiv) Right to education of a child till he attains the age of 14, Unni Krishnan J. P. v. State of Andhra
Pradesh ; (Arts. 21,45 and 41)
(xv) The Freedom of Press, Express Newspapers v. Union of India: [Art. 19 (a)]

(xvi) Right to know, Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers,
Bombay, Pvt. Ltd; (Art. 21)

(xvii) Rights to compensation, Rudul Shah v. State of Bihar; (Art. 21)

(xviii) Right to Release and Rehabilitation of Bonded Labour, Neerja Chaudhry v. State of M.P.; (Art.
21, 23)
(xix) Right of Inmates of Protection Homes. Upendra Baxi (I) v. State of U. P., (Art. 21)

The above list is simply illustrative and by no means exhaustive. However it is clear from the above
discussion that under Indian Constitution, besides the Fundamental Rights which have been
enumerated under Part III of the Constitution, some other fundamental rights have been evolved by
being connected with or having emanated from one or more of fundamental rights.

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 3. Explain the writs available under the Constitution of India for
the protection of Human Rights.

Origin of Writs

The origin of writs can be drawn from the English Judicial system and were created with the
development of English folk courts-moots to the common law courts . The law of writs has its origin
from the orders passed by the King’s Bench in England. Writs were issued on a petition presented to
the king in council and were considered as a royal order. Writs were a written order issued in the
name of the king which acted as groundwork for the subsequent proceedings.

However, with different segments writs took various forms and names. The writs were issued by the
crown and in the interest of the crown but with the passage of time it became available for ordinary
citizens also. However a prescribed fee was charged for it and the filing of these writs were known as
Purchase of a writ.

Historical Background
The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme Court was
established at Calcutta. The charter also established other High courts and these High Courts had
analogous power to issue writs as successor to the Supreme Court. The other courts which were
established subsequently did not enjoy this power. The writ jurisdiction of these courts was limited
to their original civil jurisdiction which they enjoyed under section 45 of the Specific Relief Act, 1877.

Writs

Certiorari
Certiorari is a Latin term being in the passive form of the word ‘Certiorare’ meaning to inform. It was
a royal demand for information. Certiorari can be described as “one of the most valuable and
efficient remedies.” Certiorari is one of the five prerogative writs adopted by the Indian Constitution
under Article 226 which would be enforced against the decisions of the authority exercising judicial
or quasi judicial powers. Such powers are exercised when the authorities have failed to exercise the
jurisdiction though vested in it or failed to exercise the jurisdiction though vested on him or to
correct the apparent error on the face of record or there is violation of the principle of natural
justice. An instance showing the certiorari powers was exercised by the Hon’ble Supreme court in
A.K.Kraipak v. Union of India, where the selection was challenged on the ground of bias. The
Supreme Court delineated the distinction between quasi judicial and administrative authority. The
Supreme Court exercising the powers issued the writ of Certiorari for quashing the action.

Prohibition
The writ of Prohibition is issued by the court exercising the power and authorities from continuing
the proceedings as basically such authority has no power or jurisdiction to decide the case.
Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying principle is
that ‘prevention is better than cure .’ In East India Commercial Co. Ltd v. Collector of Customs , a writ

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of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a
proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or
contrary to the laws of the land, statutory or otherwise.

Mandamus

Mandamus is a judicial remedy which is in the form of an order from a superior court to any
Government agency, court or public authority to do or forbear from doing any specific act which that
body is obliged to do under the law . The writ of mandamus is issued whenever the public
authorities fail to perform the statutory duties confirmed on them . Such writ is issued to perform
the duties as provided by the state under the statute or forbear or restrain from doing any specific
act. The first case reported on the writ of mandamus was the Middletone case in 1573 wherein a
citizen’s franchise was restored. The writ of mandamus can be issued if the public authority vested
with power abuses the power or acts mala fide to it. In Halsbury’s Laws of England , it is mentioned
that,
“As a general rule the order will not be granted unless the party complained of has known what it
was required to do, so that he had the means of considering whether or not he should comply, and it
must be shown by evidence that there was a distinct demand of that which the party seeking the
mandamus desires to enforce and that that demand was met by a refusal.”

Quo Warranto
Quo Warranto means “by what warrant or authority”. Quo Warranto writ is issued against the
person of public who occupies the public seat without any qualification for the appointment. It is
issued to restrain the authority or candidate from discharging the functions of public office.
In University of Mysore v. Govinda Rao,12 the Supreme Court observed that the procedure of quo
Warrato confers the jurisdiction and authority on the judiciary to control executive action in making
the appointments to public offices against the relevant statutory provisions; it also protects a citizen
being deprived of public office to which he may have a right.

Habeas Corpus
The Latin term Habeas Corpus means ‘have the body’. The incalculable value of habeas corpus is that
it enables the immediate determination of the right of the appellant’s freedom ”. The writ of Habeas
Corpus is a process for securing liberty to the party for illegal and unjustifiable detention. It objects
for providing a prompt and effective remedy against illegal restraints. The writ of Habeas Corpus can
be filled by any person on behalf of person detained or by the detained person himself. It is a judicial
order issued by Supreme Court or High Court through which a person confined may secure his
release. The writ of Habeas Corpus can be filed by any person on behalf of the other person.

In Icchu Devi v. Union of India, the Supreme Court held that in a case of writ of Habeas corpus there
are no strict observances of the rules of burden of proof. Even a post card by any pro bono publico is
satisfactory to galvanize the court into examining the legality of detention.

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In A.D.M. Jabalpur v. Shivakant Shukla, it was observed that “the writ of Habeas Corpus is a process
for securing the liberty of the subject by affording an effective means of immediate relief from
unlawful or unjustifiable detention whether in prison or private custody. By it the High Court and the
judges of that court at the instance of a subject aggrieved command the production of that subject
and inquire into the cause of his imprisonment. If there is no legal justification for that detention,
then the party is ordered to be released.”

# Application of the Writ of Certiorari

The writ of Certiorari is basically issued against the statutory bodies exercising judicial or quasi
judicial powers. Such writ is issued against the authorities namely the government and the courts or
other statutory bodies who have power to determine and decide the lis between the parties. In
deciding such issues if the decision making order is passed without any authority or has passed the
order in exercise of such authority or has committed an error of law and facts the high court is
empowered to correct such error of the lower court or government authorities. Certiorari may apply
when the administrative or executive authority fails to observe their duty to act fairly with respect to
the administrative functions. The writ of Certiorari may also be issued against a subordinate tribunal
even if the decision impugned is pronounced. A leading case of Ryots of Garabandho v. Zamindar of
Parlakimedi, was the first decision on the writ of Certiorari.

# Application of the Writ of Mandamus

The writ of mandamus is ordered when the statutory authorities who entrusted with the duties fail
to discharge its obligatory duty. It may be applied when the government authorities vested with
absolute powers fail to perform their administrative and statutory duties. In Ratlam Municipal
Council v. Vardichand, on account of the public nuisance created in the area by the corporation in
not maintaining the drainage system and the dirty water stinking had clogged around which
obviously created nuisance at the hands of municipality for not discharging the duties under the act.
As a result the residents of Ratlam municipality moved the Sub-divisional magistrate under section
133 of Code of Criminal Procedure, 1973 for abatement of nuisance and the court issued the
directions that, “Judicial discretion when facts for its exercise are present has a mandatory import.
Therefore when the Sub-Divisional Magistrate, Ratlam, has before him information and evidence
which disclose the presence of public nuisance, considers it lawful to remove such obstruction. This
is a public duty implicit in the public power to be exercised on behalf of the public and is pursuant to
public proceeding.”

Lord Denning observed:

“In my opinion every genuine complaint which is worthy of investigation by the committee of
investigation should be referred to that committee. The Minister is not at liberty to refuse it on
grounds which are arbitrary or capricious. Not because he has a personal antipathy to the compliant
or does not like his political views. Nor on any other irrelevant ground... It is said that the decision of
the Minister is administrative and not judicial. But that does not mean that he can do as he likes,
regardless of right or wrong. Nor does it mean that the Courts are powerless to correct him. Good
administration requires that complaints should be investigated and that grievance should be

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remedied. When parliament has set up machinery for that very purpose, it is not for the Minister to
brush it on one side. He should not refuse to have a complaint investigated without good reason...

But it is said that the Minister is not bound to give any reason at all. And that, if he gives no reason,
his refusal cannot be questioned. So why does it matter if he gives bad reason? I do not agree. This is
the only remedy available to a person aggrieved… Else why did it set up a committee of
investigation? Minister… would at least have good reasons for refusal; and if asked, he should give
them. If he does not do so, the court may infer that he has no good reasons. If it appears to the
Court that the Minister has been, or must have been, influenced by extraneous considerations which
ought not to have influenced him or, conversely, has failed, or must have failed, to take into account
considerations which ought to have influenced him. The court has power to interfere; it can issue a
mandamus to compel him to consider the complaint properly.”

# Application of the Writ of Prohibition

The writ of Prohibition is issued essentially against the government or its authorities when they are
not conferred with the power or jurisdiction to decide the dispute. The court by virtue of this power
restrains the authority to exercise such powers which are not given to the authority.

# Application of the Writ of Quo Warranto

The high Court would exercise the power of Quo Warranto against the public authority or
government who acts contrary to the provisions of the statute and restrains the authority or public
servant from usurping the public office on account of lack of qualification. It is a means of asserting
sovereign right. In Sonu Sampat v. Jalgaon Borough Municipality , “If the appointment of an officer is
illegal, everyday that he acts in that office, a fresh cause of action arises and there can be therefore
no question of delay in presenting a petition for quo warranto in which his very, right to act in such a
responsible post has been questioned.”

# Application of the Writ of Habeas Corpus

The writ of Habeas Corpus is a writ issued in order to protect the liberty and freedom which is
conceived to be very vital. It is issued against the wrongful detention or confinement through the
police authority. By virtue of this writ the police authorities or other such statutory authorities are
empowered to bring the custody of the person who has been wrongfully detained by the court of
law. In the case of State of Bihar v. Kameshwar Singh it was stated that, the writ of Habeas Corpus is
in the nature of an order for calling upon the person who has detained or arrested another person to
produce the latter before the court, in order to let court know on what ground he has been confined
and to set him free if there is no legal justification for the imprisonment . One of the telling ways in
which the violation of that right can reasonably be prevented and due compliance with the mandate
of article 21 secured, is to mulct its violators in the payment of monetary compensation.

Conclusion

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The prerogative powers of writ jurisdiction conferred by the constitution for judicial review of
administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion
however should be exercised on sound legal principles. In this respect it is important to emphasis
that the absence of arbitrary power is the first essential of the rule of law upon which the whole
constitution system is based. In a system governed by rule of law when discretion is conferred upon
the executive authorities it must be based on clearly defied limits. Thus the rule of law from this
point of view means that the discretion or the decision must be based on some principles and rules.
In general the decision should be predictable and citizens should know where he is. If a decision is
taken not on the basis of any principle or rules then such decision is arbitrary and is taken not in
accordance with the rule of law.

The law has reached its finest moments stated Duglas, C.J. in United States v. Wunderlich when it
has freed man from the shackles of unlimited discretion. The man has suffered on account of
absolute discretion. The decision should be guided by rule of law and it should not be based on
whims, fancy and humour.
The Constitution is the law of the laws and nobody is supreme. Even the judges of Supreme Court
are not above law and they are bound by the decisions which are the law of the land declared by
them under the writ petitions. Thus, the constitutional remedies provided under the constitution
operate as a check and keeps the administration of government within the bounds of law.

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 4. Explain the powers relating to inquiries into complaints and
procedure for dealing with complaints of National Human Rights
commission

Powers relating to inquiries.-

While inquiring into complaints under this Act, the Commission possesses all the powers of a Civil
under the Code of Civil Procedure, 1908 (5 of 1908), and in particular in respect of the following
matters, namely :-
(a) summoning and enforcing the attendance of witnesses and examining them on oath ;

(b) Discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any Court or office;
(e) issuing commissions for the examination of witnesses or documents;

(f) any other matter which may be prescribed.

The Commission also has power to require any person, subject to any privilege which may be
claimed by that person under any law for the time being in force, 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 enquiry and any person so required shall be deemed to be legally bound to furnish
such information within the meaning of Sections 176 and 177 of the Indian Penal Code (45 of 1860).

The Commission or any other officer not below the rank of a Gazetted Officer, especially 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 subject to the provisions of Section
100 of the Code of Criminal Procedure, 1973 (2 of 1974) in so far as it may be applicable.
It is also provided that the Commission shall be deemed to be a Civil Court and when any offence as
is described in Section 175 (omission to give notice or information to public servant by person legally
bound to give it), Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code (45
of 1860) is committed in view or presence of the Commission, the Commission may, after recording
the facts constituting the offence and statement of the accused as provided for in the code of
Criminal Procedure, 1973 (2 of 1974) forward the case to a Magistrate having jurisdiction to try the
same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint
against the accused as if the case has been forwarded to him under Section 346 of the Code of
Criminal Procedure, 1973.

Further, every proceeding before the Commission shall be deemed to be a judicial proceeding within
the meaning of Sections 193 and 228, and for the purposes of Section 196 of the Indian Penal Code
(45 of 1860) and the Commission shall be deemed to be a Civil Court for all the purposes of Section
195 (which deals with Prosecution for contempt of lawful authority of public servants, for offences
against public justice and for offences relating to documents given in evidence) and Chapter XXVI of
the Code of Criminal Procedure, 1973 (2 of 1974).

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By the Protection of Human Rights (Amendment) Act, 2006 (No. 43 of 2006) following has been
inserted after sub-section (5).

(6) Where the Commission considers it necessary or expedient so to do, it may by order, transfer any
complaint filed or pending before it to the State Commission of the State from which the complaint
arises for disposal in accordance with the provisions of the Act: Provided that such complaint shall
be transferred under the same is one respecting which the State Commission has jurisdiction to
entertain the same.
(7) Every complaint transferred under sub-section (6) shall be dealt with and disposed of by the State
in the same way as if it were initially filed before it.
The powers of the Commission are set out under Section 13. A pertinent question arises as to
whether the Commission can review its earlier order passed. In Grindlays Bank v. Central Govt.
Industrial Tribunal, 50 the High Court observed:

"The expression 'review' is used in two distinct senses, namely,

(1) a procedural review which is either inherent, or implied in a Court or Tribunal to set aside a
palpably erroneous order passed under a misapprehension, by it, and
(2) a review on merits when the error sought to be corrected is one of law and is apparent on the
face of the record.

