CONTENTS

UNIT – I

ORIGIN AND DEVELOPMENT OF HUMAN RIGHTS Human Rights in Indian Tradition Human Rights in Western Tradition Concept of Natural Rights Important Questions

UNIT -II

HUMAN RIGHTS UNDER UNITED NATIONS CHARTER Human Rights: International Organisation of International Cooperation Universal Declaration of Human Rights International Covenant on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966) European Convention on Human Rights Important Questions

UNIT – III

HUMAN RIGHTS UNDER INDIAN CONSTITUTION Fundamental Rights under the Indian Constitution Directive Principles of State Policy and Human Rights Public Interest Litigation Important Questions

UNIT - IV

PROTECTION OF HUMAN RIGHTS - 1993 State Human Rights Commission The National Commission for Minorities Act, 1992 Commission on Schedule Castes and Schedule Tribes Important Questions

UNIT - V

ORIGIN-NATIONAL AND INTERNATIONAL AND ITS REMEDY - International Humanitarian Law. - Refugee Law - Role of Judiciary Important Questions Suggested Readings

 

 

UNIT-I

ORIGIN AND DEVELOPMENT OF HUMAN RIGHTS Introduction: Broadly speaking, human rights may be regarded as those fundamental and inalienable rights which are essential for life as human being. Human rights are derived from the principle of Natural Law. The expression "human rights" denotes all those rights which are inherent in our nature and without which we can not live as human beings. In other words 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 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 protect. Purpose of Human Rights: The purposes of securing human rights as such are to provide protection to these rights against the abuses of power committed by the organs of state; to establish institutions for the promotion of living condition of human beings and for the development of their personality; and at the same time, to provide effective remedial measures for obtaining redress in the event those rights are violated. Korel Vasak has aptly remarked that the "human rights, which are essentially individual in character, for they are meant to be enjoyed by individuals, constitute a social phenomenon by virtue of those for whom they are intended. Sources of Human Rights: International human rights law derives from the variety of sources which are as follows- 1. International Treaties: A number of multilateral treaties relating to human rights are in

force which are legally binding on those states which are parties to them. The most important amongst them is the United Nations Charter itself which is binding on all the states in the World and establishes at least general obligations to respect and promote human rights. Regional treaties on human rights such as European Convention on Human Rights, American Conventions 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: 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. A number of rights are at present included within customary international law and consequently they are the sources of International Law.

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 are the sources of International law. 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.

 

 

4. Judicial Decisions: Decisions of the various Judicial bodies are relevant in the determination

of the rules on human rights issues.

For example- International Court of Justice, European Court of Human Rights, a Regional Court.

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. For Example-Human Rights Law Journal, Human Rights Review, and European Law Review.

Origin and Development: the history of origin and development of human rights is very fascinating. The roots of human rights are found very deep in the eternity in the ancient and ancient most cultures which have been rooted out by passage of time and rule of human atrocities or barbarianism of certain tribes. The origin and development of Human Rights has been on two bases, the first is the National and the second is the International. On the National Base: The conception of Human Rights got its breed to originate and develop in the form of religion in different countries and in different times. The conception may be felt to originate in the ideas of mercy, kindness and pity on human beings in various scriptures. Vedas are the most ancient or the first religious book of mankind, revealed in Aaryavarta the great land of Aryans. Much earlier than the Greeks and Romans, Ancient Indian Philosophers and thinkers expounded a theory of higher moral law of Dharma about 5000 year ago, with a view to establish harmonious social order free from the traces of conflicts, exploitations and miseries. It is this Dharma of the Vedic period the supreme law, which sustained individuals together in society and provided for the protection of the right of man. In the Greek and Roman Laws, the principles of International Law appear to be attached with the principles of natural justice. Plato (427-348 B.C.) was one of the earliest writers to advocate a universal standard of ethical conduct. The stoic philosophers found all creatures being pervaded by a Universal Power, which principle was already established in the period of Mahabharata (5000 BC) By the end of the middle ages, the liberal political principles were affiliated with the principles of natural justice and a social need of recognition of human rights was felt to be turned into reality rather a mere philosophy. During this very period, the failure of the rulers to fulfil the mandates of natural law and unexpected liberty of individual expression, the principles of natural law took their steps to take shape of human rights. The modern version of human rights jurisprudence may be said to have taken birth in India at the time of British rule. The origin of this ideal in India lies in the history of India especially in the struggle for freedom against the British rulers. Charter of Liberty is one of the steps towards the realization and implementation of Human Rights. Magna Carta of 1215, Petition of Rights of 1628, Habeas Corpus Act of 1679, Bill of Rights of 1689 are some of such steps taken in England.

 

 

Charter of Liberty: Charter of Liberty Constitutes steps towards the realization and implementation of Human Rights. The contents of the said historic documents are given below - 1. Magna Carta: Much material relating to human rights is set out in the Magna Carta (also

called Magna Charta)3 that was imposed upon King John by the Pretates, Earls and Barons, after having defeat at the hands of the King of France, on June 15, 1215. This declaration of freedom dealt with the rights of different contemporary sections of the society, for instance, that the churches will be independent of the control of the king, London and other cities will be free to utilise or practice their freedoms and customs. Unjust taxes will not be imposed upon traders or businessmen and so on. 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.

2. Petition of Rights: It is worthy to mention that the Petition of Rights in 1628 and the Habeas Corpus of 1679 were based directly on clause 39 of the Magna Carta of 1215. Sir Edward Coke who was dismissed as a Judge in 1616 because he could not comply with the command of the King moved the petition of Right in Parliament in 1628 as a member of Parliament. At that time, Sir Coke was seventy-six years of age. The Petition of Rights contained eleven clauses. Clause 10 deals inter alia with the human rights. It reemphasises that "no freeman in, any such manner as is before mentioned, be imprisoned or detained." On June 7, 1628 the King came to the House and assented to the petition of Rights.

3. Habeas Corpus Act: Habeas Corpus Act was officially titled as an Act for the better securing

the Liberty of the subjects for prevention of imprisonment beyond the seas. This Act was enacted by Charles Second in 1679. This Act was mainly concerned with the prisoners who were imprisoned in some criminal offence, that the validity of his sentence be expeditiously heard. By this provision protection of the freedoms of the people of the country was enforced.

4. Bill of Rights: John Somers drew the Declaration of Rights which was assented to by King

William. The said Declaration became the Bill of Rights of 1689. The principal clauses of the Bill of Rights dealing with human rights are stated below-

Clause 9 provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of parliament. Clause 10 says that the excessive bail ought not be required, nor excessive fine imposed, nor cruel and unusual punishments inflicted.

Macaulay puts in a nutshell the contents and impact of the Bill of Rights in the following words-" The Declaration of Rights though it made nothing of law which had not been laid before, contained the germ of the law which gave religious freedom to the Dissenter, of the law which secured the independence of the Judges, of the law which limited the duration of the parliaments, of the law which placed the liberty of the press under the protection of jurimas, of the law which prohibited of the slave trade, of the law which abolished the sacramented test, of the law which relieved the Roman Catholics from Civil disabilities, of

 

 

the law which reformed the representative system, of every good law which has been passed during more than a century and a half, of every good law which may hereafter in the course of ages, be found necessary to promote the public zeal and to satisfy the demands of public opinion" .

James Madison being impressed and influenced by the Bill or Rights of 1689 pressed for a similar Bill of Rights for the people of the United States. He got the amendments to the constitution of the United States accepted by the Senate and approved by the House of Representatives in 1791.

Modern Conception of Natural Law Bearing Human Rights: It was particularly the 17th and 18th centuries in which the conception of natural law and the natural rights inherent in it were originated. During the 18th century John Locke broadly discussed that certain rights are apparently available to a person being a human being only, because in the state of nature they existed and the main rights of those were the right to life, right to liberty and right to property. When the humanity entered the civil social life pursuant to social contract, then the enforcement only of such rights was surrendered to the State and not these rights themselves. The state which can not ascertain these reserved rights whereas the State itself exists under that contract that obliges it to protect the interests of its members that is the subjects or people then it gives birth to a responsible and popular revolution. Social Contract Theory: Social contract theory was another cause which survived the conception of human rights and pressed its power for the development of it. These social contract writers revitalized the concepts of natural rights and put forward certain dynamic contents which greatly influenced the American and French Revolution.

1. American Revolution: The American Revolution period from 1763 to 1788 was a very important age of constructive ideas and progressive expectations. There were many factors which contributed towards the rise of this revolt, for instance, the growing importance of the notion of natural rights teachings of the writers of social contract doctrine, the British Bill of Rights of 16896 and the coercive actions of George III (1760-1820) and his predecessors.

The British Government was of the view that the colonies should also share in the expenses incurred in their administration. With this view, the British Government in the last half of the 18th century started to take various regulatory measures under which it introduced certain new taxes. This resulted in militant opposition by the American people. They argued that since they did not have their representatives in the British Parliament, it had no right to impose taxes upon them.

The notion of independence of the people of the American States and their determination to overthrow the authority of the Imperial Tyrannical Government resulted in their Declaration of Independence on July, 4, 1776. This unique document in the line of Human Rights, was drafted by Thomas Jafferson which attacked not only the conception of the Divine Right of the King to rule but also a Government which has no reflection of the will of the people. This documents declared

 

 

"We hold these truths to be self-evident that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and pursuit of happiness, that to secure these rights Governments are instituted among men deriving their just powers from the consent of the governed, that whenever any form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it and institute new Government",

On 15th December, 1791 the first ten amendments of the constitution were made which were known as Bill of Rights and later on became part of the Constitution of U.S.A. They adopted these ten Amendments to the Constitution in 1791. Bill of Rights was not applicable to the newly freed negroes, these amendments extended the Civil Right Liberties to them. They imposed obligation upon the State to respect these rights. About the Bill of Rights Jafferson was of the view that all people are entitled to it who are against that Government which is on this earth whether it may be common or particular, and which rights no just Government should reject.

2. French Revolution: The Declaration of the Rights of Man and Citizen was adopted on

August 26, 1789 by the representatives of the French people in the National Assembly. The said Declaration contains some important human rights which are as follows-

1. Men are born and remain free. (Article-I)

2. The natural and imprescriptible rights of man, such as, liberty, property, security and

resistance to oppression are to be preserved. (Article-II).

3. No man may be indicted, arrested or detained in cases except in accordance with law. (Article-VII)

4. Only strictly necessary punishments may be established by law and no one may be punished except by virtue of a law. (Article-VIII)

5. Every man being presumed innocent until judged guilty. (Article-IX).

6. No one may be disturbed for his opinion in religion (Article-X).

7. Freedom of opinion is one of the most precious of the rights of man (Article-XI) 8. 9. Property being an inviolable and sacral right is not to be deprived of except for an

obvious requirement of public necessity, certified by law and on condition of just compensation in advance. (Article OXVII).