It is in the latter sense that the court in Narshi Thakershi's case held that no review lies on merits
unless a statute specifically provides for it, obviously when a review is sought due to a procedural
defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to
prevent the abuse of its process, and such power inheres in every Court or Tribunal."

Following the above decision, the Bombay High Court in State of Maharashtra v. San Shobha Vitthal
Kotle, held that review is not permissible if it sought on merits. Moreover if the Commission orders
that it has no jurisdiction to entertain complaint, then second complaint on same cause of action is
not maintainable. Thus where Commission holds that it has no jurisdiction to entertain the
complaint no further directions thereon can be issued. In the instant case, a teacher complained that
his service had been terminated in violation of human rights which was based on right created under
statute and the statute providing mechanism for redressal. The Bombay High Court further held that
once a petitioner comes before a Commission complaining of violation of human rights based on a
right created under a statute and the statue itself provides a mechanism for redressal by way of
appeal, revision, or otherwise, the Commission ordinarily should not entertain a complaint and
direct the parties to pursue their remedy under the statute.
In K. Murugesh v Registrar Human Rights Commission, Tamil Nadu and others, the Madras High
Court held that it is obvious that the enquiry before the Commission cannot be equated with the full
fledged criminal trial under the Code of Criminal Procedure. From the perusal of Section 13 of the
Protection of Human Rights Act, it is clear that what the Commission had to follow is a fair
procedure. In the instant case, the petitioner was given an opportunity to cross-examination the
complainant on the basis of the complaints. The Madras High Court held that in view of the following
the aforesaid procedure the Commission was only giving the writ petitioner an opportunity to cross-
examine the complainant. 0 by giving an opportunity to the petitioner, the Commission cannot be
said to have acted unfairly against the interest of anyone.

Investigation.

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The Commission may, for the purpose of conducting any investigation pertaining to the inquiry,
utilise the services of any officer or investigation agency of the Central Government or any State
Government with the concurrence of the Central Government or the State Government, as the case
may be. For the purpose of investigating into any matter pertaining to the inquiry, any officer or a I y
who e services are utilised under Section 14 (1) noted above, may, subject to the direction and
control of the Commission,-

(a) summon and enforce attendance of any person and examine him;
(b) require the discovery and production of any document;

(c) requisite any public record or copy thereof from any office.57
But it may b n t d here that no statement made by a person in the course of giving evidence before
the Commission shall subject him to, or be used against him in any civil or criminal proceeding
except a prosecution for giving false evidence by such statement his is however, subject to the
proviso that if the statement-
(a) is made in reply to a question which he is required by the Commission to answer; or

(b) is relevant to the subject-matter of the inquiry, then it may be used against him in any civil or
criminal proceeding.

The officer or agency whose services are utilized under Section 14 (1) noted above, shall investigate
into any matter pertaining to the inquiry and submit a report thereon to the Commission within such
period as may be specified by the Commission in this behalf. The Commission shall satisfy about the
correctness and the facts stated and the conclusion, if arrived at, the said report submitted by the
officer or agency and for this purpose the Commission may make such inquiry (including the
examination of the person or persons who conducted or assisted in the investigation), as it thinks fit.
The Commission may also investigate cases on the direction of the High Court or the Supreme Court.
For example in Association of Dead People and another v. State of U.P. and others, matters related
to poor agriculturists, who are on the borderline of the poverty, their agricultural holding being the
only source of livelihood. For any person who has been kicked out of his agricultural land, the matter
affects life and liberty both. Deprivation of the source of livelihood is now well recognised as
violation of Article 21 of the Constitution of India. This was held by the Allahabad High Court. The
High Court further held that the deprivation of this source of livelihood, and the manner in which it
has taken place is a matter which concerns human rights. This matter needs to be further
investigated, the like of which has been provided in the Protection of Human Rights Act, 1993 and
specially provided for under Section 14, because it was not one case or two or half dozen but it
concerned a large number of poor agriculturists and involved the ugly phenomenon of fabrication of
official records and collusion between land mafias and officials who possess these records.

In the circumstances, the High Court requested the two learned amicus curie to draw out a
statement of case for presentation before the National Human Rights Commission alongwith the
entire record of the entire proceedings. The statement of the case ought to be presented before the
National Human Rights Commission by the two learned amicus curie within six weeks.

Where the Commission acts on an enquiry report submitted by State Authority which had already
afforded reasonable opportunity to petitioner during enquiry, no notice or chance of being heard is
required to be given. In such a case, the provisions of Sections 14 and 16 are not attracted. This has

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been held by Jharkhand High Court in Shiv Chandra Prasad Singh v. The State of Jharkhand. In such a
case, the action of the National Human Rights Commission being not illegal, cannot be quashed.

Procedure for dealing with complaints.

Regulation 8 of the National Human Rights Commission (Procedure) Regulations, 199465 lays down
the following procedure for dealing with complaints of alleged violation of 'human rights' :-
(1) All complaints in whatever form received by the Commission shall be registered and assigned a
number and placed for admission before a Bench of two Members constituted for the purpose not
later than two weeks of receipt thereof. Ordinarily, complaints of the following nature are not
entertainable by the Commission:
(a) in regard to events which happened more than one year before the making of complaints ;

(b) with regard to matters which are sub-judice;

(c) which are vague, anonymous or pseudonymous;

(d) which are of frivolous nature; or

(e) those which are outside the purview of the Commission.

(2) No fee is chargeable on complaints.

(3) Every attempt should be made to disclose a complete picture of the matter leading to the
complaint and the same may be made in English or Hindi to enable the Commission to take
immediate action. To facilitate the filing of the complaints, to Commission the Commission shall,
however, entertain complaints in any language included in Eighth Schedule of the Constitution. It
shall be op n to the Commission to ask for further information and affidavits to be filed in support of
allegations whenever considered necessary.

(4) The Commission may, in its discretion, accept telegraphic complaints and complaints conveyed
through Fax.

(5) The Commission shall have the power to dismiss a complaint in limine.
(6) Upon admission of a complaint the Chairperson/Commission shall direct whether the matter
would be set down for inquiry by it or should be investigated into.
(7) On every complaint on which a decision is taken by the Chairperson/ Commission to either hold
an inquiry or investigation, the Secretariat shall call for report/comments from the concerned
Government/authority giving the latter a reasonable time therefor.

(8) On receipt of the comments of the concerned authority, a detailed note on the merits of the case
shall be prepared for consideration of the Commission.

(9) The directions and recommendations of the Commission shall be communicated to the
concerned Government/authority and the petitioner as provided for in Sections 18 and 19 of the
Act.
(10) The Commission may, in its discretion afford a personal hearing to the petitioner or any other
person on his behalf and such other person or persons as in the opinion of the Commission should
be heard, for appropriate disposal of the matter before it and, where necessary call for records and
examine witnesses in connection with it. The Commission shall afford a reasonable hearing,
including opportunity of cross-examining witnesses, if any, in support of the complaint and leading

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of evidence in support of his stand to a person whose conduct is enquired into by it or where in its
opinion the reputation of such person is likely to be prejudicially affected.

(11) Where investigation is undertaken by the team of the Commission or by any other person under
its direction, the report shall be submitted within a week of its completion or such further time as
the Commission may allow. The Commission may, in its discretion, direct further investigation in a
given case if it is of the opinion that investigation has not been proper or the matter requires further
investigation for ascertaining the truth or enabling it to properly dispose of the matter. On receipt of
the report, the Commission on its own motion, or if moved in the matter, may direct inquiry to be
carried by it and receive evidence in course of such inquiry.
(12) The Commission or any of its Members when requested by the Chairperson may undertake
visits for and on-the-spot study and where such study is undertaken by one or more Members, a
report thereon shall be furnished to the Commission as early as possible.

Steps during and after inquiry.

After the inquiry under the Act is complete the Commission may take any of the following steps ;-
(1) Where the enquiry discloses the commission of violation of human rights, or negligence in the
prevention of violation of human rights by a public servant, it may recommend to the concerned
Government or authority the initiation of proceedings for prosecution or such other action as the
Commission may deem fit against this concerned person or persons;
(2) Approach the Supreme Court or the High Court concerned for such directions, orders or writs as
that Court may deem necessary;
(3) Recommend to the concerned Government or authority for the grant of such immediate interim
relief to the victim or the members of his family as the Commission may consider necessary;
(4) Subject to the provision of clause (5), provide a copy of the inquiry report to the petitioner or his
representative;
(5) The Commission shall send a copy of its enquiry report together with its recommendations to the
concerned Government or authority and the concerned Government or authority shall, within a
period of one month, or such further time as the Commission may allow, forward its comments on
the report, including the action taken or proposed to be taken thereon, to the Commission;
(6) The Commission shall publish its enquiry report together with the comments of the concerned
Government or authority, if any, and the action taken or proposed to be taken by the concerned
Government or authority on the recommendations of the Commission.

In place of the old Section 18, the Protection of Human Rights (Amendment) Act, 2006 (No. 43 of
2006), has inserted the following new Section 18 ;

18. Steps during and fter inquiry.-The Commission may take any of the following steps during or
upon the completion of an inquiry held under this Act, namely;

(a) where the inquiry discloses the Commission of violation of human rights or negligence in the
prevention of violation of human rights or abetment thereof by a public servant, it may recommend
to the concerned Government or authority-
(i) to make payment of compensation or damages to the complainant or to the victim or the
members of his family or the commission may consider necessary;

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(ii) to initiate proceedings for prosecution or such other suitable action as the commission may deem
fit against the concerned person or persons;

(iii) to take such further action as it may think fit;

(b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as
the Court may deem necessary;
(c) recommend to the concerned Government or authority at any stage of the inquiry for the grant
of such immediate interim relief to the victim or the members of his family as the Commission may
consider necessary;

(d) subject to the provisions of clause (c) provide a copy of the inquiry report to the petitioner or his
representative;

(e) the commission shall send a copy of his inquiry report together with its recommendations to the
concerned Government or authority and the concerned Government or authority shall within a
period of one month, or such further time as the Commission may allow, 'forward its comments on
the report, including the action taken or proposed to be taken thereon, to the commission;

(f) the Commission shall publish its inquiry report together with the comments of the concerned
Government or authority if any, and the action taken or proposed to be taken by the concerned
Government or authority on the recommendations of the Commission.

It may be noted here that the National Human Rights Commission cannot take suo motu action
against judicial order. This was held by the Supreme Court in Ban Kanta Das v. State of Assam. The
Supreme Court held that the proceeding before the Commission were not in line with the procedure
prescribed under the Act. That being so, the recommendations, if any of the Commission are non
est. The Supreme Court therefore, set-aside the impugned order of the Commission. In this case
recommendation by Commission to commute death sentence was set aside. In U.P. Power
Corporation Ltd. and another v. National Human Rights Commission, death was caused due to
electrocution of deceased when he came in contact with live wire of 11,000 volt which had broken
from pole. Electrocution was caused due to negligence of the officials of Pow r Corporation. Since it
was the statutory duty of Power Corporation to maintain transmission line in such manner that
peoples lives are not exposed to danger. In such a case Human Rights Commission would have
jurisdiction to recommend compensation which it may consider necessary. In the instant case, the
Commission recommended compensation of Rs. 1,00,000.
Regulation 11 of the National Human Rights Commission (Procedure) Regulations, 1994 further
provides that report of follow-up action shall be submitted to the Commission at every subsequent
sitting indicating therein the present stage of action on each item on which the Commission had
taken a decision in any of its earlier meetings, excepting the items on which no further action is
called for.

It has been held by Gauhati High Court that where a fatal accident has taken place by falling into
uncovered bridge damages can be claimed by filing a writ petition which is a public law remedy but it
has also been extended to the realm of torts. Therefore, mandamus can be issued compelling State
Government to discharge its duty within the ambit of Section 18 of the Protection of Human Rights
Act, 1993.

Procedure with respect to armed forces.-

Section 19 of Protection of Human Rights Act, 1993 provides :-

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(1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of
human rights by members of armed forces, the Commission shall adopt the following procedure,
namely :-
(a) it may, either on its own motion or on receipt of a petition, seek a report from the Central
Government;
(b) after the receipt of the report, it may, either not proceed with the complaint or, as the case may
be, make its recommendations to that Government.
(2) The Central Government shall inform the Commission of the action taken on the
recommendations within three months or such further time as the Commission may allow.
(3) The Commission shall publish its report together with its recommendations made to the Central
Government and the action taken by that Government on such recommendations.
(4) The Commission shall provide a copy of the report published under sub-section (3) to the
petitioner or his representatives.

Matters Beyond the Jurisdiction of National and State Human Rights Commission.-
National Human Rights Commission cannot suo motu take action against a judicial order.
Recommendation by National Human Rights Commission to commute death sentence passed by
Supreme Court is non est law. This has been held by the Supreme Court in Ban Kania Das v. State of
Assam. The Supreme Court set aside the impugned order of commutation of death sentence to life
imprisonment and directed reconsideration of application filed by accused for commutation of
sentence.
Similarly, the Commission cannot assume the jurisdiction of High Court and Supreme Court and
cannot proceed to arrogate to itself powers under section 482 of Cr.P.C or Article 226. This has been
held by Punjab and Haryana High Court in Punjab State Civil Suppliers Corporation Ltd. v. Punjab
Human Rights Commission. In this case, FIRs were registered against the respondents for forcibly
lifting stock of paddy. The State Human Rights Commission recommended cancellation of FIRs on
complaint filed by respondents. The Punjab and Haryana High Court held that the order was passed
in flagrant disregard of Statutory powers. The impugned order of Commission recommending
cancellation of FIRs is liable to be quashed.

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 5. Explain the important provisions of protection of human rights
act of 1993.