At the international level, rules and procedure for protection of human rights were developed when there were abuses of the rights of the foreigners by local authorities. A number of international tribunals and claims commission were set up throughout the nineteenth century to maintain minimum standards for treatment of aliens in a country. The community of states has increasingly realised that the welfare of individual is a matter of international concern

 

 

irrespective of his nationality. One of the achievements in this regard in the international field was to confer international protection to nationals of a state who were minorities within its territory. At the end of the First World War, the principal Allied and Associated Powers concluded a series of treaties with countries in Eastern Europe and the Balkano which contained provisions to the effect that all inhabitants of a state irrespective of their language, race or religion were to be given full protection of life, liberty, and free exercise of any creed, religion or belief. After the formation of the League of Nations in 1919 nationals who belonged to social, religious or linguistic minorities were assured the equal treatment and security in law and in fact as other nationals. All these stipulations constituted obligations of international concern under the guarantee of the League of Nations . These treaties were ineffective after some years. After the Second World War the United Nations was not indifferent to protection of minorities. After the recognition of the French Declaration, the Western and Eastern European countries, Soviet Union of Rusia and Asian and some other countries of the world also recognised human rights in their Constitutions. 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 1787 with amendments in 1789, 1865 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. 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. Virginia Bill of Rights: This Bill of Rights is a Declaration of rights made by the representatives of Virginia and contains a set of human rights which are as follows- 1. That all men are by nature equally free and independent and have certain inherent rights,

namely, the enjoyment of life, liberty and acquiring and possessing property (Section 1)

2. That no man or set of men are entitled to exclusive or separate emoluments or privileges from the community (Section 4).

3. That an accused has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses to call for evidence in his favour and to a speedy trial by an impartial jury, nor can he be compelled to give evidence against himself; that no man can be deprived of his liberty except by the law of the land or the Judgement of his peers. (Section 8).

4. That no cruel and unusual punishment ought to be imposed. (Section 9).

5. That the freedom of the press is one of the great bulwarks of liberty. (Section 12)

6. That all men are equally entitled to the free exercise or religion according. to the dictates of

conscience.

 

 

On International Base: At the end of the First World War of 1919, some attempts on modest level were made through the treaty of Versailles to promote and universalise human rights, but it met with no success. It was consistently realised that the rights of individuals must be universalised so that it may be guarded against its violation by one's own state. Influenced by such desires, the Institute of International law initiated measures to study and formulate the human rights provisions. Its pronouncements had no validity except the prestige of the members which they held. Its chief aim was "to extend to the entire world international recognition of the rights of man". Accordingly, a proclamation of the right of man was issued by it in 1929. In all six articles were adopted which prescribed the duties of every state. After the end of the First World War, some constructive changes were begun to be reflected. They began to take a deep interest in the protection of Human Rights. In the conduct and practice of League of Nations the evidence of the protection of the rights of the minorities and their right of self determination are found. The special consequential benefit of the League of Nations, the Anti-Slavery convention (convention in protest of Slavery Custom) of 1922 may be taken. In the same way a child welfare committee prepared the Geneva Declaration on the rights of the child, and inspired many nations to accept it. However, the League of Nations rejected this declaration in 1924. In other spheres of the international law also the universal interest for individual rights was visible. The International Labour Organisation, the Committee on International Intellectual Cooperation and the Health Committee which was formed under the auspices of the League of Nations are worth mention. These organisations worked to form an atmosphere by their actions for the entry of the League of Nations therein, so that human states for workmen at the international level may be ascertained. In the pursuit of internationalization of human rights the international labour organisation and other private organisations have played crucial and constructive role in the development of consensus of world community in this respect. The Philadelphia Declaration of the International Labour Organisation at its 26th session adopted, inter alia, the following resolution. "All human beings, irrespective of race, creed or sex, have the right to pursue both their material well being and their spiritual development in conditions of freedom and dignity of economic security and equal opportunity." Universalisation of Human Rights: As a matter of fact the Human Rights were universalised after the end of the Second War. President Roosevelt of U.S.A. on 6th January, 1941 declared four fundamental freedoms of human beings. These are-

1. Freedom of speech and expression.

2. Freedom of every person to worship God in his own way.

3. Freedom from want, and

4. Freedom from fear.

Besides, the Prime Minister of Great Britain, Mr. Wincent Churchill curiously felt the violation of human rights and racial persecution. He declared that racial discrimination and persecution

 

 

would end at the end of the Second World War. This joint declaration of the two Great Powers of the world had its effect genuinely on the development of the movement for human rights, and as a consequence twenty six nations signed the declaration of United Nations of January 1, 1942 which contained the principle of the Atlantic Charter, all the Governments signing the declaration pledged themselves to cooperate with each other and not to make any separate armistice or peace with the enemies. Both the World Wars of 1919 and 1939 inspired the awakening to the values of human life. The United Nations Charter is pervaded by the deep attachment of human rights. The aim of the Charter is to save the humanity from the scourge of wars and the complete development of human personality, his liberties and scope for the same. Finally, it was the San Francisco Conference held from 25th April to 26th June 1945 at which the Charter of the United Nations had emerged, incorporating numerous provisions providing for promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex language, or religion8. Working in unison with the Economic and Social Council, the universal Declaration of Human Rights was adopted by the General Assembly on December 10, 1948, which formed the basis for the preparation of other documents on human rights. Thus the term 'Human Rights' 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. 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. Concept of Human Rights The concept of Human Rights is not anything new. These are the minimal rights which every individual must have against the State or other public authorities by virtue of his being a member of the human family irrespective of any other consideration. This concept was earlier referred to as "Natural Rights". The contemporary use of the term "Human Rights" as it finds mention in the Universal Declaration of Human Rights of 1948 is of course a revival of the eighteenth century concept of the "Rights of Man" . It is clearly evident from Article 1 of the Declaration which runs as - "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." Further Article 3 of the declaration provides that the right to life, the right to liberty and the right to security of persons are basic rights upon which the enjoyment of all other rights are dependent. The same approach has been adopted in India. Section 2(d) of the protection of Human Rights Act, 1993 defines human rights as "the rights relating to life liberty, equality and dignity of the individuals guaranteed by the constitution or embodied in the international covenants and enforceable by courts in India.

 

 

Nature and Meaning of Human Rights: Human rights are those moral rights which are owed to each man or woman by every man or woman solely by reason of being human. Human Rights are distinguished from other moral rights in possessing the following inherent characteristics. 1. Universality. 2. Individuality. 3. Paramountcy 4. Practicability. 5. Enfoceability. However, there are two main approaches to explain the nature and meanings of human rights. These are in particular-

1. Philosophical or Theoretical Approach: There are following five theories to explain the rights of man These are-

(a) TheNatural Theory; (b) The Legal Theory; (c) The Historical Theory of Rights; (d) The Social Welfare Theory of Rights; and (e) The Idealistic Theory of Rights.

2. Pragmatic or Utilitarian Approach : It is important to note that during the initial period after the establishment of the United Nations there was considerable difference of opinion regarding the meaning and nature of human rights as referred to in the Charter of the United Nations but now it is "generally agreed that the meaning of 'human rights and fundamental freedom' is to be ascertained by reference to the human rights catalogue proclaimed in the major United Nation human rights instruments, starting with the universal declaration of human rights". Thus, this 'this' catalogue should be our minimal definitional guide on what the international community understands by 'human rights and fundamental freedoms'.

Basis of Human Rights: Views of the jurists on the questions as to basis of human rights are divergent which have led to the emergence of different theories : prominent amongst them are as follows-

1. Natural Law Theory: According to ancient thinkers and philosophers, Human Rights have been derived from the principle of eternal law as revealed in natural law as being closely related both to justice and ethics. Natural law notion was reflected in the writings of Aristotle, Cicero, Gaius and other philosophers. Later, Christian Fathers extended the authority of natural law by asserting to it a divine origin. National Law theory was practised by Romans in the formation of body of legal rules for the administration of justice.

Natural law as the basis of human rights has been criticized on a number of grounds.

 

 

2. Social Utility Theory: Another theory which has been advocated as to the basis of human rights is the social utility. Under the social utility theory of human rights, those rights are considered genuine human rights which tend to increase the total happiness of human beings.

Kinds of Human Rights: Human Rights are of two kinds-

1. Civil and Political Rights: Civil rights or liberties are referred to those rights which are related to the protection of the right to life and personal liberty. Such rights include right to life, liberty and security of persons, right to privacy, home and correspondence, right to own property, freedom from torture, inhuman and degrading treatment, freedom of thought, conscience and religion and freedom of movement.

Political rights may be referred to those rights which allow a person to participate in the Government of a State.

2. Economic Social and Cultural Rights: Economic Social and cultural rights (so called

'freedom to') are related to the guarantee of minimum necessities of life to human beings. Right to adequate food, clothing, housing and adequate standard of living and freedom from hunger, right to social security, right to physical and mental health and right to physical and mental health and right to education' are included in this category of rights. These rights are included in the International Covenant on Economic, Social and Cultural Rights.

HUMAN RIGHTS IN INDIAN TRADITION Human Rights in India: The term 'Human Rights" is comparatively recent in origin, but the idea of human rights is as old as the history of human civilization. The Indian thinkers are, however, of the view that it is not justified to limit the origin of the concept of human rights to only western civilization. They opine that the philosophy of human rights had already occupied a place of prime importance in ancient Indian Brahmanical society. The new phrase "Human Rights" was adopted only in the present century from the expressions previously known as "Natural Rights" or "Rights of Men". In India, the Dharma of the Vedic period and in China, the jurisprudence of Laotze and Confucius protected rights. Philosophy of Human Rights in India has come a long weary way yet the progress through the historical path has always remained gradual and never lost its link with the past. The Indian history is warranted by the fact that human rights jurisprudence has always occupied a place of prime importance in India's rich legacy of historical tradition and culture. This is evident in the prevalence of different cultures, traditions, faiths in India. The truth is that what the west has discovered about human rights now, India had embedded the same in its deep-rooted traditions since time immemorial. Human Rights in Ancient India: Indian Philosophers and Thinkers expounded a theory of higher moral law over and above positive law embodying certain values of universal validity like Dharma (righteousness), Artha (wealth), Kama (desires) and Moksha (salvation), with a view to establish harmonious social order by striking a balance between inner and outer, spiritual and material aspect of Iife.