Introduction.
In pursuance of a resolution of the General Assembly adopted in 1966, the Economic and Social
Council asked the Human Rights Commission of the U.N. to consider the question of creation of
National Commission of Human Rights to perform certain functions relating to the observance of the
International Covenant on Human Rights. This question was also considered by the Commission in
1970 and the Commission recommended that the question of establishment of National Commission
of Human Rights in each member State of the U.N. ought to be decided by each Government of the
member State keeping in view the traditions and institutions of each country. Since then the Human
Rights Commission has several times stressed the need of the creation of National Commission of
Human Rights in each member State. Vienna Declaration and Programme of Action adopted by the
Vienna Conference on Human Rights on June 25, 1993 recommended that every State ought to
provide an effective framework of machinery or institution to provide remedies in cases of violations
of human rights. It was after the said World Conference that several States including India have
established National Commissions of Human Rights to redress human rights grievances or violations.
Some western States and America have used human rights as an instrument of their policy even
though their own record of human rights, especially that of America, is far from satisfactory.
According to a weekly magazine published in China, America encourages other States to respect
human rights even though America has not yet ratified two International Covenants on Human
Rights (1966) and 15 other separate conventions on Human Rights including that on Right of the
Child. It deserves mention here that China and India have signed and ratified both the International
Covenants on Human Rights (1966). It may be noted here that America has signed International
Covenant on Civil and Political Rights (1966) only a few year ago. America has been found guilty of
even violating American Convention on Human Rights (1969). But despite this, the American
Congress has imposed sanctions several times on those States whose standard or record of human
rights is not as per American standard. America also pressurizes International Financial Institutions
which grant loans to not to give or grant loan or financial aid to such States.
So far as the question of compliance of rules of Universal Human Rights by America is concerned,
Americans argue that ratified convention will have the same effect as that of American Federal Laws
and that it will invalidate some of the' State laws which are inconsistent with it. Moreover, American
spokesmen contend that human rights are higher than sovereignty and are enforceable even beyond
the limits of national territories. Amnesty International has also confirmed that America is guilty of
violation of human rights and several examples of this can be cited in this connection. Yet America
claims to be the champion of human rights all over the world. Thus America's practices of human
rights is not only discriminatory but also uses human rights as an instrument to harass and even
coerce other States. While on one hand America criticizes India and China in respect of alleged
violations of human rights, it has so far adopted a liberal and biased attitude about human rights
violations in Pakistan even though Pakistan's record of human rights is not only unsatisfactory but
also deplorable.

The western countries and America, in particular, criticized India for violation of human rights by
Indian armed and security forces especially in the State of Jammu and Kashmir. Thou h it is now well
recognized that terrorism is a serious violation of human rights yet these countries especially
America never lost an opportunity to criticize India whenever Indian Security Forces sought to deal

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sternly with terrorists and ultras in Jammu and Kashmir, in North Eastern States and Andhra
Pradesh. In order to meet this criticism, apart from other reasons, India decided to establish a
National Commission of Human Rights for the redressal of grievances of human rights violations. On
28 September, 1993, the President of India promulgated an Ordinance which established a National
Commission of Human Rights. Thereafter, a Bill on human rights was pass d in the Lok Sabha on
December 18, 1993 to replace the Ordinance earlier promulgated by the President. This Bill received
the assent of the President on January 8, 1994 and was published in the Gazette of India,
Extraordinary, Part II , Section I, on January 10, 1994. Thus the Protection of Human Rights Act (No.
10 of 1994) came into force. But since the National Commission of Human Right has already been
established and certain acts in pursuance of the Ordinance had already been performed, Article 1 (3)
provided that the Act shall be deemed to have come into force on the 28th day of September, 1993.
Section 1 (2) provides that the Act extends to the whole of India provided that it shall apply to the
State of Jammu and Kashmir only in so far as it pertains to the matters relatable to any of the entries
enumerated in List I or List III in the Seventh Schedule to the Constitution applicable to that State.
The Preamble of the Act makes it clear that it is an Act to provide for the constitution of National
Human Rights Commission, Commissions in States and Human Rights Courts for better protection of
human rights and for matters connected therewith or incidental thereto .

Definition of 'Human Rights' under the Act.

Section 2 (d) of the Act defines human rights' as the rights relating to life, liberty, equality and
dignity of the individual gu rant d by the Constitution or embodied in the International Covenants
and enforceable by Courts in India. Thus for the purposes of the Act, 'human rights' are rights
relating to life, liberty, equality and dignity of the individual guaranteed in the Constitution or
embodied in the International Covenants and enforceable by Courts in India. Thus, the Act gives a
very narrow definition of 'human rights' and does not even include all the fundamental rights
guaranteed by the Constitution. It simply includes the fundamental rights relating to the life, liberty,
equalities and dignity guaranteed in the Constitution or embodied in International Covenants on
human rights. For example, it does not include fundamental rights of prohibition of employment of
children in factories etc. (Article 25). Protection of interests of minorities (Article 29), Right of
Minorities to establish and administer educational institutions. As regards the words "embodied in
the International Covenants and enforceable by Courts in India”, they certainly "widen the scope of
Human Rights (fundamental rights) enforceable by Courts in India. Human rights enforceable by
Courts in India can be divided into three categories :-
(i) Enumerated Fundamental Rights;

(ii) Other Fundamental Right; and

(iii) Unenumerated Rights.

The term 'Enumerated Fundamental Rights' means the human rights embodied in the International
Covenants on human rights, especially the International Covenant on Civil and Political Rights and
which are specified as Fundamental Rights in Part III of the Constitution. The term 'other
Fundamental Rights' means the human rights embodied in the International Covenants and
recognized as Fundamental Rights by Courts in India even though they have not been specified as
Fundamental Rights in Part III of the Constitution such as the right to privacy, right to travel abroad,
right to compensation etc. These have been discussed in detail in earlier chapter. The term
'Unenumerated Rights' means the human rights which have been enumerated in the International
Covenants but are neither enumerated as Fundamental Rights in the Constitution nor have been so

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far recognised as Fundamental Rights by Courts in India. One may, however, add that even
unenumerated rights may in future be recognized as Fundamental Rights in a particular case. For
example, in Vishaka v. State of Rajasthan, the three Judge Bench of the Supreme Court has
recognized the right of Gender Equality and guarantee against sexual harassment and abuse of
working women at the work places as emanating from Articles 14 and 21 of the Constitution. But
one such a right is recognized as a fundamental right emanating from existing Or specified
Fundamental Rights it ceases to be in the category of 'Unenumerated Rights' and comes in the
second category of Rights namely 'other Fundamental Rights'. But before such a right is included in
the definition of 'human right' a condition precedent is that it must be embodied in the International
Covenants. Since Section 2 (f) defines "International Covenants as the International Covenants on
Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights
adopted by the General Assembly of the United Nations on 16 December, 1966, the said right must
be embodied in these two International Covenants and not in any other International Convention on
Human Rights for the purpose of definition of 'human rights' as given under Protection of Human
Rights Act, 1993 (Act No. 10 of 1994).
In a recent case, T. Vellaiyan v. The Registrar, State Human Rights Commission, Chennai, it was
contended that right to life, liberty, equality and dignity includes the right to property, with respect
to which the petition was made. The court held that it was unable to extend the definition of
"human rights" to that extent to include the right to property also within the definition, particularly
when the Legislature explicitly omitted' the right to property from the definition of human rights.'
But the Supreme Court has held in P. T. Munichikkanna Reddy and others v. Revamma and others,
"The right of property is now considered to be not only a constitutional right but also a human
right." But as regards adverse possession, the Supreme Court added that intention to dispossess is
essential to prove adverse possession. Possession of adverse possessor must be hostile enough to
give rise to reasonable notice and opportunity to paper owner. Further, in the words of Supreme
Court, " ..... adverse possession is a right which comes into play not just because someone looses his
right to reclaim the property out of continuous possession and neglect but also on account of
possessor’s positive intent to dispossess. Therefore, it is important to take into a account before
stripping somebody of his lawful title, where there is an adverse possessor worthy and exhibiting
more urgent and genuine desire to dispossess and step into the shoe of the p per-owner of the
property. This test form the basis of decision in the instant case.

Reference may also be made to Supreme Court case, Tukaram Kana Joshi v. Maharashtra Industrial
Development Corporation the Supreme Court has recently held that the right to property is now
considered to be not only statutory right but also a human right. Though, it is not a basic feature of
the Constitutional or a fundamental right, human rights are considered to be in the realm of
individual rights, such as the right to health, the right to livelihood, the right to shelter and
employment etc. Now, however, human rights are gaining an even greater multi faceted dimension.
The right to property is considered very much to be a part of such new dimension.
In the case at hand, there has been no acquisition. The question that emerges for consideration is
whether, in a democratic body polity, which is supposedly governed by the rule of law, the State
should be allowed to deprive a citizen of his property, without adhering to the law. The matter
would have been different had the State pleaded that it has right, title and interest over the said
land. It, however, concedes to the right, title and interest of the appellant over such land and pleads
the doctrine of delay and laches as grounds for the dismissal of the petition/appeal.

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Further, a question then arises with respect to the authority or power under which the State entered
upon the land. It is evident that the act of State amounts to encroachment, to exercise of 'absolute
power' which in common parlance is also called the abuse of power or use of muscle power. To
further clarify this position, it must be noted that the authorities have treated the landowner as a
subject of medieval India, but not as a 'citizen' under the Constitution.
Lastly, depriving the appellants of their immovable properties was a clear violation of Article 21 of
the Constitution. In a welfare State, statutory authorities are bound, not only to pay compensation
but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of
their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to
indulge in anti-national activities as such sentiments would be borne to them on account of such ill-
treatment. Therefore, it is not permissible/human rights, under the garb of industrial development.
However, it may be noted that human rights are rights of human concerning to their life, liberty,
equality and dignity. The term 'human right' would therefore not apply to by Bombay High Court in
Maharashtra Housing and Development Authority v. Maharashtra State Human Rights commission.

As regards right to employment or work the Supreme Court observed in Air India Statutory
Corporation v. United Labour Union that right to employment in the absence of suitable legislation
cannot be placed in same footing as right to livelihood. Further the right to work becomes as much
fundamental right as right to life that would be once a person is appointed.
Following the above decision, the Bombay High Court in State of Maharashtra v. San Sobha Vithal
Kolte held that the right to work as fundamental right can only be considered as fundamental right in
those case where there is a legislative guarantee in the form of legislation. In the absence of right to
work being fundamental right, it would not fall within expression 'life' under Article 21 and if so
would not fall within the definition of Human Rights as set out under Section 2 (d) of the Act.

It may be noted here that 'human right' are rights of human relating to their life, liberty, equality and
dignity. The said term would not apply to individual rights of parties even against state arising under
contract. This was held by the Bombay High Court in Maharashtra Housing and Area Development
Authority v. Maharashtra State Human Rights Commission.

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

Apart from the Constitution for the protection and observance of human rights, enactment of the
Protection of Human Rights Act, 1993 is an important milestone and should be welcomed. However,
it cannot but be remarked that it is certainly a weak effort for it suffers from certain defects and
shortcomings. In the first place, there are certain ambiguities and impediments concerning the comp
t and autonomy of the National Human Rights Commission (NHRC). In its very first annual report for
the period ending on March 31, 1994, the Commission recommended the amendment of Sections
2(1) (d) and 2(1) (f), l1(l)(b) and 11(2) (together with Section 32), Section 13(1) (f), Sections 18, 30, 36
so as to remove ambiguities and impediments concerning its competence and autonomy of the
Commission. These recommendations were reiterated by the Commission in its annual report for the
year 1994-95 and the Commission even regretted that action had yet not been taken to give effect
to these recommendations and urged that measures be taken without further delay. Unfortunately
even this has proved insufficient to awaken the Government from its slumber. This attitude of the
Government is not conducive for the proper observance and protection of human rights in the
country.
The NHRC has set up an advisory committee under the Chairmanship of former Chief Justice of India,
A. M. Ahmadi to suggest revisions in the Protection of Human Rights Act, 1993.

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Secondly, the definition of "human rights" given in Section 2(d) is very narrow. As pointed earlier, it
is not proper to limit the human rights only to the rights relating to life, liberty, equality and dignity
of the individual even though they are the most important basic human rights.
Thirdly, a serious defect of the Act is that establishment of State Human Rights Commissions has not
been made mandatory. Section 21(1) which provides for the establishment of State Human Rights
Commission uses the words "may constitute ". This defect ought be rectified as soon as possible.

It is probably because of this, inter-alia, only a few States have so far established State Human Rights
Commissions. This provision should be mandatory in the same way as Section 3 of the Act which
makes it mandatory for the Central Government to constitute National Human Rights Commission.
Fourthly jurisdiction of the Human Rights Court has not been specified in the Act. It is not clear what
cases will be conducted in such courts and what procedure shall be followed in such Courts.
Fifthly, it has been criticized, and rightly too, that the NHRC has no teeth. Though it has been
entrusted with the important task of ensuring observance of human rights, the powers conferred on
it are not sufficient. It has no power to take a binding decision. It can only recommend. Even though
it concludes that violation of human rights has taken place but instead of giving a binding decision it
may under Section 18 simply recommend to the concerned Government or authority for the
initiation of proceedings for prosecution or other action, or approach the Supreme Court or High
Court concerned for such directions, order, or writs as that court may deem necessary recommend
or the concerned Government or authority for grant of some interim relief to the victim of the
family. The Concerned government or the authority is not bound to accept the recommendation or
may accept the recommendation with certain modifications as it may deem fit. If the Government is
really serious and sincere about the observance of human rights, it should give some teeth to NHRC
so to make it an effective and useful body.

Sixthly, NHRC has no independent and separate investigating agency and has to utilize and rely upon
the service of any office or investigation agency of the Central Government or of the State
Government with the concurrence of the Central Government or the State Government, as the case
may be.

Last but not the least, it is not proper and just to specify a Sessions Courts as Human Rights Courts
because these courts are already over-burdened with large number of cases. Therefore, cases of
alleged violations of human rights will not receive in such court the priority and importance they
deserve nor their expeditious disposal can be ensured in such courts. Separate Human Rights Court
under the Protection of Human Rights Act, 1993 ought to be established to achieve the desired
results.

Despite the above shortcomings and weaknesses, National Human Rights Commission (NHRC) has
performed praiseworthy and commendable work within a short period. It has rendered signal
services in respect of custodial deaths, rape, torture, false police encounters and other police
excesses. On March 10, 1999 Chairperson of the NHRC former C. J., I. M. N. Venkatachaliah launched
Human Rights Cells in the police headquarters as an effective in-house system to deal with the rising
number of cases of custodial violence in the country. While inaugurating the project, NHRC
Chairman C. J., I. M. N. Venkatachaliah said that the Commission received about 4,000 complaints of
omission and commission of the public servants and a majority of them pertained to police brutality
and custodial violence. NHRC Chairman further added that 'Human Rights Cells' will be run by
policemen with their own genius, own resources and own conscience would go a long way in
strengthening the foundation of democracy in the country." These Cells would be headed by an

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officer not below the rank of the Inspector-General of Police or Additional Director-General of Police
who would be designated as "IGP / ADGP (Human Right)". Though the NHRC would be consulted
while nominating them; they would work under the State Government. Works such as these have
enhanced the utility and significance of NHRC. Its circular or direction to all the District Magistrates
and Superintendents of Police to report to NHRC within twenty-four hours all cases of custodial
deaths and rape in their jurisdiction, has produced desired results. Now police officials will think
several times before committing excesses or misusing or abusing their powers. All credit for this
goes to NHRC.

Similarly, in March, 1999, NHRC has issued a directive to all State Governments to immediately
ensure medical examination of prison inmate in accordance with the proforma designed by it and
monthly reports of progress be communicated to Commission. This has been done to contain the
alarming spread of contagious diseases like tuberculosis in jails. Even though the prison rules require
medical examination of the inmates after admission but it is a distressing situation that the conduct
of such initial examination is more an exception than the normal. That is why, the NHRC had to issue
such directions in view of the seriousness of the situation of infectious disease and the gravity of the
problem of cross-infection which has the prospect that persons upon being held innocent at the end
of the day or after serving the sentence may find themselves in a worse position health-wise than
when they entered the prison. It is such welfare activities of the NHRC which have instituted the
confidence of the people in it and Us utility and necessity.

It may be noted that in some very important areas National Human Rights Commission seems to be
insensitive, apathic, inactive for reasons better known to National Human Rights Commission. For
example, these days it has become a common scene to see whenever workers medical students,
Government servants, teachers etc. protest peacefully against the wrong biased or politically
motivated decisions or policies of the Government, police personnel beat them mercilessly,
especially where one or two agitators are isolated, or apprehended and several policemen publicly
beat such agitator. It is not possible without the direct or indirect orders or sanctions of the
Government. Many a time police personnel get hold of an innocent person, or an old person and
several policemen beat a single person mercilessly. Such horrible scenes are shown in T.V. news
channel yet neither the Government nor the NHRC takes any action or cognizance against such
police personnel. The inaction of the Government can be understood because without its direct or
indirect sanction or order it is not possible for the police to act in such an inhuman way. But what is
preventing the NHRC to recommend severe action against such personnel. There seem to be a very
few rather negligible, cases in which the National Human Rights Commission has taken cognizance or
recommended strict action against such police officials. Rarer are the cases where the Commission
has recommended appropriate compensation for such victims or their kith and kin. Reference may
be made here to recent case namely severely beating of Samajwadi Party workers by Police at
Lucknow on 9th March, 2011 in the presence of senior officers and, especially, trampling down of
one of the activists by D.I.G. of Police, an inhuman act which no human being would do even with
an animal. It was also reported that the said activist suffered serious injuries. The said incident were
reported in the media including being shown live on T.V. The NHRC took suo motu cognizance of said
media reports and issued notice, alongwith press clippings to the Director-General of Police 'U.P.
calling for reply within four weeks. Even if the reply of DIG Police is not found satisfactory and after
investigation finds the DIG guilty, and the Commission recommends compensation of Rs. 50,000. as
so it will have no deterrent effect, no effect, at all. In such a case the Commission should have
recommend exemplary punishment to say Rs. 15 lakhs that too made payable not by the
Government, but DIG personally and payable to the victim. Then and then only, it will have a

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deterrent effect and every police official will think several times before doing such an inhuman act.
We will have to wait and see what is the final result of NHRC's intervention in this case.

In the end, it may e concluded that with certain amendments in the Act so as to remove the existing
defects and shortcomings and streamlining machinery of protection and observance of human rights
along with will of Government and the NHRC to act promptly and fairly, Protection of Human Rights
Act, 1993 can become an ideal for the better protection, respect and implementation of human
rights in the country.

Evaluation of Human Rights in India.

As noted above Protection of Human Rights Act can become an ideal Act for the better protection of
human rights. It is also true that National Human Rights Commission has rendered a signal service
for the respect and observance of human rights in India. But the fact is that Protection of Human
Rights Act, 1993 has yet not become an ideal Act because of certain shortcomings. National Human
Rights Commission itself admits that it is not sufficiently equipped with adequate powers to enquire,
investigate and to ensure respect for and the observation of human rights in India.

The situation in India as a whole clearly indicates that the situation of human rights in India is far
from satisfactory. Since the inception of Human Rights Act, th number of cases have progressively
increased. As pointed out by "Human Rights Watch our present Union Government has yet not
addressed "some of India's most pressing needs including better training of Police, providing health,
education and food security to millions still struggling for sustenance the country's economic growth
ending discrimination against Dalits, tribal and religious minorities and protecting the rights of
women. As regards Dalits and backward classes, a few words about the present reservation policy
would not be out of place here. In fact present reservation policy, despite all the reservation of
posts, a 'dalit' or 'backward class' remains a "dalit' or 'backwards', as the case may be, for ever. It
perpetuates the label of being 'dalit' or 'backward'. Instead of merging them in the mainstreans, it
divides the people on the basis of castes.

According to "Human Rights Watch"; failure of the government to protect minorities and other
vulnerable groups and justified grievances are to some extent responsible for militant activity
around the country. In fact, the Maoists are attracting supporters, in some states because of the
state's long failure to address basic socio-economic needs.

Indian Government points to the independent judiciary, vibrant media and active civil society as
evidence that it is thriving widespread impunity for human rights violations while the Indian
Government claims that the National Human Rights Commission ensures the protection of human
rights but the NHRC often admits and defends its insufficient resources to conduct its own
investigation and that it is not empowered to investigate violations by the Army, and is poorly
equipped and is vulnerable to pressure groups. As far the Government's part, its seriousness for
human rights is clearly illustrated by the fact that the annual reports of 2008-2009 and 2009-2010
have yet to be tabled in both the Houses of Parliament. Moreover, the Commission has no power to
take any concrete action it can only enquire investigate and recommend. It is the Government that
takes action on the recommendation of the Commission. It tables the reports of the Commission in
the Parliament along with action taken and proposed to be taken report. A Government which is
reluctant to even table the reports of the Commission before the Parliament, how can it be believed
for taking appropriate action for the protection and observance of the human rights.
India's rapidly growing economy and increasing importance as trading partner has meant that her
domestic human right are receiving international scrutiny. After a visit to India in March, 2008, U.N.

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High Commissioner for Human Rights, Navanethem Pillai called upon India to have good national
laws and policies that promote and protect human rights and seek to support the most vulnerable.
She also sought the review of Armed Forces Special Powers Act that breaches contemporary
international human rights standard. She also observed that India is yet to act on those
recommendations to end caste and religions based discriminations. In view of India's growing
economic growth, India has been repeatedly urged to play a greater role, in advancing human rights
and protecting civilians in Burma and Sri Lanka. In this respect, it may, however, be submitted that
India should first ensure better respect for and observance of human rights in her domestic field.
Even if we set apart international comments one cannot fail to admit that human rights situation in
India is far from satisfactory. Moreover, in India VVIP such as Union and State Ministers, Chief
Minister and Prime Minister consider themselves above law and think they can do anything ignoring
the view of common people. The glaring example of this is the controversy about the passing of Lok
Ayukta Bill for which Anna Hazare, a social activist was on indefinite fast and was supported by social
activists and right thinking men and women all over the country.
Last but not the least, sometime ago, the prominent industrialists of India jointly wrote a letter to
the Prime Minister stating that two main maladies-
(i) corruption

(ii) lack or absence of administration in the country which are obstructing the development of the
country. There is much force in the statement of the Industrialists.
As regards the first, it is well known that there is rampant corruption in the country emanating from
the top and going to the bottom.

As regards the second i.e., lack or absence of administration, recent Jat movement, especially their
occupation of railway track in several states and before that Gurjar Movement crippling public life in
several states and silence and inactivity of the Government for several weeks are glaring examples.
The question of protection of and observance for human rights in such a situation does not at all
arise. Thus the situation of human rights in India is far from satisfactory.
It may, therefore, be concluded that with certain amendments in the Act so as to remove the
existing defects and shortcomings and streamlining the machinery of protection and observance of
human rights, Protection of Human Rights Act, 1993 can become an ideal Act for the protection of
human rights in the country. But a necessary condition for achieving this goal is the will and good
intention of the Government.

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 6. Discuss the constitution, powers and functions of State Human
Rights Commission.

State Human Rights Commission.

According to Section 21(1) of the Protection Human Rights A t, 1993, a State Government may
constitute a body to be known as the (the name of the State) Human Rights Commission to exercise
the powers conferred upon, and to perform the functions assigned, to State Commission under
Chapter V of the Act. The wording of this provisions, especially the word "may" indicates that it is
not compulsory for the States to establish state human Rights Commission. Thus it depends upon
the discretion of the State. While under Section 3 of the Act, it is compulsory and mandatory for the
Central Government to constitute a body to be known as the National Human Rights Commission for
Section 3 uses the words "shall constitute”, it is simply optional under Section 21(1) for the State to
constitute a "State Human Rights Commissions. This is a great defect and weakness of the Act. Since
most of the violations of human rights take place in State territories, it should have been compulsory
and mandatory for the States to establish State Human Rights Commission. It is because of this flaw
in the Act that many States have yet not established State Human Rights Commission. Only a few
States, namely, West Bengal, Assam, Madhya Pradesh, Tamil Nadu and Himanchal Pradesh have so
far established State Human Rights Commission by the end of March 1997. Subsequently the
Government of Punjab State has establish d such a Commission but Uttar Pradesh has simply
notified the constitution of a State Commission, but State Commission has yet not been established.
On 31st May, 2001, the Chief Minister, Rajnath Singh announced in Vidhan Sabha that U.P. , would
soon have a State Commission. Later on the example of above mentioned States has been followed
by the Government of Jammu and Kashmir and Punjab. In its annual report of 1995-96 and
subsequent annual reports. The National Human Rights Commission (NHRC) has recommend that
state Commission be established at an early date in the remaining States also.

Constitution of State Human Rights Commission.

The State Human Rights Commission shall consist of -
(a) a Chairperson who has been a Chief Justice of a High Court;

(b) one member, who is, or has been a Judge of a High Court.
(c) one Member who is, or has been a, District Judge in that State;
(d) two Members to be appointed from amongst persons having knowledge of, or practical
experience in, matters relating to human rights.

The above Section 21 (2) has been replaced and has been substituted by new sub-section 21 (2) by
the Protection of Human Rights (Amendment) Act, 2006. The new sub-section 21 (2) is as follows:

(2) The State Commission shall, with effect from such date as the State Government may by
notification specify consist of-
(a) a chairperson who has been a Chief Justice of a High Court;

(b) one member who is, or has been a Judge of a High Court or District Judge in the State with a
minimum of seven years experience as District Judge;

(c) one Member to be appointed from among persons having knowledge of or practical experience
in matters relating to human rights."

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The Act also makes provision for the appointment of a Secretary who shall be the Chief Executive
Officer of the State Commission and shall exercise such power and discharge such functions of the
State Commission as it may delegate to him.
Reference may be made here to case of J.S. Yadav v. State of U.P., decided by the Division Bench of
Allahabad High Court. This case is with regard to the amendment in the Act relating to the change
and eligibility providing for that a District Judge who is to be appointed as member of State Human
Rights Commission, should also possess an experience that of a District Judge for seven years, has
been introduced by Act 43 of 2006 enacted by Parliament. Under the provisions of the amended Act,
State Government had proceeded to reconstitute the State Commission of Human Rights and had
simultaneously issued notification stating that the petitioner had ceased to hold office on account of
the amended provisions since petitioner was Additional District Judge who acted as a District Judge
and had experience for such period would not be counted to come under the definition of District
Judge. According to the amended Act, intention of the legislature that post should be filled by High
Court Judge unless, of course, one is matured enough to compare with High Court Judge if the
legislature's intent is to exclude one on account of experience Court cannot examine such intent but
to honour. The approach of human rights is equitable in nature and flows from the principles of
natural justice for which High Court Judges are more comparable in discharging of duties conceived
of.

Headquarters of the State Commission.

The headquarters of the State Commission has not been fixed or settled by the Act. It should have
been at the State capital like that of NHRC which is at national capital. It has been left to the
discretion of the State Government to fix or settle the place. The Act simply provides that it shall be
at such place as the State Government may by notification, specify.

Jurisdiction of the State Commission.-

Sub-section (5) of Section 21 provides that a State Commission may inquire into violation of human
rights only in respect of matters relatable to any of the Entries enumerated in List II and List III in the
Seventh Schedule to the Constitution. This is however subject to a proviso that if any such matter is
already being inquired into by he Commission (i.e. NHRC) or any other Commission duly constituted
under any law for the time being in force, the State Commission shall not inquire into the saki
matter.
In T. Vellaiyan v. The Registrar, it was contended that right to life, liberty, equality and dignity
includes the right to property, with respect to which the petition was made. The High Court rejected
this contention and held that it was unable to extend the definition of "human rights" to that extent
to include the right to property also, particularly when the Legislature as explicitly omitted the right
to property within the definition of human rights.

But according to the second proviso in relation to the Jammu and Kashmir· Human Rights
Commission, this sub-section [i.e. sub-section (5) of Section 21) shall have effect as if that the words
and figures "List II and List III in the Seventh Schedule to the Constitution, the words and figures" List
III in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir in
respect of matters in relation to which the Legislature of that State has power to make laws" had
been substituted.

The territorial jurisdiction of the National Human Rights Commission or the Commission has not
been specifically mentioned or clarified in any provision of the Act although the wordings of Section
12 in general indicate and imply that .it extends to the whole territory of India. However, negatively

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Article 36(1) curtails the jurisdiction by providing that the Commission shall not enquire into any
matter which is pending before a State Commission or any other Commission duly constituted under
any law for the time being in force. Besides this, Section 36(2) provides that both the National
Commission and the State Commission shall not enquire into any matter after the expiry of one year
from the date on which the act constituting violation of human rights is alleged to have been
committed.

Thus it is certain that a State Commission cannot inquire into violation of human rights in respect of
matters relatable to any of the Entries enumerated in List 1. This is clear from sub-section (5) of
Section 21 of the Act. But the National Commission may. inquire into violation of human rights not
only in respect of matters relatable to any of the Entries enumerated in List but also in respect of
Entries enumerated in List II and List Ill. Thus there are chances of conflict between the jurisdiction
of the National Commission or State Commission. But there is no provision for coordination of
activities of both the Commissions nor there is any provision for the resolution of conflict if any,
arises. The Act should have made clear provisions in this respect.

Yet another vague provision in this respect is the use of the words "or any other Commission duly
constituted under any law for the time being in force." This provision can be misused by the Central
or State Government by constituting a commission under any other law for the time being in force to
oust the jurisdiction of the National Commission or State Commission so as to keep it away from
serious cases of alleged violation of human rights for political or other reasons.