 

 

It is Dharma which has impelled men since Vedic ages to strive for 'righteousness'. The Natural Law so revealed in Vedas, Puranas, Mahabharata, Bhagwad Gita, etc. was extolled by the mystics, saints, poets and philosophers during the Vedic age. As expounded by the saints of Vedic time it is nothing but a reinstatement of Natural Law with religious fervour to enthuse people towards the path of Dharma, enlightenment and unity. It is this higher law of morality, justice and righteousness. The root of the concern for human rights in Vedic age may be traced in religion, humanitarian traditions and the unceasing struggle for freedom and equality. The philosophers of Vedic age endeavoured to define human rights as those rights which were inherent in our nature. They considered human rights as 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. We find many references in Ancient scriptures and epics to the effect that, loZfi lqf[ku% larq loZ larq 

fujke;k% (let every one be happy, let everyone be free from all ills). In the most references, leaving lust, anger mental derelictions and narrowness, to deal with others with truth and liberality has been preached in the Vedas 'Vasudhaiva Kutumbakam' olq/SodqVqEcde~ (the whole world is certainly one family), has been preached and pressed in Vedic literature. The concept of Dharma, the Supreme Law governed the Sovereign and the subjects alike, covering the basic principles involved in the theory of rights, duties and freedoms. The early Smrities inculcate upon the King principles and policies of government involving the conception of a welfare state and that of ruler's complete identification with his subjects. Kautilya, the author of the celebrated political treatise, Arthashastra, not only affirmed and elaborated the civil and legal rights first formulated by Manu but also added a number of Economic rights. The study of Rigveda reveals that there was a rich jurisprudence in ancient India which provided an adequate frame-work for the regulation of the behaviour of ordinary persons as well as the Sovereign, the King. The concept of Dharma, the Supreme law which governed the Sovereign and the subjects alike covering the basic principles involved in the theory of rights, duties and freedoms. There is, however, witnessed a downfall of Human Rights jurisprudence in post-vedic age. In the post vedic period, the rise of Buddhism and Jainism were certainly a reaction against the deterioration of the moral order as 'against the rights of privileged class. A close scrutiny of Buddhist period reveals that people were equal in all fields of their life. After Buddha, Ashoka protected and secured the most precious of human rights, particularly right to equality, fraternity, liberty and happiness. It is, however, unfortunate that Human Rights jurisprudence witnessed downfall with the decline of J Mauryan Empire. Since the decline of the Mauryas, India had been frequently invaded by the foreigners the Greeks, the Partians, the Sakas and the Yuech-Chis. It was only Chandragupta II (Vikramaditya) who defeated the foreigners and united India under one sovereignty. It was an

 

 

age of glory and greatness in every branch of national life. There was no forced labour, crimes were rare, king personally supervised the whole administration. Harshavardhana was the last emperor of Hindus in India. He devoted his whole time to promote the welfare of his people. After the breakup of his empire the whole India was split up. It was under Muizz-ud-Din that Muslim empire was founded in India. Human Rights in Islamic Era: The concept of human rights got lost on its way in the dark and narrow alleys of the middle age. Significance of Muslim rule in India from the point of view of the Human Rights was counter productive to harmony, justice and equality14. With the Mughal rulers especially Akbar a new era began in Mughal history of India in the field of Human Rights, with his policy of universal reconciliation and tolerance. Various European travellers who visited Akbar's empire, highly appreciated his zealous regard for rights and justice. The trend initiated by Akbar came to be reversed by Aurangzeb though the Marathas and the Sikhs opposed and fought the fanaticism of Aurangzeb and his successors. 'The sheer indifference to Human Rights ultimately gave rise to Bhakti movement in India upholding value of truth, righteousness, justice and morality. Great saints like Shankara, Ramanuja, Madhava, Tulsidas, Kabir, Guru Nanak and others reinterpreted the Vedic Dharma to re-establish the supremacy of Indian Vedic values over alien ideals and philosophy. Human Rights in British India: The modern version of human rights jurisprudence may be said to have taken birth in India at the time of British Rule. The origin of this ideal in India lies in history of India especially during the struggle for freedom against the British rulers. The efforts to secure civil liberties and human rights in India were on even in the 18th century but the real process started with the adoption of the famous Karachi Resolution of 193115 by the Indian National Congress followed by the objective Resolution of December 13, 1946 which was adopted by the Constituent Assembly unanimously on January 22, 1947. Both these resolutions were almost like a charter on human rights consisting of social, economic, and political justice. The founding fathers of the Indian Constitution therefore had to assure the people in general and the different sections of the society in particular of a fair deal16. They conceived the constitution not only as a mechanism for governing the country but also as a potent instrument for social change and a code of human rights. With the commencement of the new Constitution on January 26th, 1950 the natural law rights have been incorporated in the Preamble, in Chapter III and IV concerning Fundamental Rights and Directive Principles of State Policy. The Preamble, Fundamental Rights and the Directive Principles of State policy together provide the basic Human Rights for the people of India. Democratic socialism spelt out in the Preamble and the Directive Principles is meant to provide rich contents in which the fulfilment of Human Rights are hoped to be achieved. It may be mentioned that the framers of our constitution were influenced by the Bill of Rights of the American Constitution, the French Declaration of the Rights of men and the British Constitution and the Universal Declaration of Human Rights which was adopted by the United Nations. But neither in any of the resolutions nor in the Indian Constitution the words 'human rights' have been used although its essence is undoubtedly present in them. So the idea of human rights is as old as the history of human civilization but the name 'Human Rights' given to it is recent in origin. The rights of man have been the concern of all civilizations

 

 

from time immemorial. Much earlier than the Greeks and Romans, ancient Indian philosophers and thinkers expounded a theory of higher moral law of Dharma about 5000 years ago, with a view to establish harmonious social order free from the traces of conflict, exploitations and miseries. It is this higher law of morality, justice and righteousness which has been continuously guiding and directing Hindu thought, spirit and action from times immemorial and would continue to guide future in a timeless fashion. It is this Dharma or the Natural law that has helped the Indian people to come out victorious through the different stages of their historic revolutions. Further, with the national struggle for freedom a concrete movement for claiming the human rights for the people of India took shape in which people from all walks of life joined Gandhiji and Nehru to achieve 'Swaraj' for themselves. Thus the wise founding fathers construed the constitution of India not only as a mechanism for governing the country but as an instrument for social change, whereby shall be secured to all the people of India, justice, social, economic and political and assure the people of different sections of society a fair deal with a hope to wipe every tear from every eye ending the poverty, ignorance, disease, exploitation and inequality of opportunity. To be true, no society is free, no state democratic, unless human rights are actualised by every citizen. It is with this purpose in mind that the protection of Human Rights Act, 1993 has been enacted for the better protection of Human Rights. The Act provides for the constitution of a National Human Right Commission (NHRC) and a commission for each State. HUMAN RIGHTS IN WESTERN TRADITION Human Rights in Western Tradition: Human rights are a product of a philosophical debate that has raged for over two thousand years within the European societies and their colonial descendants. This argument has focused on a search for moral standards of political organization and behaviour that is independent of the contemporary society. The earliest direct precursor to human rights might be found in the notions of 'natural right' developed by classical Greek philosophers, such as Aristotle but this concept was more fully developed by Thomas Aquinas in his Summa Theologica. Hugo Grotius further expanded on this notion in De jure belli et paci, where he propounded the immutability of what is naturally right and wrong. As the reformation caught on and ecclesiastical authority was shaken and challenged by rationalism, political philosophers urged for new bases of natural right. Thomas Hobbes posed the first major assault in 1651 on the divine basis of natural right by describing a State of Nature in which God did not seem to play any role. Further reinforcement of natural rights came with Immanuel Kant's writings later in the 17th century that reacted to Hobbes' work. In his view, the congregation of humans into a state-structured society resulted from a rational need for protection from each other's violence that would be found in a state of nature. Kant's political doctrine was derived from his moral philosophy, and as such he argued that a State had to be organized through the imposition of, and obedience to, laws that applied universally. Nevertheless these laws should respect the equality, freedom and autonomy of the citizens. In this way, Kant prescribed that basic rights were necessary for civil society.

 

 

John Locke wrote a strong defence of natural rights in the late 17th century with the publication of his Two Treatises on Government, but his arguments were filled with references to what God had ordained or given to mankind. Locke had lasting influence on political discourse that was reflected in both the American Declaration of Independence and France's Declaration of the Rights of Man and the Citizen, passed by the Republican Assembly after the revolution in 1789. The French Declaration of rights proclaimed 17 rights as "the natural, inalienable and sacred rights of man. The social contract views of writers such as Jean- Jacques Rousseau, who argued that people agree to live in common if society protects them. Rousseau then elaborated a number of rights of citizens and limits on the sovereign's power. Modern theorists have developed a notion of natural rights that does not draw its source or inspiration from a divine ordering. Contemporary notions of human rights draw very deeply from this natural rights tradition. Thus human rights theories owe emergence from these Western political traditions. Not only are they a product of European natural rights, but the particular rights that 'are viewed as natural have been profoundly shaped by the liberalism that emerged in the 19th and 20th centuries. With Human Rights, the rhetorical framework of the natural rights, tradition has come to serve as a vehicle for the values of Western liberalism. An easy and powerful criticism is that human rights cannot be universal. In their basic concept they are a Western creation, based on the European tradition that individuals are separable from their society. But one may question whether these rights can apply to collectivist or communitarian societies that view the individual as an indivisible element of the whole society. Westerners, and many others, have come to place a high value on each individual human, but this is not a value judgment that is universal. There is substantive disagreement on the extent of, or even the need for, any protection of individuals against their society. In order for human rights to enjoy universal legitimacy they must have a basis that survives charge of ideological imperialism. Human rights must have a universally acceptable basis in order for them to be of any substantial measure of compliance. The general belief is that the concept of Human Rights is western and that the origin of the concept of Human Rights in the world history found its first expression in Magna Carta of 1215 and after this the Petition of Rights of 1628, the Bill of Rights, 1688 the American Bill of Rights of 1791 and the French Declaration of the Right of Man of 1789, became the milestones along the road in which the individual acquired protection against the capricious acts of kings. CONCEPT OF NATURAL RIGHTS Introduction: The concept of human rights is as old as the ancient doctrine of 'natural rights' founded on natural law. The expression 'human right' is of recent origin, emerging from (Post Second World War) international charters and conventions.

 

 

 

 

It would, therefore, be logical to start with the concept of natural rights, which eventually led to the formulation of 'human rights'. Once the concept of a higher law binding on human authorities was evolved, it came to be asserted that there were certain rights anterior to society, which too were superior to rights created by the human authorities, were of universal application to men of all ages and in all climes, and were supposed to have existed even before the birth of political society. These rights could not, therefore, be violated by the State. Doctrine of Natural Rights: The doctrine of natural rights is itself an offshoot the doctrine of natural law. Natural rights constitute the primary rights and obligations of men to one another as soon as they begin to live in a society, Le., in association with others. And since the rules of natural law are of universal application, natural rights also inhere in every human being, in all ages and in all climes. Natural law thinking has occupied a pervasive role in the field of ethics, politics and law from the time immemorial. At some periods natural law's appeal was essentially religious or supernatural but in modern times, it has formed an important reason in political and legal ideology. Basic Tenants of Natural Law: Basic tenats of natural law are as follows –

1. Law is related to justice, reason, human nature and ethics.

2. Rules of human conduct emanate from a supreme authority and are binding on all men everywhere.

3. Natural law is opposed to written law, the former is wise, the latter is arbitrary.

4. Nature is an order of things. It demands equality for all men.

5. Rules of law can be studied on the basis of a priori method, Le., to accept a thing without an enquiry or observation.