It may be noted here that the Protection of Human Rights (Amendment) Act, 2006 has after sub-
section (5) of Section 21 has inserted the following sub-section (6) :

"(6) Two or more State Governments may, with the consent of a Chairperson or a Member of State
Commission appoint such Chairperson on, as there case may be, such member of another State
Commission simultaneously if such Chairperson or Member consents to such appointment.
Provided that every appointment made under this sub-section shall be made after obtaining the
recommendations of the committee referred to in sub-section (1) of Section 22 in respect of the
State for which a common Chairperson or Member, or both, as the case may be, is to be appointed"

Appointment of Chairperson and other Members of State Commission.-

The Chairperson and Members of State Commissions are to be appointed by the Governor under his
hand and seal after, obtaining the recommendation of a Committee consisting of-
(a) Chief Minister-Chairperson

(b) Speaker of the Legislative Assembly-Member

(c) Minister in Charge of the Department Home in that State-Member

(d) Leader of the Opposition in the Legislative Assembly-Member.

But where there is a Legislative Council in a State, the Chairman of that Council and the Leader of the
Opposition in that Council shall be Members of the Committee. It is also made clear that no sitting
Judge of a High Court or a sitting Judge shall be appointed except after consultation with the Chief
Justice of the concerned State.B3 It is also made clear that no appointment of a Chairperson or
Member shall be invalid merely by reason of any vacancy in the Committee.

Removal of a Member of the State Commission.

136
The Chairperson or any other Member can only be removed from his office by order of the President
on the ground of misbehaviour or incapacity after the Supreme Court, on a reference being made to
it by the President has on inquiry held in accordance with the procedure prescribed in that behalf by
the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought
such ground to be removed. This is, however, subject to the provision of sub-Section (2) of Section
23.84 This sub-section (1) has been replaced by a new sub-section (1) by the Protection of Human
Rights (Amendment) Act, 2006 the new sub-section is as follows:
(1) The Chairperson or a member of State Commission by notice in writing under his head addressed
to the Governor, resign this office.
(I-A) Subject to the provisions of sub-section (2), the Chairperson or any Member of the State
Commission shall only be removed from his office by order of the President on the ground of proved
misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President has,
on inquiry held in accordance with the procedure prescribed the procedure prescribed in that behalf
by the Supreme Court reported that the Chairperson or such Member, as the case may be, ought or
any such ground to be removed."

Term of office of Chairperson and Member of the State Commission.

The old Section 24 has been replaced by a new Section 24 by the Protection of Human Rights
(Amendment) Act, 2006. The new Section 24 is as follows:
24. Term of Office of Chairperson and Members of the State Commission.-

(1) A person appointed as Chairperson shall hold office for a term of five years from the date on
which he enters upon his office or until he attains the age of seventy years whichever is earlier.

(2) A person appointed as a Member shall hold office for a term of five years from the date on which
he enters upon his office shall be eligible for re-appointment for another term of five years:

Provided that no Member shall hold office after he has attained the age of seventy years.
(3) on ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment
under the Government of a State or under the Government of lndia."
Sub-Section (2) of Section 23 provides that notwithstanding anything contained in sub-section (I-A)
of Section 23 the President may by order remove from office the Chairperson or any other Member
if the Chairperson or such other Member as the case may be-

(a) is adjudged an insolvent; or

(b) engages during his terms of office in any paid employment outside the duties of his office; or

(c) is unfit to continue in office by reason of infirmity of mind or body; or

(d) is of unsound mind and stands so declared by a competent court; or

(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President
involves moral turpitude.

That is say, for the grounds mentioned in sub-section (2), the President can remove the Chairperson
or any other Member without making a reference to the Supreme Court.

Terms and conditions of Service of Chairperson and Members of State Commission.-

The new Section 26 substituted by the Amendment of Section 26 provides as follows:

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"26. Terms and conditions of Service of Chairperson and Members of State Commission.-The salary
and allowance payable to, and other terms and conditions of service of the Chairperson and
Members shall be such as may be prescribed by the State Government:
Provided that neither the salary and allowances nor the other terms and conditions of service of the
Chairperson or a Member shall be varied to the disadvantage after his appointment.
In Adv. Sreenivasan Venugopalan v. Hon'ble M.M. Pareed Pillai, Chief Justice of Kerala High Court,8S
wherein the first respondent, former Judge of the High Court Chairperson of State Human Rights
Commission was appointed as Lok Ayukta of Kerala State. The question was whether he was eligible
,to hold the post or whether he was under the control of the State Government. The division Bench
of the Kerala High Court observed that as per the scheme of the Lok Ayukta Act to discharge the
functions and duties of the office, the Lok Ayukta is not controlled by the State Government in any
manner. The State Government is not at all empowered to ask the Lok Ayukta to discharge its
functions or to perform its duties in the manner in which it likes. All these would indicate that once
appointed the Lok Ayukta or Up Lok Ayukta, there is absolutely no employer-employee relationship -
between the Government and the appointees. They are not subordinate to Government of the
State. There is no executive control over them. Needless also to say that there is no master-servant
relationship. The office of Lok Ayukta or Up Lok Ayukta is an independent statutory office which is
not under the Government of the State or Union of India.

Further, the Lok Ayukta receives his salary from the State Government. But that is not again the sole
criterian to hold that he is under the employment of the State. The post of Lok Ayukta is an
independent statutory post and by no stretch of imagination can it come under the preview of
employment under the Government. As such, it is a public authority, which has public or statutory
duties to perform and it is in no way under the control of the State Government. The High Court held
that Lok Ayukta being the post under the Government, as per under Section 24 (3) of the Protection
of Human Rights Act, 1993, the contention that the first respondent is disqualified or ineligible, is -
devoid of merits. Thus Section 24 (3) does not disqualify Chairperson of Human Rights Commission
to hold office of Lok Ayukta.

Annual and special Reports of State Commission.-

The State Commission is required to submit an annual report to the State Government and may at
any time submit special reports on any matter which in its opinion is of such urgency or importance
that it should not be deferred till the submission of the annual report.B6 After the annual and special
reports are submitted by the State Commission, the State Government shall cause them to be laid
before each House of the State Legislature where it consists of two Houses, or where such
Legislature consists of one House, before that House along with a memorandum of action taken or
proposed to be taken on the recommendations of the State Commission and the reasons for the
non-acceptance of the recommendations, if any.

State Human Right commissions.-

To date 23 States have established State Human Rights Commissions. These 23 States are:
(1) Assam; (2) Chattisgarh; (3) Himachal Pradesh; (4) Karnataka: (5) Manipur; (6) Rajasthan: (7) West
Bengal; (8) Uttarakhand; (9) Andhra Pradesh; (10) Gujarat; (11) Jammu and Kashmir; (12) Madhya
Pradesh; (13) Odisha; (14) Tamil Nadu; (15) Jharkhand; (16) Haryana; (17) Bihar; (18) Goa; (19)
Kerala; (20) Maharashtra; (21) Punjab; (22) Uttar Pradesh and (23) Sikkim.

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 7. Short Notes
a) Appointment of Chairperson and other members of National Human Rights
Commission

The Chairperson and other Members are appointed by the President by warrant under his hand and
seal after obtaining the recommendations of committee consisting of-
(a) Prime Minister-Chairperson

(b) Speaker of the House of People-Member

(c) Minister in Charge of Ministry of Home Affairs in the Government of India-Member

(d) Leader of the Opposition in the House of the People-Member.

(e) Leader of the Opposition in the Council of States-Member

(f) Deputy Chairman of the Council of States-Member

A sitting Judge of the Supreme Court or sitting Chief Justice of a High Court can be appointed only
after consultation with the Chief Justice of India.
It is further provided that no appointment of a Chairperson or a Member be invalid by reason of any
vacancy in the above Committee headed by the Prime Minister.

Term of office of Members.

A person appointed as Chairperson shall hold office for a term of five years from the date on which
he enters upon his office or until he attains the age of seventy years, whichever is earlier. A person
appointed as a Member shall also hold office for a term of five years from the date on which he
enters upon his office and shall be eligible for re-appointment for another term of five years. This is
however, subject to the condition that no Member shall hold office after he has attained the age of
seventy years.

Further, on ceasing to hold office, a Chairperson or a Member shall be ineligible for further
employment under the Union Government or the Government of any State.24 This is indeed a
welcome feature of the Act. Such a provision ought to be compulsory in respect of the offices of
Speaker of the Lok Sabha, Deputy Speaker of the Rajya Sabha, Chief Election Commission and
Governors of States.

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 b) Removal of Chairperson and other members of National Human Rights
Commission

Sub-section (1) of Section 5 (1) provides that the chairperson or any Member may, by notice in
writing under his hand addressed to the President of India, resign his office. The Chairperson or any
other Member of the Commission can be removed from his office by order of the President on the
ground of proved misbehaviour or incapacity after the Supreme Court, on reference being made to it
by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by
the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought
on any such ground be removed. But despite this provision or notwithstanding this provision the
President may by order remove from office the Chairperson or any other Member if the Chairperson
or such other person, as the case may be-

(a) is adjudged an insolvent; or

(b) engages during his term of office in any paid employment outside the duties of his office;
or
(c) is unfit to continue in office by reason of infirmity of mind or body;
or
(d) is of unsound mind and stands so declared by a competent Court; or
(e) is c nvwt d and se t to' imprisonment for an offence which in the opinion of the President
involves moral turpitude."

In the above cases, it will not be necessary for the President to refer the matter to the
Supreme Court and obtain its report before ordering the removal of a Chair person or a
Member.

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 c) What are the functions of National Human Rights Commission.

The Commission shall perform all or any of the following functions, namely :-

(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf
or on a direction or order of any court into complaint of-
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation by a public servant;

(b) intervene in any proceeding involving any allegation of violation of human rights pending
before a Court with the approval of such Court ;

(c) visit under intimation to the State Government any jail or any other institution under the
control of the State Government, where persons are detained of lodged for purposes of
treatment, reformation or protection to study the living conditions of inmates and make
recommendations thereon;

(d) review the safeguards provided by or under the Constitution or any law for the time
being in force for the protection of human rights and recommend measures for their
effective implementation;

(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights
and recommend appropriate remedial measures;

(f) study treaties and other international instruments on human rights and make
recommendations for their effective implementation;
(g) Undertake and promote research in the field of human rights;
(h) spread human rights literacy among various sections of the society and promote
awareness of the safeguards available for the protection of these rights through
publications, the media, seminars and other available means;
(i) encourage the efforts of non-governmental organisations and institutions working in the
field of human rights; and

(j) such other functions as it may consider necessary for the promotion of human rights.

It may be noted here that the news item relating to the visit of member of State Human Rights
Commission to Mental Hospital will come within Section 12 (c) of the functions of the Commission.
His proceeding will therefore come within the purview of judicial proceedings. Hence, the report of
the Commission is saved by fourth exception of Section 499 of Indian Penal Code (45 of 1860),
Exception 4.31
It has been held that where eye-camps, were conducted by Blindness Control Society and there were
allegations of negligence on the part of the officials and seven patients lost their eye-sight, State
Human Rights Commission, would be entitled to canvass cause of the said patients through a writ
petition.

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As regards the date of commencement for the period of limitation, it has been held that the date of
experience of adverse effect subsequent to administration of medicine (and not the alleged
administration of certain medicines by hospital) alone can be taken as date of commencement of
period of limitation and as such complaint filed within one year was not barred by limitation.

In N.C. Dhoundial v. Union of India, P. Venkatarama Reddi, J., speaking for the three Judge Bench of
the Supreme Courts observed that Section 36 (2) of the Protection of Human Rights Act ( 10 of 1994)
places an embargo against the Commission enquiring into any matter after expiry of one year from
the date of the alleged act violative of human rights. The caption or the marginal heading to the
section indicates that it is a jurisdictional bar. Periods of limitation, though basically procedural in
nature, can also operate as fetters on jurisdiction in certain situations.

Further, the language employed in the marginal heading is another indication that it is jurisdictional
limitation. It is a settled rule of interpretation that the section's heading or marginal note can be
relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern the
legislative intent.

In fact, the words and the language used in Section 36 (2) is not clear and categorical.
The marginal note to the section is referred to only to consider whether the bar created by Section
36 (2) has a bearing on the power or jurisdiction of the Commission.
The Supreme Court observed: The "bar under Section 36 (2) is sought to be got over by the
Commission by invoking the theory of continuing wrong and the recurring cause of action. According
to the -Commission, every violation of human right is a continuing wrong and unless due reparation
is made we find it difficult to accept this proposition propounded by the Commission. The short
answer to this view point is that such a view, if accepted, makes Section 36 (2) practically a dead
letter. Moreover, going by the language employed in Section 36 (2), the concept of continuing wrong
could not at all be pressed into service in the instant case. The time limit prescribed is referable to
the alleged 'act' constituting violation of human rights. In a case like illegal detention, the offensive
act must be deemed to have been committed when a person is placed under detention and it
continues so long as the affected person remains under illegal detention. The commission of
offensive act is complete at a particular point of time and it does not continue to be so even after
the unauthorised detention ends. In the instant case it is not disputed that the complainant was
produced before the special Judge on 3-4-1994 and remand was obtained in accordance with
procedure prescribed by law. The alleged act of unauthorized detention which gives rise to violation
of human rights ceased on 3-4-1994 and it does not perpetuated thereafter. It is not the effect of
illegal detention which is completed by Section 36 (2) but it is the illegal act itself. It would be a
contradiction in terms to say that the arrest or detention beyond 3-4-1994 was in accordance with
law and at the same time the arrest/ detention continued to be wrongful. It cannot, therefore, be
brought under the category of continuing wrong which is analogous to the expression 'continuing
offence' in the field of criminal law. It cannot be said that the alleged wrongful act of detention
repeats itself everyday even after the complainant was produced before the Magistrate and remand
was obtained in accordance with law. Beyond 3-4-1994, there was no breach of obligation imposed
by law either by means of positive or passive conduct of the alleged wrong-doers' is, therefore,
inoperative. One year period for taking up the enquiry into the complaint, therefore, comes to an
end by 3-4- 1995.
But there are certain matters which are not subject to the jurisdiction of the Commission. The
Commission cannot enquire into any matter which is pending before a State Commission or any

142
other Commission duly constituted under any law for the time being in force.38 Besides this, the
Commission or the State Commission shall not enquire into any matter after the expiry of one year
from the date on which the act constituting violation of human rights is alleged to have been
committed. This provision or inhibition of the Commission container' in Section 36 (2) of the Act
came for consideration before the Supreme Court in Paramjit Kaur v. State of Punjab. One of the
main questions for consideration before the Court was whether the inhibition contained in Section
36 (2) would apply to the Commission even when the Supreme Court under Article 32 of the
Constitution referred a matter of alleged violation of human rights to the Commission.

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8. Problems
Problem 1:
Mrs. Roopa, a Garment employee of Bangalore, fell down from a running BMTC bus and suffered
serious leg injuries. She was taken to various govt. hospitals but she was denied medical aid due
to non-availability of beds. Later on she was admitted to a private hospital where she had to
spend Rs. 1.5 lakhs for her treatment. She claims that amount from the government. Decide the
liability of the Government.

Problem 2:
Mr. Shyam a coolie working in Mumbai fell down from a running train and suffered serious head
injuries. He was taken to various government hospitals but he was denied medical aid due to
non availability of beds. Later he was admitted to a Private hospital, where he had to spend Rs. 1
lakh for his treatment. He claims that amount from the government. Decide the liability of the
government

Problem 3:
Ramu was detained in jail under Preventive Detention Act. He wrote a scientific book in prison
and sought the permission of the government to send it to wife for publication. Government
refused permission to him. Is the stand of the government justifiable? Give reasons.

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 UNIT 5

1. Explain the rights of the women guaranteed under the

convention on the rights of the women.

Introduction
There are certain groups of human beings which either by nature or because of deep-rooted custom
are weak and vulnerable, such as, a child, women, disabled persons, aged persons, migrant workers
or persons belonging to a particular race. However, they being human beings do possess human
rights and fundamental freedoms. But their rights have been violated very frequently by the
dominant section of the society. The movement of the under privileged and deprived sections for
securing a place for themselves under the auspices of the United Nations has contributed a great
deal in spreading the message of human rights. A number of conventions have been concluded
under the auspices of the United Nations to protect their rights which are as follows :

(1) WOMEN
The advancement of women has been a focus of the work of the United Nations since its creation.
The Preamble of the Charter of the United Nations sets as a basic goal to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the equal rights of men
and women. Furthermore, Article 1 of the Charter proclaims that one of the purposes of the United
Nations is to achieve international cooperation in promoting and encouraging respect for human
rights and fundamental freedoms for the people without distinction as to race, sex, language or
religion.

As early as in 1946 the Commission on the Status of Women was established to deal with women's
issues. The Universal Declaration of Human Rights had affirmed the principle of the inadmissibility of
discrimination and proclaimed that all human beings are born free and equal in dignity and rights
and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of
any kind, including distinction based on sex. However, there continued to exist considerable
discrimination against women primarily because women and girls face a multitude of constraints
imposed by society, not by law. It violated the principle of equality of rights and respect for human
rights.

The General Assembly on November 7, 1967 adopted a Declaration on the Elimination of

Discrimination Against Women, and in order to implement the principles set forth in the Declaration,
a Convention on the Elimination of All Forms of Discrimination Against Women was adopted I by the
General Assembly on December 18, 1979 after five years of consultations with the Commission on
the Status of Women (CSW). The Convention often described as an International Bill of Rights for
Women cam into force on September 3, 1981. As on September 29, 2012 the Convention had 187
States Parties.
Definition of 'Discrimination Against Women:
Although the International Bill of Human Rights laid down a comprehensive set of rights to which all
persons, including women are entitled, additional means for protecting the human rights of women
were seen as necessary because the mere fact of their 'humanity' has not been sufficient to
guarantee women the protection of their rights. The Preamble to the Convention on the Elimination
Against Women explains that, despite the existence of other instruments, women still do not have
equal rights with men. Discrimination against women continues to exist in every society.

145
The Convention under Article 1 defines the term "discrimination against women" as any distinction,
exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.
The Convention under Part III lays down a number of fields where States Parties are required to take
steps to eliminate discrimination against women which includes the following :-

(1) Education.
The Convention under Article 10 provides that women shall be provided same conditions for careers
and vocational guidance as to that of men. They shall be provided same access to studies for the
achievement of diploma in educational establishments of all categories in rural as well as in urban
areas. This equality shall be provided in pre-school, general, technical, professional and higher
technical education, as well as in all types of vocational training. Women shall have access to the
same curricula, the same examinations, teaching staff with qualifications of the same standard and
school premises and equipment of the same quality as to that of men. Women shall be provided
same opportunities as to men in matters relating to scholarship and other study grant. They shall
have same opportunities for access to programme of continuing education including adult and
functional literacy programmes. They shall have same opportunities to participate actively in sports
and physical education.

(2) Employment.
The Convention under Article 11 provided that States Parties shall take all appropriate measures to
eliminate discrimination against women in the field of employment providing the same rights, in
particular,
(a) the right to work;

(b) right to same employment opportunities;

(c) right to free choice of profession and employment;

(d) right to equal remuneration including benefits and to equal treatment in respect of work of equal
value as well as equality of treatment in the evaluation of the quality of work;

(e) the right to social security particularly in cases of retirement, unemployment, sickness, invalidity
and old age and other incapacity to work, as well as the right to paid leave;

(f) right to protection of health and to safety in working conditions. There shall be no discrimination
against women on grounds of marriage or maternity.

(3) Health care

The Convention under Article 12 provides that States Parties shall take steps to eliminate
discrimination against women in the field of health care, access to health care services, including
those related to family planning.

(4) Economic and Social Life.

Article 13 of the Convention provides that discrimination against women shall be eliminated in other
areas of economic and social life. They shall be provided, the same rights as to that of men in
particular

146
(a) the right to family benefits;
(b) the right to bank-loans, mortgages and other forms of financial credit;

(c) the right to participate in recreational activities, sports and all aspects of cultural life.

(5) Women in Rural Areas.

Article 14 provided elimination of discrimination against rural areas. States Parties are required to
ensure such women the right

(a) to participate in the elaboration and implementation of development planning at all levels;
(b) to have access to adequate health care facilities, including information, counselling and services
in family planning;
(c) to benefit directly from social security programmes;

(d) to obtain all types of training and education, formal and on-formal, including that relating to
functional literacy, as well as, inter alia, the benefit of all community and extension services, in order
to increase their technical proficiency;
(e) to organise self-help groups and cooperatives in order to obtain equal access to economic
opportunities through employment or self-employment;
(f) to participate in all community activities;

(g) 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
(h) to enjoy adequate living conditions.

(6) Equality before Law.

Article 15 of the Convention provides that 'States Parties shall accord to women equality with men
before the law'. Women shall have equal rights to conclude contracts and to administer property
and States Parties shall treat them equally in all stages of procedure in courts and tribunals. States
Parties agree that all contracts and all other private instruments of any kind with a legal effect which
is directed at restricting the legal capacity of women shall be deemed null and void. States Parties
shall accord to men and women the same rights with law relating to the movement of persons and
the freedom to choose their residence and domicile.

(7) Marriage and Family Relations.

Article 16 provides that States Parties shall take all measures to eliminate discrimination against
women in all matters relating to marriage and family relations. Women shall be provided

(a) the same right to enter into marriage;

(b) the same rights, and responsibilities during marriage and at its dissolution;

(c) the same rights and responsibilities as parents, in matters relating to their children. In all cases
the interests of children shall be paramount;

(d) the same rights to decide freely and responsibly on the number and spacing of their children and
to have access to the information, education and means to enable them to exercise their rights;

147
(e) the same rights and responsibilities with regard to guardianship, wardship, trusteeship and
adoption of children;

(f) the same personal rights as husband and wife, including the right to choose a family name, a
profession and an occupation;

(g) the same rights for both spouses in respect of the ownership, acquisition, management,
administration, enjoyment and disposition of property, whether free of charge or for a valuable
consideration.
States Parties to the Convention condemned discrimination against 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 enterprise.

(f) To repeal all national panel provisions which contribute discrimination against women.

Implementation Procedure
The Convention under Article 17 made a provision for the establishment of a Committee on the
Elimination of Discrimination Against Women (CEDAW) for the purpose of considering the progress
made- in the implementation of the provisions of the Convention. The Committee shall consist of
eighteen members (at the time of entry into force of the Convention) and twenty-three members
(after ratification or accession to the Convention by thirty-five States). The members shall be experts
of high moral standing and shall possess competence in the field covered by the Convention. The
experts shall be elected by States Parties from among their nationals and shall serve in their personal
capacity.
The States Parties shall report periodically to the Committee a report on the legislative, judicial,
administrative or other measures which they have adopted to give effect to the provisions of the
Convention. The Committee examines reports submitted by States Parties and makes its suggestions
and recommendations based on their considerations.
It may also invite United Nations specialized agencies to submit reports for consideration and may
receive information from non-governmental organisations. Thus, the Committee acts as a
monitoring system to oversee the implementation of the Convention. The Committee shall report
annually to the General Assembly through the Economic and Social Council on its activities and may
make suggestions and general recommendations based on the examination of reports and
information received from the States Parties.
A Committee on the Elimination of Discrimination Against Women was established in 1981 when the
Convention entered into force. It is composed of 23 independent experts. The Committee meets
only for two weeks a year, which is clearly inadequate. The States Parties are required to report

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periodically to the Committee on the legislative, judicial, administrative or other measures which
they have adopted to give effect to the provisions of the Convention.' Thus, the Convention is
implement d by means of States Parties' report. The Committee submits its annual report to the
General Assembly, through the Economic and Social Council, on its activities and may make
suggestions and general recommendations based on the examination of reports and information
received from the States Parties.

India and CEDAW

India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women
(1979) on July 9, 1993. Ratification of the Convention obliges India to honour the obligations
imposed by the Convention. In Madhu Kishwar v. State of Bihar, 1 it was held by the Supreme Court
that the Convention on the Elimination of All Forms of Discrimination Against Women is an integral
scheme of the Fundamental Rights and the Directive Principles. Article 2(e) of CEDAW enjoins the
States Parties to breathe life into the dry bones of the Constitution, International Conventions and
the Protection of Human Rights Act, to prevent gender-based discrimination and to effectuate right
to life including empowerment of economic, social and cultural rights. Article 2(f) read with Articles
3, 14 and 15 of CEDAW embodies concomitant right to development as an integral scheme of the
Indian Constitution and the Human Rights Act. It is therefore desirable that the enabling legislature
is enacted to give legal effect to the Convention so that discrimination against women which exists
due to legal, social and cultural traditions is eliminated. Rights provided therein will remain
meaningless to a large number of women due to their poverty, ignorance and illiteracy.
India while ratifying the Convention made two declarations and a reservation. The first declaration
reads : with r to Articles 5(a) and 16(1) of the CEDAW, the Government of the Republic of India
declares that it shall abide by and ensure those provisions with conformity 'with its policy of non-
interference in the personal affairs of any community without its initiative and consent. The second
declaration states with regard to Article 16(2) of CEDAW, the Government of the Republic of India
declares that though in principle it fully supports the principle of compulsory registration of
marriage, it is not practicable in a vast country like India with its variety of customs, religions and
level of literacy. In addition to the above declarations, India made a reservation by stating that it
does not consider itself bound by paragraph 1 of Article 29 of the Convention which relates to
settlement of disputes through arbitration.
It is to be noted that the Declaration relating to compulsory registration of marriage has become
meaningless in view of the decision of the Supreme Court in Seema v. Ashwani Kumar, wherein the
Court held that "marriages of all persons who are citizens of India belonging to various religions
should be made compulsorily registrable in their States, where the marriage is solemnized. The
Court asked the States to notify the registration within three months. An official shall be appointed
under the rules to register marriages. As and when the Central Government enacts a comprehensive
statute, the same shall be placed before the Supreme Court for scrutiny. Counsel for the States shall
ensure that the directions are carried out immediately. Later, the Supreme Court on October 25,
2007 held for the compulsory registration of marriage in respect of all persons who are citizens of
India even if they belonged to various religions.
In 1990, National Commission for Women Act was enacted by the Parliament which established a
National Commission for Women (NCW). The Commission was given wide powers to ensure steady
and due development of women. The Commission has been empowered to investigate and examine
all matters relating to safeguards provided for women under the Constitution and other laws; to
review the existing provisions of the Constitution and other laws affecting women and to
amendments so as to suggest remedial legislative measures to meet any lacunae, inadequacies or

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shortcomings in such legislations and to take up the cases of violations of constitutional provisions
and of other laws with appropriate authorities.

It is to be noted that although equality of status has been guaranteed' to women by the
Constitution, it is a myth to millions of women as they are the victims of various kinds of violence
within houses, at work places and in the educational system. They are still the subject of
suppression. Tall promises for improving the plight of women were made during 2001 which was
declared as 'Women's Empowerment Year' but they were far from being fulfilled. National Policy for
the Empowerment of Women was placed before a group of ministers but the policy has not been
adopted. Seminars were organised on a number of issues affecting the conditions of women, no
improvement has been made. They are being discriminated as compared to brothers at home and
their male colleagues at work.

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 2. Explain the Rights, liabilities of disabled person.
Disabled Persons
More than 650 million men, women and children in the World suffer from either mental or physical
disability. Most of them live in the developing World. They suffer from discrimination and lower
standard of living. They are often denied basic educational opportunities and often given menial or
poorly paid jobs. Social attitudes exclude them from cultural life and normal social relationship.
Persons with disabilities include those who have long- term physical, mental, intellectual or sensory
impairments which in interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others.

In order to promote and protect the rights and dignity of persons with disabilities General Assembly
on December 19, 2001 established an Ad hoc Committee, for the preparation of a comprehensive
and integral international convention on the protection and promotion of the rights and dignity of
persons with disabilities. The Ad hoc Committee in June, 2003 decided to establish a Working Group
with the aim of preparing and presenting a draft text of a convention. The Ad hoc Committee
adopted the draft text of the convention and forwarded to the General Assembly for adoption. The
General Assembly on December 13, 2006 adopted by consensus the Convention on the Rights of
Persons with i abilities. The Convention came into force on May 3, 2008 after its ratification by 20
States. As on September 29, 2012 the Convention had 123 States parties.
The Convention laid down a number of rights to be provided to the persons of disabilities such as
right to life, equal recognition before the law, access to justice, liberty and security of persons,
freedom from torture or cruel, inhuman or degrading treatment or punishment, freedom from
exploitation, violence and abuse, liberty of movement and nationality, freedom of expression and
opinion, and access to information, respect for privacy etc. The Convention also stipulated that
persons with disabilities shall have the right to education, health, work and employment. They shall
participate in political and public life and in cultural life on equal basis with others. It is to be noted
that the Convention did not create new rights for the persons with disabilities. However, it
specifically mentioned them so that States Parties to the Convention may raise awareness in the
society to foster respect for the rights and dignity of persons with disabilities.
The Convention has provided general obligations to the State Parties for the full realisation of all
human rights and fundamental freedom for all persons with disabilities. For instance, States Parties
shall undertake :
(a) to adopt all appropriate legislative, administrative and other measures for the implementation of
the rights;
(b) to take all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices that constitute discrimination against persons with disabilities;
(c) to take into account the protection and promotion of the human rights of persons with
disabilities in all policies and program;
(d) to refrain from engaging in any act or practice that is inconsistent with the Convention and to
ensure that public authorities and institutions act in conformity with the Convention with regard to
economic, social and cultural rights.