Growth of National Right Theory: The growth of the concept of the Rights of Man has been closely associated with the traditional national law theories. As a matter of fact, the notion of individual rights has never been projected as special feature in these theories. Law as such "implies both duties and rights and it is no doubt fair to say that the ancient and medieval theories of natural law were more concerned with the foundations of moral, legal and political duty than with the foundations of right. Right in the traditional doctrine of natural law, are rights against other people. These rights have corresponding duties in the sense that some other person is under a duty towards the holder of the right. For example, I have natural right to life. I hold this right against any other person as such in the sense that no one an deprive me of my life. Hence others are under corresponding

 

 

duty not to kill me. Similarly my natural right to liberty imposes duty upon others to leave me alone. Consequently, the rights and duties are co-related with each other. D.O. Rephael has rightly observed that- "The rights are rights against other people, and the duties are duties to other people. Thus a system of natural law, a system of duties which all men have to others, is at the same time a system of rights which all men have against others." The political implication of the theory of natural rights is that these rights, being inherent in man, existed prior to the birth of the State itself and can not therefore, be violated19 by the State. Paradoxically, however, the growth of the State itself necessarily put limitations on the natural rights of every individual in the interests of their collective existence. In a 'state of nature', the earliest state of society envisaged by political thinkers such as Hobbes or Rousseau, right was co-related with might, in the sense that every man had a right to do everything within his power. The growth of political society narrowed down the ambit of such rights in so far as social existence postulates that the rights of each individual should be limited by the collective interests of the society in which he lives. Just as natural law stands above the law of the land, natural rights are thought to be of a higher sanctity than legal rights which are actually prescribed by the legal sovereign for the time being, because natural rights exist independent of the law of the land and are not prescribed by any human authority. Natural Rights Inalienable: According to philosophers, there are certain basic and inalienable rights which are inherent in free and civilised human beings. A political society is necessary not to create them but to secure them. For instance, a right to habeas corpus in England was not created by the Habeas Corpus Act, but existed even prior to the enactment of those statutes. Civilised men derive such rights from a higher law, which was called 'natural law' at the dawn of civilisation, and which later came to be embodied in the form of a written instrument constituting the 'fundamental law of the land'. Under an unwritten constitution, as in England, these natural or basic rights came to be variously called as civil rights or civil liberties and freedoms or individual liberty. When guaranteed and entrenched by a written Constitution, these rights are called 'Fundamental Rights' because they are guaranteed by the Fundamental law. From Natural Rights to Fundamental Rights: The evolution of natural rights into Fundamental Rights enforceable in a court of law against the Sovereign himself is a long one. Though the Constitution of England has never been codified in the form of one organic instrument, so far as individual rights are concerned, they have been asserted, from time to time in form of declarations of the inviolable rights and liberties of the subject against the most despotic monarchical authority. In the words of Blackstone "these rights were founded on nature and reason, so they are coeval with form of government."

 

 

Manga Carta 1215: The doctrine of natural rights thus passed into the realm of practical reality when an absolute monarch himself (King John) was made to acknowledge that there were certain rights of the subjects which could not be violated even by a Sovereign in whom all power was legally vested. Petition of Right (1628): The movement continued through the repeated confirmations of the Magna Carta and the Petition of Right 1628 and culminated in the Bill of Rights 1689. Advocates of Social Contract: The doctrine of natural rights received further impetus at the hands of the great protagonists of the theory of Social Contract in the 17th and 18th centuries, particularly Locke and Rousseau, who sought to trace the genesis of political society and government in an agreement into which individuals entered to form a collective society to ensure their general interests and objects, but at the same time without interfering with their 'natural rights' which already belonged to them as human beings. John Lock (1690): Of this group of political thinkers, John Locke's theory was that, in the original state of nature, man was governed by the law of nature, but for the sake of better safety he joined in a political society by means of a 'social compact' for the mutual preservation of life, liberty and property. Some of these natural rights, for instance, were 'equality' "men being by nature all free, equal and independent", liberty and property. Rousseau (1762): Though full of contradictions in his philosophy of Social Contract, it was Rousseau who gave a kinetic impetus to the doctrine by emphasisting that the sole justification of the Stat~, which derives its authority from the people, was to guarantee the natural rights of man, of freedom and equality. These were 'natural rights' in as much as they inhered in man in the 'state of nature'. "Man is born free and everywhere he is in chains" Blackstone (1765): It is striking that this concept of natural rights as binding on any political authority crept into the thoughts of a legalist like Blackstone who, writing in 1765 made a distinction between absolute and relative rights of persons. By absolute rights of individuals, Blackstone meant- "Those which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. It is the duty of the political society to protect these absolute rights and, therefore, the state or any authority therein can not interfere with or encroach upon these natural rights except in so far as that is essential for the free maintenance or proper enjoyment of such rights as members of a collective society. Lock's theory of Social Contract was materially fruitful in the compact. And the significance of this compact lies in the fact that when the colonial revolt started in 1763, the colonies pointed to

 

 

this compact as the contract between the colonists and the king by which he was deemed to assure protection of their natural rights. Virginia Bill of Rights (1776): Virginia Bill of Rights was the first declaration of rights in a written constitution. The impress of the doctrine of 'natural rights' is to be found in the Preamble of this declaration. American Declaration of Independence (1776): The declaration of American Independence, drafted by Jefferson in 1776 said- "We hold these truths to be self-evident, that all men are created equal that they are endowed by their creator with certain inalienable rights, that among there are life, liberty and the pursuit of happiness". French Declaration of the Rights of Man (1791): Inspired by the American Declaration of Independence, the French National Assembly in 1789 formulated the Declaration of the Rights of Man. Natural Rights are Liberty, Property, Security and Resistance of Oppression. Bill of Rights in the American Constitution (1789): The Constitution of 1789 contained no guarantee of those 'inalienable rights' which were envisaged by the Declaration of Independence, such as the freedom of speech, assembly and religion. The constitution contained certain specific limitation on legislative power, such as the prohibition of bill of attainder and ex post facto law (Article 1, S. 9 (1) Adoption of the First Ten Amendments (1791) as the Bill of Rights: First Ten Amendments of the constitution which took place simultaneously in 1791, that is two years after the constitution had been brought into force. After the adoption of the Bill of Rights in the Constitution, the doctrine of natural law and natural rights has wielded a potent force in the United States in safeguarding individual rights and in expanding the constitution in that behalf. In a case of United States v. Cruikshank. It was said that the right of the people to assemble peaceably existed long before the adoption of the constitution of the United States, and was derived "from those laws whose authority is acknowledged by civilized men throughout the world." Similarly, it has been said, often and often, that the 'Due Process' clause in the 14th Amendment embodies the 'fundamental conceptions of justice'. Of course, no such bill has been passed in the U.K. up to the end of 1987. India: The freedom fighters in India, have learnt from their experience (American Colonists) under an imperialistic regime that even a representative assembly of men might be arbitrary and hostile to the cherished rights of men. They could not, therefore, 'implicitly believe the representatives of the people', for "uncontrolled and unrestricted power might lead to an authoritarian state". The Indian constitution, therefore- "preserves the natural rights against State encroachment and constitutes the higher judiciary of the State as the sentinel of the said rights." The urge for incorporating a guarantee of Fundamental Rights in the Indian Constitution was later accentuated by the need for establishing 'a sense of security' amongst the different minority groups, religious, linguistic and social.

 

 

This object was developed ever since in different Congress proceedings and led to the report of the committee on Fundamental Rights of the constituent assembly and the framing of part III of the draft constitution in the light thereof. It guaranteed to the individual, against the State, the right to acquire and hold any property without any limit as to kind or quantity. Human Rights and Fundamental Rights: Natural rights which are applicable to Fundament," Rights guaranteed by a Constitution may be formulated as follows -

1. Natural rights are those minimal rights of an individual which must be guaranteed by every society which claims to be civilized.

2. Natural rights have a sanctity superior to other rights conferred by positive law.

3. Fundamental Rights, like national rights are intended to be limitations on all governmental power and all state action, including legislative.

The effect of guaranteeing human rights in a written Constitution is to ensure that any State action, including legislation, which violates, or is inconsistent with, a fundamental right shall be struck down by the courts because the constitution is the fundamental law of the land. So natural law thinking has occupied a pervasive role in the field of ethics, politics and law from the time immemorial as assertion of faith in a standard of values. IMPORTANT QUESTIONS

Q.1. Narrate the origin and development of the concept of human rights.

Q.2. What is the meaning of Human Rights?

Q.3. Explain the nature of Human Rights.

Q.4. Explain the concept of Natural Rights.

 

 

UNIT - II

HUMAN RIGHTS UNDER UNITED NATIONS CHARTER At the San Francisco conference it was expressed by several delegates that the United Nations should establish an International Bill of Rights. Although that could not be done, it was well realised by the members that it should be the obligation of the international community to cooperate in eradicating the scourge of war, and they were therefore determined that the promotion and respect for human rights which at present are so important and so conspicuous be an integrated part of the U.N. Charter. Provisions of the Charter Concerning Human Rights: The charter contains a number of provisions for the promotion of human rights and fundamental freedoms in the preamble and in Articles 1, 13(1) (b), 55, 56, 62(2), 68 and 76(c) which are as follows- In the Preamble to the Charter it has been expressly and specifically declared that - We the peoples of the United Nations 'determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small .....' The purpose of the United Nations as Given in Article 1 of the Charter Are:

1. To maintain international peace and security and to that end to take effective executive measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace.

3. To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging without distinction as to race, sex, language or religion, respect for human rights and for fundamental freedoms for all; and -

4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

5. Article 55 provided that the United Nations shall promote –

 

 

a) higher standards of living, full employment and conditions of economic and social progress and development;

b) solutions of international economic, social, health and related problems and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language; or and the subjects in paragraphs- (a) and (b) are not rights at all but only policies that should be promoted.

6. Article 56 provided that the members of the United Nations pledged themselves to, take

joint and separate action in co-operation with the organisation for the achievement of the purposes set forth in Article 55.

7. Article 62 of the Charter authorized the Economic and social council to 'make' recommendations for the purpose of promoting respect for, and observance of human rights and fundam"ental freedoms for all.

8. Under Article 64, the Economic and Social Council may take appropriate steps to obtain regular reports from the specialised agencies.

9. Article 62 of the Charter authorized the Economic and Social Council to make recommendations for the purpose of promoting respect for and observance of human rights and fundamental freedoms for all.

10. Article 68 directed the council to set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions. The commission of Human Rights and the commission on the status of women are the subsidiary bodies of the economic and social council.

11. Para (c) of Article 76 stipulated that one of the basic objectives of the trusteeship system is to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion and to encourage recognition of the interdependence of the peoples of the world.

In addition to the above provisions, the charter has referred repeatedly to the concept of Fundamental Human Rights, 'the dignity and worth of the human person,' 'equal rights', 'justice', 'social progress' and fundamental freedoms - The Charter devoted three chapters to the self determination of peoples. It is to be noted that the Charter is a global constitution without a bill of rights. It neither defined the human rights nor they were enumerated therein. There is no provision in the Charter laying down express verb is that there is a legal obligation resting upon nations to observe human rights and fundamental freedoms. The guarantee for the protection of human rights and fundamental freedoms was also not provided in the Charter. Although it was proposed by the Latin American States during the drafting of the Charter at San Francisco conference that it should contain an International 'Bill of Rights', a specific list of rights could not be prepared due to lack of sufficient time, and therefore promotion as well as protection of human rights was explicitly

 

 

rejected. Provisions relating to human rights in the Charter are therefore general and vague. However, since the adoption of the charter, international human rights law has been developing in an unprecedented way, and presently, it has become a substantive part of international law as a whole. 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 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.

2. Codification of the Law of Human Rights ..

3. Monitoring of Human Rights.

4. Procedure of Individual's Complaints.

5. Compilation of Information on the Violations of Human Rights.

6. Examination of Human Rights Situations.

7. Coordination of Human Rights Activities.

8. By Providing Advisory Services. HUMAN RIGHTS: INTERNATIONAL ORGANIZATION OF INTERNATIONAL COOPERATION Introduction: For the enforcement of Human Rights and Fundamental Freedoms, a number of special bodies have been established in accordance with international conventions dealing with particular aspects of human rights. These bodies devote their full time and attention to monitor the enforcement of the provisions of those conventions. These bodies are -

1. The Human rights committee.

2. The group of three.

3. The committee on elimination of Racia discrimination.

4. The Committee on the elimination of discrimination against women.

5. The committee against torture, and

6. The committee on the rights of the child.

Their functions are to monitor and supervise the implementations of concerned multilateral treaties, which are meant to ensure the enjoyment of human rights and fundamental freedoms by everyone without distinction. In general, these bodies supervise the enforcement of the relevant international human rights conventions by reviewing the information received from all reliable sources including reports from states, parties, inter governmental and non-governmental

 

 

organisations and communications alleging violations of human rights received from or on behalf of the victims of such violations. United Nations and its Specialized Agencies: All the six principal organs of the United Nations via the General Assembly, the Economic and Social. Council, Security Council, the Trusteeship Council, the International Court of Justice and Secretariat make effective contribution to promote and protect human rights and fundamental freedoms throughout the world. Four specialized agencies, namely -

1. The International Labour Organisation.

2. The United Nations Educational Scientific and Cultural organisation.

3. The World Health Organisation, and

4. The Food and Agriculture Organisation of the United Nations are successfully carrying out their activities in the human rights field.

It is an overall responsibility of the Commission on Human Rights to consider the question of violations of human rights, initiate actions on the situation of human rights in different parts of the world by appointing special reporters and establishing working groups1. United Nations Commission on Human Rights: The major United Nations body working to promote and protect human rights is the United Nations Commission on Human Rights. The Economic and Social Council (ECOSOC), under 68 of the U.N. Charter was empowered to set up commissions for the promotion of human rights and such other commissions as may be required for the performance of its functions. The establishment of a commission on human rights was recommended in 1945 by the Prepatory Commission of the United Nations in order to deal with those human rights issues which could not be resolved during the original drafting of the U.N. Charter, which was approved by the General Assembly on February 12, 1946. The Commission was composed of 18 members who were elected by ECOSOC. Each state member selected its own representatives. In 1991 the membership was increased to 53. Functions of the Human Rights Committee : The Human Rights Committee performs following important functions-

1. To study reports on the messages states parties have adopted to give effect to the rights recognized in the covenant and on the progress made in the enjoyment of those rights.

2. To formulate and transmit to the states parties such general comments as it may consider appropriate.

3. To entertain and examine inter-state communication.

4. To considers written communication addressed to it under the optional protocol to the international covenant on civil and political rights.

 

 

Centre for Human Rights: The Centre was located at Geneva to coordinate human rights activities. It provided staff for the commission, the sub-commission, the human rights committee, the committee on the elimination of racial discrimination and other policy making or investigative bodies. The Vienna Declaration and programme of action adopted by the world conference on human rights in 1993 stressed the importance of strengthening the Centre for human rights. U.N. High Commissioner for Human Rights: In order to promote and protect the effective enjoyment by all of all civil, political, economic, social and cultural rights, the General Assembly on December 20, 1993 created the post of the United Nation High Commissioner for Human Rights. High Commissioner is appointed by the Secretary-General. High commissioner shall serve a four-year term at the rank of the under-Secretary-General. The office of the High Commissioner shall be located at Geneva with a branch office in New York. Jose Ayala Lasso of Ecuador was nominated by the Secretary-General as the first High Commissioner when his name was confirmed by the General Assembly on February 14, 1994. He assumed office on April 5, 1994. Sub-Commission on Prevention of Discrimination and Protection of Minorities (Promotion and Protection of Human Rights): The sub-commission was established under the authority of ECOSOC Resolution 9(11) of June 21, 1946 to make studies and recommendations to the commission concerning the prevention of discrimination against racial, religious and linguistic minorities. The sub-commission was composed of 26 members elected by the commission subject to the consent of their governments, which meets for four weeks each year; it has four standing working groups. 1. The working group on communication which examines complaints of human rights

violations.

2. The working group on contemporary form of slavery

3. The working group on indigenous population.

4. The working group on minorities.

Commission on the Status of women Advancement of rights of women has been the concern of world community since the end of second world war. The Preamble to the Charter of the United Nations mentions the determination of the peoples of the United Nations, "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women" and "to" employ international machinery for the promotion of the economic and social advancement of the people". Similarly, provisions are also incorporated in the Charter of the United Nations and other human rights instruments which provide for the protection and advancement of the rights of women.

 

 

Provisions of the Charter of the United Nation - Concerning Advancement of the Rights of Women: Article 1 of the Charter lays down that one of purposes of the United Nations is "to achieve international co-operation in solving international problems of an economic, social and cultural, or humanitarian character, and in promoting and encouraging respects for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion". The provision for equality of women with men has been enshrined in Article 8 of the Charter. Article 13 of the Charter lays emphasis upon "promoting international co-operation in the economic, social, cultural, educational and health fields, and assisting in the realisation of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Article 55 of the Charter also lays emphasis upon the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Thus the principle of equality of men and women in the matter of promotion and observance of human rights and fundamental freedoms has been fUlly established under the Charter of the United Nations. Provisions of International Human Rights Instruments: The principle of equal rights of men and women has been incorporated in the Universal Declaration of Human Rights Article 1 and 2. It clearly proVides that all the rights and fundamental freedoms incorporated in the Universal Declaration of Human Rights are available equally to both men and women without any distinction. In addition, the principle of equal rights of men and women has found mention in the following international human rights instruments -

1. The Convention on the Political Rights of Women;

2. The Convention on the Nationality of Married Women;

3. The Convention and Recommendation on Consent to ,Marriage, Minimum age for Marriage and Registration of Marriage;

4. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, the Institution and Practices Similar to Slavery;

5. The Convention for the Suppression of the Traffic in Persons and of the Exploitation or the Prostitution of others;

6. The Human Rights instruments adopted by the International Labour Conference:

a. The Underground Work (Women) Convention, 1935;

b. The Right to Work (Women) Convention (Revised), 1948;

c. The Equal Remuneration Convention, 1951;

d. The Discrimination (Employment and Occupation) Convention, 1958, and

 

 

e. The Workers with Family Responsibilities Convention, 1981.

7. The Convention against Discrimination in Education, adopted by the General Conference of the United Nations Educational Scientific and Cultural Organisation in 1960.

The United Nations Competent Organs: For the promotion of status of women in various fields and to eliminate discrimination against women, following two organs have been established under the United Nations system –

1) The Commission on the status of women.

2) The Committee on the elimination of discrimination against women. The Commission on the Status of Women: The Commission on the status of women, a functional commission of the economic and social council, was established in 1946. The membership of the commission was originally fifteen and expanded to 45 in 1991. The commission meets once in two years in Viena to examine women's progress towards equality throughout the world. In the initial period, this commission was particularly concerned-

1. with the improvement of the status of women in law;

2. with advancement of women's enjoyment of their rights to education, employment and health care.

It made valuable suggestions to the Commission on Human Rights and the Economic and Social Council at the time when the Universal Declaration of Human Rights and the two International Covenants on Human Rights were under the process of being drafted. In addition, this Commission has performed following important functions - 1. The Commission, has initiated studies on several questions relating to the life of Women,

such as equal access to education at all levels, equal economic rights and opportunities for Women; equal pay for equal work and various aspects of family law and property rights. It has made recommendations on these questions which have resulted in the adoption of many resolutions with the aim to promote the Status of Women and to establish the principle of equality of rights for men and Women. In addition, the Commission has prepared following Conventions and Declarations -

a) The Convention on the Political Rights of Women, which was adopted and opened for

signature and ratification by the General Assembly, on 20 December, 1952.

b) The Convention on the Nationality of Married Women adopted by the General Assembly in 1957.

c) The Convention on Consent to Marriage, Minimum Age for Assembly in 1962. This Convention was followed by Recommendation on the same subject adopted by the General Assembly in 1965.

 

 

d) The Declaration on the Elimination of Discrimination against Women made by the General Assembly in 1967. It was following by the Convention on the Elimination of All Forms of Discrimination against Women, adopted and opened for signature, ratification and accession by the General Assembly in 1979.

e) The Commission has served as the preparatory body for the International Women's Year (1975) and the United Nations Decade for Women (1976-1985).

2. The Commission has served as the preparatory body for the World Conferences on Women,

held in Mexico City (1975). Copenhagen (1980), Nairobi (1985) and Beijing (1995).

3. It has been now assigned with "the functions of promoting the objectives of equality, development and peace, monitoring the implementation of measures for the advancement of Women, and reviewing and appraising progress made at the national, sub regional, regional, sectoral and global level."

The Commission recognized that women would not make progress in any field unless they shared decision making power with men. The commission was also helpful in adopting the convention on the elimination of all forms of discrimination against women by the General Assembly in 1979. In addition to above, the commission has focused on many topics relating to women such as role of women in development, family planning, education and economic rights of women. Regional Systems for the Enforcement of Human Rights The intergovernmental arrangements for the promotion and protection of human rights have been established in East European, American and African regions and efforts are being made to establish such an arrangement in Asia also. These are as follows –

1. The African Charter on Human and Peoples Rights.

2. The European Convention on Human Rights.

3. American Convention on Human Rights. The African Charter on Human Rights: The African human rights system is of comparatively recent origin. The Charter came into force on 21 October, 1986. The provisions of the Charter are enforceable; within the framework of the organisation of African Unity which is a regional inter-governmental organisation established in 1963. Contents and Structure of the Charter : The Charter contains provisions dealing with rights and duties, on one hand and the organs for the protection and promotion of those rights and duties on the other. It is a unique feature of the African charter that it places same emphasis on the enforcement of the rights as well as the duties. The various rights which are incorporated in the African Charter are – 1. Equality before law and equal Protection of law.

 

 

2. Right to inviolability to person including the right to the respect of the dignity and to the

recognition of legal status.

3. The right of liberty and the security of person.

4. The right to be heard by competent national organ.

5. The right to freedom of conscience, profession and free practice of religion.

6. The right to receive information.

7. The right to assemble freely to form association.

8. The right to freedom of movement and residence including right to leave any country

including his own and to return to his country.

9. The right to participate freely in the government of one's country and the right of equal

access to the public service.

10. The right to property and the right to free disposal of wealth and natural resources.

11. The right to work under equitable and satisfactory conditions.

12. The right to enjoy the best attainable state of physical and mental health.

13. The right to education.

14. The right to Protection of family as a natural unit and basis of society.

15. The right to liberation from foreign domination.

16. The right to Economic, Social and Cultural development.

17. The right to national and International peace and security and

18. The right to a general satisfactory environment favourable to their development.

The individuals have following duties -

1. The duties towards his family, society and State.

2. The duties to respect and consider his fellow beings.

3. The duties to preserve the harmonious development of family, to serve his national community, not to compromise the security of the State, to preserve and strengthen national solidarity; to preserve and strengthen national independence, to pay taxes, to preserve and strengthen positive African Cultural values, and to contribute towards promotion and achievements of African unity.