Each party undertakes to take measures to the maximum of its available resources, and where
needed, within the framework of international co-operation, with a view to achieving progressively

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and full realisation of these rights, without prejudice to those obligations contained in the present
Convention that are immediately applicable according to international law.

Committee on the Right of Persons with disabilities

A Committee on the Rights of Persons with Disabilities was established. The Committee, shall
consist, at the time of entry into force of the Convention of twelve experts. The number of members
shall be eighteen when the Convention is ratified by an additional sixty States. The members of the
Committee shall be elected by States Parties. They shall be elected for a term of four years. The
Committee shall consider the reports submitted by the States Parties on measures taken to give
effect to its obligations under the Convention and on the progress made in that regard. States
Parties to the Convention are required to submit report within two years after the entry into force of
the Convention. The Committee may make suggestions and general recommendations on the report
as it may consider appropriate and shall forward these to the State Party concerned.

Optional Protocol to the Convention on the Rights of Persons with Disabilities (OPCRPWD)
OPCRPWD was adopted on December 13, 2006 by the General Assembly. The Protocol came into
force on May 3, 2008 when it was ratified by 10 States Parties. As on September 29, 2012 the
Protocol had 73 States Parties. Optional Protocol was adopted in order to provide rights to the
individuals to make communications to the Committee on the Rights of Persons with Disabilities (the
Committee). Article 1 Para 1 of the Optional Protocol lays down that a State Party to the Protocol
recognises the competence of the Committee on the Rights of Persons with Disabilities to receive
and consider communications from or on behalf of individuals or groups of individuals subject to its
jurisdiction who claim to be victims of a violation by that State Party of the provisions of the
Convention. The Committee shall consider a communication inadmissible when :
(a) the communication is anonymous;

(b) the communication is ill-founded or not sufficiently substantial;

(c) when all available domestic remedies have not been exhausted. The Committee shall bring any
communications submitted to it confidentially to the attention of the State Party. Within six months,
the receiving State shall submit to the Committee written explanations or statements clarifying the
matter and the remedy, if any, that may have been taken by that State.
If the Committee receives reliable information indicating grave or systematic violations by a State
Party of rights set forth in the Convention, the Committee shall invite that State Party to co-operate
in the examination of the information and to this end submit observations with regard to the
information concerned. The Committee may designate one or more of its members to conduct an
inquiry and to report urgently to the Committee after taking into account any observations that may
have been submitted by the State Party concerned as well as any other information available to it.
After examining the findings of such an inquiry, the Committee shall transmit these findings to the
State Party concerned together with any comments and recommendations. The State Party
concerned shall, within six months of receiving the findings, comments and recommendations
transmitted by the Committee, submit its observations to the Committee.

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 3. What is the role of united nations children fund (UNICEF) in
protecting the rights of children?

UNICEF began its mission in 1946 as a relief organization for children after World War II. Its mandate
soon expanded to helping children whose lives were at risk in developing countries. Almost 60 years
later, UNICEF is more than 7,000 people in 157 countries and territories around the world. Nine of
10 staff members work closely with national and local governments and other partners around the
world.
Throughout, UNICEF’s priorities have been realizing the intrinsic rights of children to a basic quality
of life, rights world leaders further defined in the Convention on the Rights of the Child. UNICEF
bases its actions on up-to-date substantial research and experience on what works to help give
children the best start in life, to survive and thrive -- especially in emergencies -- and to go to school.
This work correlates closely with the Millennium Development Goals set by United Nations States in
2000 – and is central to meeting them. Of the 48 indicators of progress toward the Goals, UNICEF is
chiefly responsible for progress in 13.
UNICEF’s Priorities are Essential for Development
UNICEF’s work can be grouped into five main strategic areas. They are all interrelated; progress in
any one leads to progress in the others.
Together, they make a difference for children by supporting implementation of the Millennium
Summit Declaration and the world’s work toward the Goals.
They also ensure that UNICEF contributes effectively to reducing poverty, through advocacy and
partnerships that create sustained investments in children’s survival, development and protection.
These strategic areas are:
Young Child Survival and Development: In support of Millennium Goal 4 – reducing child mortality –
and Goal 6, malaria control, among others, UNICEF works toward comprehensive child health care in
the earliest years, including the antenatal period before birth.
Toward helping young children survive and have a healthy, productive future, UNICEF advocates for
and gives financial and technical support to national- and community-based education and
intervention programmes on health care and nutrition. Priority areas include immunization,
preventing and controlling malaria, controlling and treating diarrhoeal and respiratory diseases,
eradicating guinea worm and preventing anaemia.
Health programmes ideally include antenatal care of pregnant women, and neonatal care in the first
four weeks after birth, including promoting breastfeeding. UNICEF also shares advocacy, social
mobilization, and research work in a supporting role to help other agencies provide emergency
obstetrics.
Building upon a decades-long commitment on health, UNICEF provides vaccines to 40 per cent of
children in developing countries, and provides technical support on the complicated process of
delivering them. Millions are protected from diseases like measles, polio, diphtheria and tuberculosis
with vaccines that cost an average of only 50 cents per child. Vaccination programs ideally include
supplements of vitamin A and micronutrients that further boost immunity and help prevent
malnutrition-related disorders.
UNICEF is also often first on the ground in declared emergencies to deliver these and other life-
saving interventions, like fresh water and basic medical supplies.
Along with the World Health Organization (WHO), UNICEF supports local programmes that improve
access to basic water and sanitation, which are in turn vital for health, development and education
initiatives.
Basic Education and Gender Equality:
In support of MDG 2 and 3, UNICEF collaborates with countries, donor governments and other UN
agencies to promote, fund and facilitate universal primary education and gender equality.

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This includes improving children’s developmental readiness for school, especially for excluded
children and among disadvantaged groups, via community-sponsored childhood education and
health initiatives.
In all stages of this process, through advocacy and local programmes, UNICEF works to reduce the
gender gap and other disparities in access to, participation in and completion of basic schooling. This
includes` supporting water, sanitation and hygiene improvement in schools to create a child-friendly
environment for learning.
Using practical demonstrations and evidence-based advocacy, UNICEF seeks to help national and
local governments and groups improve educational quality and retention.
Finally, UNICEF also delivers school supplies and tents in emergencies as part of its Back-to-School
programme, helping children return to a more normal, safe environment and protecting their right
to basic education.
HIV/AIDS and Children:
This disease crisis brings poverty and social devastation along with death. To combat it – which
helps reach MDG 6 -- UNICEF works with nations, non-profit organizations and religious groups,
youth organizations and many other partners to organize gender-sensitive prevention education,
skills and service campaigns aimed particularly at adolescents.
UNICEF also works via advocacy and community outreach to help governments, communities and
families support children orphaned by HIV/AIDS.
UNICEF also supports programmes that help prevent mother-to-child transmission of HIV/AIDS and
that increase the number and proportion of women and children receiving antiretroviral drugs.
Child Protection:
In support of Millennium Summit Declaration Section 6 – Protecting the Vulnerable UNICEF advances
protective environments to help prevent and respond to violence, exploitation, abuse and
discrimination, and for children made vulnerable by emergencies.
Focus areas include raising government awareness of child protection rights and situation analysis,
as well as promoting laws that punish child exploiters. Working through advocacy and its local offices
worldwide, UNICEF helps strengthen the resources of schools, communities and families to care for
marginalized children, including those orphaned by HIV/AIDS.
Policy Analysis, Advocacy and Partnerships for Children’s Rights:
This UNICEF focus area centres on Goal 8 – establish global development partnerships -- and also on
strengthening national and local policies that fulfil children’s rights to survive and flourish.
Reducing child poverty is a critical part of fulfilling these rights. To that end, and to accomplish MDG
1, UNICEF promotes sustained national and global investments that leverage resources and results
for children’s well being, including in emergency situations. Working with a wide range of
partnerships including governments, regional bodies, and private and civil society groups, UNICEF
provides input and participates in developing sector-wide approaches (SWAPs), Poverty Reduction
Strategy Plans (PRSPs)and budgets.
Supporting its stand on critical issues,
UNICEF also takes the lead in knowledge management: researching needs, monitoring results and
keeping open records of lessons learned. Among others, UNICEF has helped to develop the following
two data tools, acknowledged by governments and development agencies worldwide as leading
indicators, and is itself the lead agency for monitoring global and country data on the six Goals
related to children.
UNICEF devised The Multiple Indicator Cluster Survey (MICS) method in the mid-1990s. An
inexpensive and effective tool, MICS is a major source of data for monitoring the fulfilment of
human rights and progress toward the Goals. UNICEF promotes its use, trains and assists
governments in implementing the method, and presents collected data. UNICEF has also invested
significantly in the development of DevInfo, software for effectively storing and presenting data in
tables, graphs and maps.

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Further, UNICEF promotes the active participation of children and young people in decision-making
on matters concerning their own well-being. This includes activities from advocating for children’s
rights to freedom of thought and expression, to creating a Web site for them to share ideas.
Progress and Challenges
The world is behind schedule for meeting almost all of the Goals. And the consequences will be
suffered most by children. Millions will die or sicken from preventable diseases. Millions will see
their futures dim because their governments have not provided them with basic education. Experts
agree, however, that meeting the Millennium Goals is achievable by 2015. Reaching them will
require a stronger commitment and focus from all countries on realizing the rights of children, and
therefore toward achieving global development and peace.

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 4. Explain the purpose for the establishment of United Nations
High commissioner for Refugees.

United Nations High Commissioner for Refugees (UNHCR).

The General Assembly on December 3, 1949 adopted Resolution 319 (IV wherein it decided to
establish UNHCR and on December 14, 1950 adopted the Statute of the Office of the United Nations
High Commissioner for Refugees (UNHCR). It replaced the IRO(International Refugee Organisation).
UNHCR came into existence on January 1, 1951. UNHCR was set up initially for a period of three
years." Later, General Assembly decided to prolong the mandate for a further period of five years
and made it renewable beginning from January 1, 1954. In the year 2002, the General Assembly
resolved to continue UNHCR for a period of 5 years from January 1,2004. Antonio Guterres of
Portugal was appointed the High Commissioner on June 15, 2005 for a five year term. In April 2010,
the General Assembly re-elected Guterres to a second five year term. UNHCR is a subsidiary organ of
the General Assembly and it acts under the authority of the General Assembly. The High
Commissioner is required to report annually to the General Assembly, through the ECOSOC and it
report is considered as a separate item. Its headquarters are in Geneva which coordinates the
activities of 274 subordinate offices located in as many as sixty eight States. The Office also develops
appropriate policy to curb the refugee problem. The High Commissioner is elected by the General
Assembly, on the nomination of the Secretary General and is responsible to the Assembly.
The Statute of the UNHCR provided that the High Commissioner shall seek the opinion of an
Advisory Committee on Refugees, if it is established. In 1951, the ECOSOC established the Advisory
Committee on Refugees to guide the High Commissioner, at his request in the exercise of his
functions. The Committee consisted of 15 States of whom 12 were members of the United Nations
and three were non-members. They were- selected on the strength of their devotion to the solution
of the refugee problems. Advisory Committee in 1955 was reconstituted by the General Assembly
and ECOSOC as an Executive Committee known as UN Refugee Fund Executive Committee (UNRFE
Committee) which retained the advisory functions of the Advisory Committee. The membership of
the Committee had the original 15 member States of the Advisory Committee with an additional five
members which became six in 1957. In 1958, the UNRFE Committee was replaced by the Executive
Committee of the High Commissioner's Programme (EXCOM) which not only rendered advices to the
High Commissioner at his request but it also reviews the use of the Emergency fund.
The High Commissioner's programme is administered by a thirty-member Executive Committee,
which generally meets twice a year at Geneva. It consists of representatives of members of the
United Nations and of the specialized agencies, who are elected by the Economic and Social Council
on the widest geographical basis from among those States with a demonstrated interest in and
devotion to e elution of the refugee problems.

Mandated refugees, as defined in the UNHCR Statute, are persons who, owing to well-founded fear
of persecution for reason of race, religion, nationality or political opinion, are outside their country
of origin and cannot or, owing to such fear, do not wish to avail themselves of the protection of that
country. UNHCR is not, of course, concerned with all refugee throughout the World. For instance,
refugees considered as nationals by the countries which have granted them asylum are not a UNHCR
responsibility. Nor is UNHCR concerned with refugees for whom another United Nations body has
assumed full responsibility, such as the Arab refugees from Palestine under the mandate of UNRWA.
2 According to the office of the UNHCR, in 2007 there are estimated 10 million refugees in the World
excluding Palestinian refugees.

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The work of UNHCR is humanitarian, social and non-political. Its basic tasks are to provide
international protection to the refugees within the High Commissioner's mandate and to seek
permanent solutions to their problems by facilitating their voluntary repatriation or their
assimilation within new national communities. The UNHCR initially focused its efforts on aiding
refugees and displaced persons in Europe after World War II, but in later decades effort was shifted
to resettling refugees who were the victims of war, political turmoil or natural disasters in Africa and
parts of Asia and Latin America. The UNHCR was awarded the Nobel Peace Prize twice, in 1954 and
1981 for its excellent work. By 1997 UNHCR provided internal protection and assistance to more
than 12 million people who fled from war or persecution. UNHCR has been an active office for the
cause of refugees. Many States in many parts of the world are under considerable pressure from
public and private groups to treat refugees in accordance with human rights norms.
UNHCR's mandate was to protect refugees but in recent years it has been involved in programmes
for IDP as well. The agency can act to help these people at the request of the Secretary General of
the United Nations or a competent principal organ of the United Nations and with the consent of the
government of the country involved. At various times and in operations of diverse magnitude,
UNHCR has helped IDP in Afghanistan, Angola, Azerbaijan, Bosnia and Herzegovina, Croatia, EI
Slavador, Ethiopia, Georgia and Iraq.

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 5. Short Notes
a) Rights of child

CHILD
The Universal Declaration of Human Rights had stipulated under Para 2 of Article 25 that childhood
is entitled to special care and assistance. The above principle along with other principles of the
Universal Declaration concerning the child were incorporated in the Declaration of the Rights of the
Child adopted by the General Assembly on November 20, 1959. The International Covenant on Civil
and Political Rights under Articles 23 and 24 and the International Covenant on Economic, Social and
Cultural Rights under Article 10 made provisions for the care of the child. In a number of other
international documents it was stated that the child should grow up in a family environment, in an
atmosphere of happiness, love and understanding. Although principles were proclaimed for the care
and development of the child, these principles were not binding on the States. It was therefore
realized that a Convention is prepared which should be legally binding on States.