Promotion and Protection of Human Rights: Following two bodies are established for ensuring the promotion and protection of human and people's rights -

 

 

1. The African commission on Human and People's Rights: The Charter established a Commission to promote human and people's rights and ensure their protection in Africa (Article 30). The Commission shall consist of eleven members chosen from among of African personalities of the highest reputation known for their high morality, integrity, impartiality and competence in matters of human and people's rights, particularly, consideration being given to persons having legal experience (Article 31). The members of the Commission shall serve in their personal capacity. There shall be a Secretary of the Commission who shall be appointed by the Secretary-General of the Organisation of African Unity (Article 41). He shall provide the staff and services necessary for the effective discharge of the duties of the Commission.

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

(i) to collect documents, undertake studies and researches on African problems in the field of human and people's rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and people's rights, and should the case arise, give its views or make recommendations to governments;

(ii) to formulate and lay down principles and rules aimed at solving legal problems relating to human and people's rights and fundamental freedoms upon which African Governments may base their legislations;

(iii) co-operate with other African and international institutions concerned with the

promotion and protection of human and people's rights. b) The Commission shall ensure the protection of human and people's rights. c) The Commission shall interpret all the provisions of the Charter at the request of a State Party, an institution of the OAU or an African Organization recognised by the OAU. d) The Commission shall perform any other task which may be entrusted to it by the Assembly of Heads of States and Governments. 2. The Assemy of Heads of States and Government of OAU Thus in the words of Isaac Nguema, the first Chairman of the African Commission on Human and People's Rights "the African Charter on Human and People's Right as it now appears certainly represents a point of achievement. But it is above all a point of departure because of the way in which those responsible for the implementation will carry out their functions. Their know-how will enable ideas concerning human rights policy in Africa to be more clearly defined. Non-Governmental Organization

 

 

Non-Governmental Organisations (NGOs) are private organisations consisting of private groups of religious, scientific, cultural, philanthropic, technical or economic orientation. NGOs and United Nations: NGOs pursue a number of activities to remove suffering, promote the interests of the poor, protect the environment, provide basic social services, undertake community development and promote human rights. NGOs have been recognised by the U.N. Charter under Article 71. A standing committee of the Economic and Social Council was established by the Council Resolution 3(ii) on June 21, 1946. The Committee reports directly to the ECOSOC. The committee consists of nineteen members who are elected on the basis of equitable geographical representation3. NGOs' affiliation to an international organisation already in status may be admitted provided that they can demonstrate that their programme of work is of direct relevance to the aims and purposes of the United Nations. In the case of national organisations, consultation with the member state concerned is required. A number of NGOs have come into existence for the promotion and protection of human rights. Some of the functions which they may perform relating to human rights are as follows-

1. Mobilization of public opinion.

2. Collection of information.

3. By providing direct service.

4. Dialogue with Governments and International Bodies.

5. Legal Assistance.

6. Filing of Writ Petitions.

7. Communication to the Commission on Human Rights.

8. Proceeding of information.

Leading NGOs: Amnesty International and Human Rights Watch having international activities and membership are the leading NGOs in the field of human rights. UNIVERSAL DECLARATION OF HUMAN RIGHTS Introduction: An outcome of the Second World War, one of the most striking developments in human society in recent years, has been its concern for the protection of fundamental rights and freedoms of the individual. Minimum human rights is, thus, one of the focal points of the present day international society. The World War" proved to many the close relationship between the outrageous behaviour by a government towards its own citizens and aggression against other nations, between respect for human rights and the maintenance of peace5.Thus, as a result of the experiences of the World War II, the need for the protection of fundamental human rights has been universally felt. A direct outcome of this was that human rights received attention firstly in the U.N. Charter (which refers to human rights problems in its Preamble and six different articles) and subsequently in the Universal Declaration of Human Rights (1948) which was adopted in pursuance of the provisions of the U.N. Charter.

 

 

The Universal Declaration of Human Rights: Universal Declaration of Human Rights, was adopted by the General Assembly on December 10, 1948, which formed the basis for the preparation of other documents on human rights. 10th December is celebrated as Human Rights day every year. The Declaration claims to be a common understanding of the rights and freedoms to the respect for and observance of which Member States have pledged themselves and was proclaimed as "a common standard of achievement for all peoples and for all nations".6 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 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. The declaration consisted of 30 Articles besides a preamble. Preamble of the Universal Declaration: Preamble proclaimed it as a common standard of achievement for all peoples and for all nations, to the end that every individual and every organ of society keeping this 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. Thus the General Assembly recommends to every individual and every organ of the society to do something with respect to the human rights laid down in the declaration. Enumeration of Rights in the Declaration: The universal declaration enumerated the basic postulates and principles of human rights in a most comprehensive manner. It dealt not only with civil and political rights, but with social and economic rights as well. Civil and Political Rights: Article 2 to 21 deal with those civil and political rights which have been generally recognised throughout the world. These are as follows-

1. Right to life, liberty and security of persons (Article 3).

2. Freedom from slavery or servitude (Article 4).

3. Prohibition against torture, inhuman or degrading treatment or punishment (Article 5).

4. Recognition as a person before the law (Article 6).

5. Equality before the law and equal protection of the law without any discrimination

(Article 7).

6. Effective remedy before the national tribunals (Article 8).

7. Freedom from arbitrary arrest, detention or exile (Article 9).

8. Right to a fair and public hearing by an independent and impartial tribunal (Article 10).

9. Presumption of innocence until proved guilty in a public trial with all guarantees

necessary for defence in criminal cases (Article 11 para 1).

 

 

10. Freedom from ex-post facto laws (Article 11 p. 2).

11. Right to privacy, family, home and correspondence (Article 12).

12. Right to freedom of movement and residence within the borders of a State. (Article 13,

para 1).

13. Right to leave any country, including his own and to return to his country (Article 13,

para 2).

14. Right to seek and to enjoy in other countries asylum from persecution (Article 14, para

1).

15. Right to a nationality (Article 15).

16. Right to marry and to found a family (Article 16).

17. Right to own property (Art 17).

18. Right to freedom of thought, conscience and religion (Article 18).

19. Right to freedom of opinion and expression (Article 19).

20. Right to freedom of peaceful assembly and association (Article 20).

21. Right to participate in the government of his country (Article 21).

Economic and Social Rights: Articles 22 to 27 of the declaration deal with economic and social rights which are as follows –

1. Right to social security (Article 22).

2. Right of work and free choice of employment (Article 23).

3. Right to rest and leisure (Article 24).

4. Right to a standard of living adequate for the health of himself and of his family (Article

25).

5. Right to education (Article 26).

6. Right to participate in cultural life (Article 27).

7. Right to good social and international order (Article 28).

The declaration laid down under Article 29 certain limitations to these rights and freedoms, by providing that everyone has duties to the community in which alone the final and full development of his personality is possible. Para 2 of Article 29 provided that rights shall be provided to the individuals subject to just requirements of morality, public order and the general welfare in a democratic society. The above may mean that rights provided in the declaration are not absolute.

 

 

Legal Effect of the Declaration: The human rights in the form of norms mentioned in the declaration are fundamental in a moral sense and are universal, indivisible, interdependent and interrelated. The precise effect of the declaration was, therefore to urge states to establish a system and procedures for the future protection of human rights. The declaration was not intended to be legally binding and therefore it did not impose any legal obligations on the states to give effect to its provisions. The declaration is deficient in three aspects -

1. It is not binding on states as law but rather a U.N. recommendation to states,

2. Some of its provisions are as general as those of Article 55 of the U.N. Charter.

3. The declaration offered no means of implementation other than State goodwill.

Influence of the Universal Declaration: The declaration has exercised a profound influence upon the minds of men. It is message of hope, equality, liberation and empowerment. It has inspired a number of declarations and international conventions concluded under the auspices of the United Nations and of the specialized agencies. Its provisions have also influenced various national constitutions, national legislations, regulations and policies that protect fundamental human rights. India was a signatory to the declaration. The Indian Constitution was greatly influenced by the Declaration. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1966) Introduction: The Commission on Human Rights in 1947, while considering the preliminary draft of an International Bill of Human Rights prepared by the drafting committee, decided to draw up a separate covenant which would be a covenant on such specific rights as would lend themselves to binding legal obligations. The document was to be known as international covenant on human rights. In 1950, the General assembly recommended the inclusion of the economic, social and cultural rights in the covenant10. Later in 1952, the General Assembly, on the recommendation of the economic and social council, decided that the two covenants shall be drawn up and directed to the Commission on Human Rights to prepare two drafts, one dealing with civil and political rights, the other with economic, social and cultural rights. On the recommendation of the Third Committee, the General Assembly on December 16, 1966 adopted two covenants-

1. International Covenant on Civil and Political Rights.

2. International Covenant on Economic, Social and Cultural Rights.

It also adopted on an optional protocol the International Covenant on civil and Political Rights13. The General Assembly on December 15, 1989 adopted the second optional protocol to the International covenant on civil and political rights aiming at the abolition of the Death Penalty14. The second optional protocol came into force on July 11, 1991. With the adoption of

 

 

the two covenants and two optional protocols, the United Nations completed the task of formUlating the international standard of human rights of the individuals. They together along with the Universal Declaration of Human Rights' are regarded to have constituted Inte~national Bill of Human Rights. Thus, the United Nations fulfilled one of the main objects which it had cherished in 1947. International Covenant of Civil and Political Rights: The International Covenant on Civil and Political Rights, 1966 comprises of Articles divided into VI parts. While in parts I, II, and III various rights and freedoms are enumerated, the other three parts are devoted to implementation procedures for effective realisation of these rights along with the final clauses. Article 1 which refers to the rights of peoples to self-determination states that all people have the right freely to determine their political status and freely pursue their economic, social and cultural development and may, for their own ends, freely dispose of their natural wealth and resource without prejudice to any obligations arising out of international economic co-operation, based upon the principles of mutual benefit and international law. The Article further states that in no case may a people be deprived of its own means of subsistence, and that the state parties shall promote the realisation of the right of self determination and shall respect that right. The covenant of economic, social and cultural rights also stipulated the above provisions into to under Article I. Part" stipulated rights and obligations of the State parties to the covenant. It included the obligations of the states to take necessary steps to incorporate the provisions of the covenant in the domestic laws and to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the covenant. The State parties ensure the equal rights of men and women to the enjoyment of all civil and political rights. Substantive Rights: Part III deals with the specific rights of the individuals and the obligations of the States parties –

1. The rights of life (Article 6).

2. Freedom from inhuman or degrading treatment (Article 7).

3. Freedom from slavery, servitude and forced labour (Article 8).

4. Right to liberty and security (Article 9).

5. Right to detenu to be treated with humanity (Article-10).

6. Freedom from imprisonment for inability to fulfil a contractual obligation (Article 11).

7. Freedom of movement and to choose his residence (Article 12).

8. Freedom of aliens from arbitrary expulsion (Article 13).

9. Right to a fair trial (Article 14).

10. Non-retroactive application of criminal law (Article-15).

11. Right to recognition as a person before the law (Article 16).

 

 

12. Right to privacy, family, home or correspondence (Article 17).

13. Freedom of thought, conscience and religion (Article 18)

14. Freedom of opinion and expression (Article 19)

15. Prohibition of propaganda of war (Article 20).

16. Right of peaceful assembly (Article 21).

17. Freedom of association (Article 22).

18. Right to marry and found a family (Article 23)

19. Rights of the child (Article 24).

20. Right to take part in the conduct of public affairs, to vote and to be elected (Article 25).

21. Equality before the law (Article 26).

22. Rights of minorities (Article 27).

The above rights set forth in the covenant are not absolute and are subject to certain limitations. While the formulation of the limitations differed in so far as details are concerned from Article to Article, it is to be noted that the covenant is a legally binding treaty and the state parties are legally bound to give effect to its provisions. Civil and Political Rights in Emergency: The covenant made provisions under Article 4 relating to public emergency which threatens the life of the nation. Para one of the above Article lays down that the state parties to the covenant may make measures derogating from their obligations under the covenant to the extent strictly required by the exigencies of the situations. Para 2 of Article 4 provided that there are certain rights in respect of which no derogation can be made. For instance there can not be any derogation in rights given in the Article 6, 7, 8 (Para 1 and 2) 11, 15, 16, 18. The above rights are non-suspend able rights as they have been identified as 'core of essential human rights'. Implementation Procedure: Part IV of the covenant laid down the procedure for the implementation. A provision was made for the establishment of the Human Rights Committee which was the monitoring body under the covenant. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS-1966: The International covenant on Economic, Social and Cultural Rights is consisted of 31 Articles which are divided in five parts. Part I deals which the rights of peoples to self-determination as provided in Article 1 of the covenant on civil and political rights. Other rights of the individuals are enumerated in part III of the covenant which included the following rights.

1. Right to work (Article 6).

2. Right to just and favourable conditions of work (Article 7).

3. Right to form and join trade union (Article 8).

 

 

4. R1ght to social security (Article 9).

5. Right relating to motherhood and childhood, marriage and the family (Article 10).

6. Right to adequate food, clothing, housing and standard of living and freedom from

hunger (Article 11).

7. Right to physical and mental health (Article 12).

8. Right to education including a plan for implementing compulsory primary education (Article 13).

9. Right relating to science and culture. Part II of the covenant laid down the undertaking of the states parties to the covenant. Article II provided that each State party 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 realization of the rights recognised in the covenant -by all appropriate means including particularly the adoption of legislative measures. It appears from the above provision that the states are not under an obligation to abide by the provisions of the covenant immediately, i.e., from the date of ratification of the covenant. Thus, the covenant has set the standards which the states parties are required to achieve in future. Its provisions shall be implemented progressively by the states depending on the resources available to them. Thus, the covenant is essentially a 'promotional convention' stipulating objectives more than standards and requiring implementation overtime rather than all at once. The importance of the covenants lies in the fact that they recognised the inherent dignity and of the equal and inalienable rights of all members of the human family which is the foundation of freedom, justice and peace in the world. It is an obligation of the states to provide these rights to the individuals as they derive from the inherent dignity of the human person, and also because they are essential for the development of one's personality. EUROPEAN CONVENTION ON HUMAN RIGHTS The idea of regional arrangements for the promotion and protection of human rights has been gaining recognition. Since the adoption of the Universal Declaration of Human Rights. The Viena Conference on Human Rights in 1993 states in the Declaration that "Regional arrangements playa fundamental role in promoting and protecting human rights. The Universal Declaration of Human Rights, 1948 would have any meaning if it is made implementable in law of member states." And for this purpose efforts had been begun in European countries. The statutes of the Council of Europe, established by the Congress of Europe consisting of members who were likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law, stressed that the maintenance and promotion of human rights were on the means to achieve the ultimate objective of European unity. The negotiation within the council led to the adoption of the European convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) on November 4, 1950. The convention was signed by the members of the council. It came into force on September 3, 1953. The convention in the year 2001 had 41 contracting states. It was signed at Rome and there are 22 parties to it.

 

 

Protocols to the European Convention: The European convention has eleven protocols which have either amended the convention or added the rights enshrined in the convention. They are as follows-

1. Protocol no. 1 was signed on March 20, 1952 which added four new articles providing for certain rights and freedoms such as right to peaceful enjoyment of one's possessions and right to education and right to free elections. The protocol came into force on May 18, 1954.

2. Protocol no. 2, signed on May 6, 1963 provided that the court of Human Rights may at the request the Committee of Ministers give advisory opinion on legal question concerning the interpretation of the convention and protocol. It came into force in 1970.

3. Protocol no. 3 signed on May 6, 1963, amended Articles 29, 30 and 34 of the convention and abolished the system of sub-commission. It came into force on September 22, 1970.

4. Protocol no. 4 signed on September, 16, 1963 secured the freedom from imprisonment for debts; from expulsion and the right to enter own country, plJhibition of collective expulsion of aliens and the choice of residence and liberty of movement. It came into force on May 2, 1969.

5. Protocol no. 5, signed on January 20, 1966 made certain procedural changes regarding election of the members of the commission and the Court.

6. Protocol no. 6 which came into force in March 1985 provided for the abolition of death penalty.

7. Protocol no. 7 which came into force on November 1, 1988 provided that there is a right of review of a conviction by a higher tribunal.

8. Protocol no. 8 which entered into force on January 1, 1990 laid down that the commission may set up Chamber or Committees.

9. Protocol no. 9 which came into force on October 1, 1994 enables individual applications to refer cases to the Court in certain circumstances.

10. Protocol no. 10 adopted on March 25, 1992 (not yet came into force) deleted the 'words of two thirds' from para 1 of Article 32 of the convention.

11. Protocol no. 11 was adopted on May 11, 1994. The protocol restructured the control machinery established by the convention in order to maintain and improve the efficiency of its protection of human rights. It came into force on November 1, 1998.

Thus the convention has been amended several times by abovementioned protocols adding the 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 66 Articles divided into five sections. Rights and Freedoms Recognized Under UCHR : The European convention provided rights and freedoms under Section 1 of the convention which are as follows-

1. Right to life (Article 2) and right to liberty and security of person (Article 5).

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

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

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

5. Right to a fair and public hearing (Article 6).

6. Non-retroactive application of criminal law (Article 7).

7. Right to respect for his private and family life, home and correspondence (Article 8).

8. Right to freedom of thought, conscience and religion (Article 9).

9. Right to freedom of expression (Article 10)

10. Right to freedom of peacefUl assembly and freedom of association with others (Article

11).

11. Right to marry and to found a family (Article 12).

12. Right to have effective remedy before a national tribunal against the violations of the

rights and freedoms. (Article 13).

13. Right to the peaceful enjoyment of his possessions (Article 1, Protocol 1).

14. Right to education (Article 2, Protocol 1).

15. Holding of free elections at reasonable intervals by secret ballot (Article 3, Protocol 1).

16. Abolition of death penalty (Article 1, Protocol 6).

17. Freedom from expulsion from a State (Article 3, Protocol 4).

18. Right to review of a conviction by a higher' court (Article 2, Protocol 7).

19. Freedom from collective expulsion (Article 4, Protocol 4).

A contracting party in order to provide the above rights is required to ensure that its national law does not violate the rights protected in the convention in view of the fact that a breach of the convention entails international responsibility. Implementation Machinery: The enforcement machinery for the observance of the engagements as protection of the rights earlier consisted of European commission of Human

 

 

Rights set up in 1954 and the European Court of Human Rights set up in 1958 and the Committee of ministers of the council of Europe. European Commission of Human Rights: Section III of the convention had provided the provisions for the European Commission on 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 may be the nationals of the same State. The members 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 were elected for a period of six years. However, they were entitled for re-election. The members of the commission sit on the commission in their individual capacity. Functions of the European Commission: The main function of the commission was to receive complaints from any high contracting party through the Secretary General of the Council of Europe as to the breaches of the provisions of the convention. The commission could receive petitions from any person, non-governmental organisation or group of individuals claiming to be the victims of a violation by one of the High Contracting Parties. If the commission found any complaint admissible, it started its functioning in two ways. The first was the investigation of the application of ascertaining the facts, and the second, was securing a friendly settlement of the matter on the basis of respect for human rights. The commission has been successful in securing a friendly settlement in a number of cases including Boeckmans v. Belgium Alam Khan v. U.K. and Knechtt v. U.K. If the solution is not reached, the commission drew a report on the facts and stated its opinion as to whether there is a breach of its obligation under the convention. In such cases the report was transmitted to the commission of ministers and the states concerned. Decisions of the Committee of Ministers : If the question was not referred to the European Court of Human Rights within a period of three months from the date of the transmission of the report to the committee of ministers, the committee of ministers took a decision by a majority of two-thirds of the members. If the committee of ministers decided that there has been a breach of the convention, it prescribed a period during which the contracting party concerned must take the measures required by the decision. If the satisfactory measures within a prescribed period were not taken, the committee of ministers decided what effect is to be given to its original decision and shall publish the report. But the commission has finally ceased to operate from October 31, 1999. European Court of Human Rights: The acceptance of the court's jurisdiction was optional for the High Contracting Parties. The court therefore came into force on September 3, 1958, when it was accepted by the required number of acceptance, i.e., by eight members. The jurisdiction of the court extended to all cases concerning the interpretation and application of the present convention. The new European Court of Human Rights came into operation on November 1, 1998. The old court ceased to function on October 31, 1998. The new court shall function on a permanent basis.

 

 

The court shall have jurisdiction to decide the cases brought either by the High Contracting Parties or by individuals. The court may at the request of the committee of ministers, give advisory opinions on legal questions concerning the interpretation of the convention and protocols thereto. Cases Decided by the European Court (Old):

1. Lawless case (Lawless v. Ireland)

2. Soering v. United Kingdom

3. Brogan v. United Kingdom

4. Lingens v. Austria

Thus the convention has been helpful in bringing the member states closer in economic cultural and political fields. IMPORTANT QUESTIONS

1. Discuss the Universal Declaration on Human Rights.

2. Write an essay on United Nations Organisation and Human Rights.

3. Discuss the importance and objects of International Covenant on Civil and Political

Rights 1966.

4. What steps have been taken for the promotion of the status of the women at the national

and international level?

 

 

UNIT – III

HUMAN R)GHTS UNDER INDIAN CONSTITUTION Introduction: The idea to have in India human rights was felt by the freedom fighters long before India got independence from the British colonial rule. The efforts to secure civil liberties and human rights in India were on even in the 18th century but the real process started with the adoption of the famous Karachi Resolution of 1931 by the Indian National Congress followed by the objective Resolution of December 13, 1946 which was adopted by the Constituent Assembly unanimously on January 22, 1947. Both these resolutions were almost like a charter on human rights consisting of social, economic and political justice, equality of status before law ~and of opportunity, freedom of thought belief, expression, faith, worship, vocation, association and action. And in the objective resolution all the guarantees were subject to law and public morality. The framers of the constitution considered and applied the principles of both these resolutions and are clearly seen in the preamble, part III - fundamental rights, part IV - the directive principles of state policy and several other provisions of the constitution, It may be mentioned that the framers of our constitution were influenced by the Bill of rights of American constitution, the French declaration of the rights of men and the Universal Declaration of Human Rights which was adoptee by the United Nations. But neither in any of the resolutions nor in the Indian Constitution the words 'human rights' have been used although its essence is undoubtedly present in them. Let us examine each of them in detail. Preamble to the Indian Constitution: "The Constitution of India is a supreme Lex. It is a document having special legal sanctity which sets out the framework to cherish the philosophy of human rights jurisprudence. The framers of the constitution have intended to make it a valuable instrument of the Indian people's salvation to secure all people's basic human rights in its true perspective. The preamble to the constitution at the very outset declares- "We the people of India, having solemnly resolved to constitute India into a sovereign, socialist, secular democratic, republic and to secure to all citizens, justice, social, economic and political liberty of thought, expression, belief, faith and worship, equality of status and of opportunity, and to promote among them all, fraternity assuring the dignity of the individual and the unity and integrity of the nation." The Preamble to the Constitution serves as the soul of the Indian democracy. It is indeed an embodiment of human rights values even though the words 'human right' have not been used. It speaks of a sovereign, secular, socialist, democratic, republic, social, political and economic justice, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity, fraternity, assuring the dignity of the individual and the unity and the integrity of the nation. The objective resolution forms the basis for the incorporation of various Human Rights values not only in various provisions of the Constitution but also in its Preamble. The objective of the constitution has been to establish an egalitarian society, free from exploitation of man by man, guaranteeing liberties not to a few but to all and bringing real freedom to the masses in- a positive sense. Thus the Preamble, by combining the ideals of social, political, and economic democracy seeks to establish what Mahatma Gandhi described as the 'India of my dreams."