The Convention on the Rights of the Child (CRC) was adopted by the General Assembly by consensus,
on the 30th Anniversary of the Declaration on November 20, 19891 which came into force on
September 2, 1990. As on September 29, 2012 the Convention had 193 States Parties. The
Convention has 54 articles and is divided into three Parts. The CRC is the first globally binding treaty
for the protection of children's civil, political, economic, social and cultural rights. After the
conclusion of the Convention the Child became an active subject of rights. CRC, in fact, provided a
bill of rights for children. The convention under Article 1 states that a child means every human
being below the age of eighteen years unless under the law applicable to the child majority is
attained earlier.

Rights of the Child

A number of rights have been stipulated III the Convention which includes the following :
1. Right to life (Article 6, Para 1);

2. Right to acquire nationality (Article 7);

3. Right to freedom of expression (Article 13, Para 1)

4. Right to freedom of thought, conscience and religion (Article 14,Para 1)

5. Right to freedom of association and to freedom of peaceful assembly (Article 15, Para 1)

6. Right to privacy (Article 16)

7. Right to family environment (Article 20)

8. Right to education (Article 28, Para 1)

9. Right to benefit from social security (Article 26, Para 1)

10. Right to a standard of living adequate for the child's physical, mental, spiritual and social
development (Article 27, Para 1)

11. Right to the enjoyment of the highest attainable standard of health and to facilities for the
treatment of illness and rehabilitation of health (Article 24, Para 1)

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12. Right to the protection of the law against arbitrary or unlawful interference with his or her
privacy, family, home or correspondence (Article 16, Para 1)

13. Right against exploitation of child labour (Article 32)

14. Right against sexual exploitation (Article 34)

15. Right against abduction, sale or traffic (Article 35)

16. Right against other forms of exploitation prejudicial to any aspect of the child's welfare.

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 b) Rights of Minorities.

The Covenant on Civil and Political Rights under Article 27 provided that persons belonging to ethnic,
religious and linguistic minorities shall not be denied the right to enjoy their own culture, to profess
and practice their own religion, or to use their own language. Inspired by the above, 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 Articles stated the following rights to such
persons.
(1) The existence and the national or ethnic, cultural, religious and linguistic identity of minorities
are to protected within their respective territories by laws and other measures. (Article 1).
(2) Persons belonging to minorities have the right to enjoy their own culture, to profess and practice
their own religion and use their own language. (Article 2).
(3) Persons belonging to minorities have the right to participate effectively in cultural, religious,
social, economic and public life. (Para 2, Article 2).
(4) Persons belonging to minorities have the right to participate effectively in decisions on the
national and, where appropriate, regional level concerning the minorities to whi h th y belong or to
regions in which they live, in a manner not incompatible with national legislation. (Para 3, Article 2).

(5) Persons belonging to minorities have the right to establish and maintain their own associations.
(Para 4, Article 2).

(6) Persons belonging to minorities have the right to establish and maintain, without any
discrimination, free and peaceful contacts with other members of their group and with persons
belonging to other minorities. (Para 5, Article 2).
(7) Minorities may exercise their rights individually as well as in community with other members of
their group without any discrimination. (Article 3).
(8) 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
(Article 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 be
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 or Ethnic, Religious and Linguistic Minorities.
The Universal Declaration of Human Rights by making a pronouncement that all human beings are
born free and equal in dignity and rights had made it clear that the States have unanimously agreed
to outlaw the outmoded concept of hegemony of national group over any other only because of its
numerical strength in the matter of an equal enjoyment of the civil rights and liberties. The General

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Assembly, on November 25, 1981 proclaimed a specific Declaration on the' Elimination of All Forms
of Intolerance and of Discrimination based on Religion or Belief after having considered that religion
or belief is one of the fundamental elements of every person in his life and that freedom of religion
or belief should be respected and guaranteed.

The Declaration stipulated that the right to freedom of thought, conscience and religion stipulated
under Article 18 of the Covenant on Civil and Rights include the freedom to have a religion or belief
of his choice either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching. No one shall be subject to coercion
which would impair his freedom to have a religion or belief of his choice. Article 2 stipulated that no
one shall be subject to discrimination by any State, institution, group of persons, or person on the
grounds of religion or other belief as it constitutes an affront to human dignity. All States shall take
effective measures to prevent and eliminate discrimination on the grounds of religion or belief.
Article 7 of the Declaration laid down that States shall accord in their national legislation, to provide
freedom of religion and belief, in such a manner that everyone is able to avail himself of such rights
and freedoms in practice.

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 c) Rights Of Aged Persons

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 with 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 International Plan of Action on Ageing was adopted by the
General Assembly in 19821 and 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 designated October 1 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-fulfilment 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 force.

(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 and 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

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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
cooperation 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 old and young
generations to cooperate 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. 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 continuous 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.

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 d) Convention relating to statelessness

When a person does not possess the nationality of any State, he is referred to as a stateless person.
A person may be without nationality knowingly or unknowingly, intentionally or through no fault of
his own. For instance, when an illegitimate child is born in a State which does not apply jus soli to an
alien mother under whose national law the child does not acquire his nationality, or where a
legitimate child is born in such a State to parents who themselves have no nationality the child
becomes a stateless person. Statelessness may occur after birth a well. For instance, it may occur as
a result of deprivation or loss of nationality by way of penalty or otherwise. All individuals who have
lost their original nationality without having acquired another, are, in fact, stateless persons. A
stateless person does not enjoy those rights which are conferred to a person in International Law.
For instance, their interest is not protected by any State; they are refused enjoyment of rights which
are dependent on reciprocity.

In order to eliminate the position of a person from becoming a stateless, a few attempts have been
made. For the first time, the Convention on the Conflict of Nationality Laws of 1930 was adopted
which provided under Article 1 that the Contracting States agree to ace r nationality to a person
born in their territory who would otherwise be stat less, and by Article 4 to a person, not born in the
territory of Contracting states, if the nationality, of one of his parents at the time of the person's
birth was that of that State. The above provision was not proved effective and the problem of the
stateless person was not resolved.
The Universal Declaration of Human Rights, after considering the gravity of the problem, provided
under Article 15 that each person is entitled to have nationality and the nationality of any person
cannot be taken or snatched arbitrarily.

The Convention relating to the Status of Stateless person was adopted on September 28, 1954 by a
Conference of Plenipotentiaries convened by the Economic and Social Council to regulate and
improve the status of stateless persons.' The Convention came into force on June 6, 1960. Presently,
the Convention has 44 States Parties. The Convention defined the term stateless person as a person
who is not considered as a national under the operation of its law. The Convention: gave such
persons judicial status but no provision was made to reduce or eliminate statelessness. The General
Assembly expressed its desire on December 4, 1954 that an International Conference of
Plenipotentiaries be convened to conclude a convention for the reduction or elimination of future
statelessness as soon as at least twenty States had communicated to the Secretary-General their
willingness to co-operate in such a Conference. 1 The Conference which met at Geneva on March 24
to April 18, 1959, adopted provisions aimed at reducing statelessness at birth, but failed to reach
agreement on how to limit the freedom of States to deprive citizens of their nationality.
Consequently, the Conference recommended that it be reconvened in order to complete its works.
The Conference met again in New York from August 15 to 28, 1961 and adopted a Convention on the
Reduction of Statelessness. The Convention was opened for signature on August 30, 1961 and it
came into force on December 13, 1975.
The Convention under Article 1 stated that a Contracting State shall grant its nationality to a person
born in its territory who would otherwise be stateless :
(a) at birth, by operation of law, or

(b) upon an application being lodged with the appropriate authority, by or on behalf of the person
concerned.

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Para 3 of Article 1 further stated that a child born in wedlock in the territory of a Contracting State,
whose mother has the nationality of that State, shall acquire at birth that nationality if it otherwise
would be stateless.
The Convention followed the idea adopted by the Convention on the Conflict of Nationality Laws of
1930 by making a provision that if the law of a Contracting state entails loss of nationality as a
consequence of any change in the personal status such as marriage, termination of marriage,
legitimation, recognition or adoption, such loss shall be conditional upon possession or acquisition of
another nationality. Article 6 of the Convention stated that if the law of a Contracting State provides
for loss of its nationality by a person, spouse or children as a consequence of that person losing or
being deprived of that nationality, such loss shall be conditional upon their possession or acquisition
of another nationality.
The above efforts to eliminate or reduce statelessness have only a limited effect in so far as the
determination of nationality is still within the competence of each State.

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 e) Media and the protections of human rights.

However, years after the creation of the revolutionary document, most people are still unaware of
their rights. According to poll conducted recently by Amnesty International, the largest human rights
organisation in the world, only 4 8% of adults and 4% of youth in the Unites States are aware of
“foundation stone for human rights”. It is here that the media can play a salutary role in creating
larger awareness of the concept of human rights, Basic human rights that would constitute the right
of every individual to his fundamental freedom without distinction as to race, sex, language or
religion. Human society has developed from Stone Age to space age. But while some nations or
societies have developed apace the others seem to be nowhere in the race. The rights which citizens
enjoy vary depending upon the economic, social, political and cultural developments. In view of the
fact that there is a revolutionary change and growth in every sphere of life and mainly in the
communication and media world, media today, plays a decisive role in the development of society.
Thus the role of media in protection of human rights cannot be ignored or minimized. Media is a
communicator of the public. Today its role extends not only to giving facts as news, it also analyses
and comments on the facts and thus shapes the views of the people. The impact of media on society
today is beyond doubt and debate. The media has been setting for the nation its social, political
economic and even cultural agenda. With the advent of satellite channels its impact is even sharper
and deeper. With twenty-four hours news-channels, people cannot remain neutral to and
unaffected by what the channels are serving day and night. It is, 5 therefore, of paramount
importance that the media plays an important and ethical role at all levels and in all parts of the
country and the world. Being the Chairman of the Press Council, it would be appropriate for me to
refer to the reports of this statutory authority into the crisis that the nation faced in the 1990s in the
State of Punjab and Jammu and Kashmir. When militancy was at its peak in these two states, the
credibility of the media and threats to their free functioning also came under the scanner. Also
inquired into by the Council were the reports of human rights violation by the Army and the para
military forces in Kashmir. In Punjab, the press was under threat from militants who had imposed a
crude form of censorship on the local press by enforcing publication of their dictates so as to
perpetuate the fear psychosis, the mainstay of terrorists. In a double jeopardy, the government
warned the press of use of rule of the law against publication of any 'objectionable advertisements
or subversive writings. The Press Council in its report of 1991 cautioned that it would not be
desirable to shut out the point of view of the militants completely as the people in a democratic
society have a right to know what the militants stand for and the basis of their arguments, but there
is a point beyond which the state cannot abdicate. While it counselled the press to exercise due
caution in disseminating the press notes of the militant groups, equal emphasis was laid on the need
for the press to be vigilant against official plants to maintain its credibility. Soon thereafter in
Kashmir, human rights excesses by army and the para military 6 forces had invited international
concern and criticism. The role and the plight of the press also came under scanner. The Council
found that the threat to the freedom of the press in Kashmir came primarily from the climate of fear
that the militants had generated and caused the media to abandon there post. It was felt that the
newspapers must be willing to accept the risks that go with their profession. Experienced hands
should be posted who would report all sides and aspects of events fairly and objectively. The result
of inquiry into the report of human rights excesses were astonishing. It was found that while some
excesses had indeed taken place, been enquired into and processed, the most serious instances
were without any foundation. Clearly, the psychological warfare by terrorists, orchestring human
rights violation needs careful, unbiased and thorough investigation to sift the chaff from the grain.
Media can play a major role in protecting and promoting human rights in the world. It can make

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people aware of the need to promote certain values in the cause of human rights which are of
eternal value to the mankind. Peace, non-violence, disarmament, maintenance and promotion of
ecological balances and unpolluted environment and ensuring human rights to all irrespective of
caste, colour and creed should be the minimum common agenda for the media. The media can
perform this role in different ways. It can make people aware of their rights, expose its violations
and focus attention on people and areas in need of the protection of human rights and pursue their
case till they achieve them. 7 Media can also give publicity to the individuals and organisations,
which are engaged in securing human rights. This will encourage as well as motivate others to do the
similar work. Media can inform and educate the people of their rights and suggest ways and means
by which they can solve their problems and thus empowering them to protect their rights. Since
media plays the role of communication between the state and the public, it can also play an
effective role of making the authorities aware of their duties. Media’s new role today is reporting,
analysing and commenting. It faces a challenge in playing the role in protecting human rights in the
world. While playing this new role, there is risk of its misuse. For that self-regulation is the need of
the hour. Journalists should set ‘Lakshman Rekha’ while reporting human rights violations. The main
aim before the journalists should be to give facts but not in a manner and with the purpose to create
sensation and to arouse the sentiments of the people. Projection and language should be decent
and civilised. Journalists should not add insult to inquiry. Media should refrain from giving
statements and pictures that are flaring. Since media is the mirror of the society, care should be
taken that the mirror is not hazy. 8 While reporting such violation media should not get influenced
by authorities. It should look deep into the problem and provide solutions. Mere reporting of the
facts is not enough. It should give reasons of the problem and the nature of the violations and then
give solutions. Press has a sacred duty to focus human rights violations and then measures for
protecting them. Freedom of expression is a sacred right well accepted over the globe and
journalists should respect this freedom. In Indian constitution, it finds place as a guaranteed
fundamental right. The Government of India in tune with constitutional mandate professes its
anxiety to protect and safeguard this fundamental right. But no right and for that matter the right to
freedom of expression is absolute and unfettered in all circumstances but bound by duty to maintain
peace and harmony of the body polity by exercising prudence and restraint in the exercise of right to
freedom of speech. If exercise of this right is likely to inflame passion, the right to freedom of
expression needs circumspection and consequent restraint for greater good of the society. The apex
court of the country in a watershed judgment in the case of Olga Tellis declared that a man has not
only a right to live but to live with human dignity. Consequently all attributes for living with the
dignity of a human soul namely education, shelter etc. are to be guaranteed and welfare activities of
the State must be directed to ensure socio-economic condition where no one in the 9 country is
deprived of the basic requirements to lead a dignified life. The media being the watchdog of the
nation must work for guiding the people and the government to move towards such goal relentlessly
and in right direction.

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