 

 

1. It clearly establishes at the outset that irrespective of the difference in socio-economic status the people of India are one and they are the ultimate source of all authority.

2. The people of India have adopted in the Preamble the democratic ideal which assures to the citizens the dignity of the individual and other cherished human values or a means to the full evaluation and expression of his personality, and while delegating to the Legislature, the Executive' and the Judiciary their respective powers in the constitution, they have reserved to themselves certain fundamental rights.

3. The four basic principles or the four pillars of an egalitarian society- Justice, Liberty,

Equality and Fraternity are very categorically highlighted in the preamble. Though they may sound grandiose and rhetoric, yet they serve as the goals which the nation will aspire and strive for.

4. It also highlights the imperative need to establish a just society, where there would be no

discrimination of any citizen on the basis of caste, creed, colour or sex. Thus, the preamble concisely sets out quintessence of human rights which represents the aspirations of the people, who have established the constitution. The preamble to the constitution is of extreme importance and the constitution should be read and interpreted in the light of the grand and noble vision expressed in the preamble. FUNDAMENTAL RIGHTS UNDER THE INDIAN CONSTITUTION Introduction: The wise founding fathers of our National Charter have given a detailed list of human rights and incorporated them in the form of Fundamental Rights and Directive Principles under Part III and Part IV of our Constitution. Indian Constitution has most of the provisions of the Universal Declaration of Human Rights. The rights have been categorized into two i.e. the justificable and non-justificable rights. The justificable rights which comprise the civil and political rights are placed in Part III of our Constitution as Fundamental Rights while the theoretically non justificable rights which consist of the socio-economic rights are placed in part IV. They enable the realization and effectuation of the aspiration of Part III and give full meaning to them. Part III comprises Article 12-35 and these fundamental rights are placed at higher pedestal so as to safeguard them from the autocracy of the majority party. These rights are not absolute but they can be abrogated only by amending the Constitution itself. The international Covenant on civil and political rights entered into force in 1983 and the international covenant on economic, social and cultural rights, was entered into force in 1976. These covenants have also been ratified by the Union of India, and the fundamental rights of human rights as they are named in these covenants have been adopted as the law of India on Human Rights, as has been clearly stated in the protection of Human Rights Act, 1993. Fundamental Rights: Under Part III, the Indian Constitution guarantees to the people certain fundamental rights and freedoms, such as-

1. Right to Equality, (Articles 14, 15 and 16).

 

 

2. Right to six freedoms : that is to say-

a) Freedom of Speech and Expression.

b) Freedom to assemble peacefully and without arms.

c) Freedom to form Associations or Unions.

d) Freedom to move freely throughout the territory of India.

e) Freedom to reside and settle in any part of the territory of India.

f) Freedom to practice any profession or to carryon any occupation, trade or business.

These six freedoms are dealt with in Article 19.

3. Right to life and personal liberty (Articles 20, 21 and 22).

4. Right to freedom of religion (Articles 25, 26, 27 and 28).

5. Cultural and Educational Rights (Articles 29 and 30).

6. Right to property (The 44th Amendment of the Constitution has deleted this right).

7. Right against exploitation (Articles 23 and 24), and

8. Right to Constitutional remedies (Article 32).

These rights are available against the State in the sense that they constitute restraint on the legislative and executive powers of the State. 1. Right to Equality (Article 14, 15, 16) Article 14 to 18 of the Indian Constitution guarantee the right to equality to every citizen of India. Meaning of Equality: Article 14 embodies the general principle of equality before law and prohibits unreasonable discrimination between persons. The concept of equality does not mean absolute equality among human beings which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed or the like in favour of any individual, and also the equal subject of all individuals and classes to the ordinary law of the land. Article 14 embodies the general principles of equality before law and prohibits unreasonable discrimination between persons. Equality Before Law and Equal Protection of Laws: Article 14 of the Indian Constitution provides that "The State shall not deny to any person equality before the law or the equal protection of the laws". Article 7 of the Universal Declaration implies absence of any special privilege by reasons of birth, creed or the like in favour of any individual, and also the equal subject of all individual and classes to the ordinary law of the land. Article 14 embodies the general principles of equality before law and prohibits unreasonable discrimination between persons.

 

 

Article 14 declares that "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India". Thus Article 14 uses two expressions "equality before the law and equal protection of the law". a) Article 7 of the Universal Declaration of Human Rights provides that all are equal before the

law and are entitled without any discrimination to equal protection of laws. The first expression "equality before the law" is the English common law doctrine of the rule of law and the second expression "equal protection of the laws" is based on the equal protection clause of the fourteenth Amendment to the U.S. Constitution. The combined effect of these two expression is to achieve "equality of status and opportunity", one of the main objectives expressed in the preamble to the Constitution. The first expression "equality before the law" seeks to ensure that all are equally subject to the jurisdiction of the ordinary courts of law and that no special privilege will be granted in favour of any individual or group. This is equivalent to Dicey's conception of the rule of law that no man is above the law" and that "every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals1. The second expression "equal protection of laws" embodies positive concept of equality. It means equal treatment of all persons situated in similar circumstances. It implies that equals should be treated equally and likes should be treated alike without any discrimination on the ground of religion, race, sex, caste, social status, wealth etc. These two expressions constitute the concept of equal treatment and prohibit discrimination by the State. Thus the predominant idea which underlies these two expression is that of equal justice2. Article 14 permits classification but prohibits class legislation. The right to equality and equal protection of the laws is not an unrestricted right. Reasonable restrictions may be imposed upon this right.

Test of Reasonable Classification: While Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. But classification must not be "arbitrary, artificial or evasive". Classification to be reasonable must fulfil the following two conditions-

i) the classification must be founded on an intelligible differentia which distinguishes

persons or things that are grouped together from others left out of the group; and

ii) the differentia must have a relation to the object sought to be achieved by the Act.

New Concept of Equality (Natural Law): In E.P Royappa v. State of Tamil Nadu3 the Supreme Court challenged the traditional concept of equality which was based on reasonable classification and has laid down a new concept of equality in following words-"equality is a dynamic concept with many aspects and dimensions and it can not be 'ribbed, cabined and confined' within traditional and doctrinaire limits. In Maneka Gandhi v. Union of India4, Bhagwati, J again quoted with approval the new concept of equality propounded by him in E.P. Royappa case. It may be mentioned here that the consideration of such factors as no observance of rule of law, non-observance of principles of natural justice, absence of informed reason and discernible

 

 

principle may provide the guidlines on the basis of which the question of arbitrariness or unreasonableness may be determined by the courts. The new approach adopted by the Supreme Court will be of eminent significance in the effective administration of justice. b) Prohibition of Discrimination on Certain Grounds: Like Article 7 of the United Nations

Declaration on the Elimination of All Forms of Racial Discrimination, Article 15(1) of the Constitution provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Article 15(2) of the Indian Constitution provides that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and place of public entertainment or with regard to the use· of wells, temples, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public. Article 16(1) of the Constitution guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Clause (2) of Article 16 prohibits discrimination against citizens in the matter of employment under State on the grounds of religion, race, caste, sex, descent, place of birth, residence or any of them. Clause (3) (4) (5) of Article 16 incorporate exceptions to the general rule of equality of opportunity in the matters of public employments. c) Enabling Provisions for Weaker Sections of the Society: Article 15 (3) of the Indian

Constitution permits the State to make special protective laws for women and children. Article 15 (4) provides that the State is not prevented from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for scheduled castes and the scheduled tribes. This clause was added to the Constitution by the Constitution (First Amendment Act, 1951). 2. Rights to Six Freedoms (Article 19) Freedom of opinion and expression is a fundamental right and is the touchstone of all the freedoms with which the United Nations is deeply concerned. The Universal Declaration of Human Rights under its Article 19 provides that everyone has the right to freedom of opinion and expression. The International covenant on Civil and Political Rights also incorporates similar provisions. Article 19 provides for protection of certain rights regarding freedom of speech, etc. These are -that all citizens shall have the right -

a) freedom of speech and expression;

 

 

b) to assemble peaceably and without arms; c) to move freely throughout the Union of India; d) to reside and settle in any part of the territory of India; e) right to property has been omitted by 44th Amendment to the Constitution;

Certain restrictions have been imposed on the operation of these freedoms in the succeeding Sub-Articles (2) (3) (4) (5) and (6). As to freedom to form associations and unions, Article 22 of the International covenant on civil and Political Rights, provides that-

a) Every one shall have the right to freedom of association with others including the right to form and join trade unions for the protection of his interests.

b) No restriction may be placed on the exercise of this right other than which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of rights and freedom of others. This Article shall not prevent the imposition of lawful restrictions on members of the armed forces and the police in the exercise of this rights.

c) Nothing in this Article shall authorise State parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and protection of the Right to organise to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice the guarantees provided in that convention.

As to the right to freedom to move, Article 13 Declaration of Human Rights, 1948 provides that-

a) Everyone has the right to freedom of movement and residence within borders of each State.

b) Everyone has the right to leave any country including his own, and to return to his country.

As to right of residence in one's own country, Article 12 of the International Covenant on Civil and Political Rights provides that- "Everyone lawfully within the territory of a State, shall within that territory have the right to liberty of movement and freedom to choose his residence". 3. Right to Life and Personal Liberty (Article 20m 21 and 22) Article 20 Protection in Respect of Conviction for Offences:

a) No person shall "be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence nor be subjected to penalty,

 

 

greater than that which might have been inflicted under the law in force at the time of the commission of offence.

b) No person shall be prosecuted and punished for the same offence more than once. c) No person accused of any offence shall be compelled to be a witness against himself.

Article 21 Protection of Life and Personal Liberty: Part III of the Indian Constitution deals with various fundamental rights. Article 21 of this part deals with right to life and personal liberty. It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The State is under a duty to protect life and liberty of every human being. In case of Samatha v. State of A.P'B K. Ramaswamy J., has observed that right to life enshrined in Article 21, means something more than mere survival of animal existence. It includes right to live with human dignity with minimum sustenance and shelter and all those rights and aspects of life which would go to make a man's life and its attainment, social, cultural and intellectual without which life can not be meaningful, would embrace the protection and preservation of life guaranteed by Article 21. It was held in this case that the tribals have fundamental right to social and economic empowerment. As a part of right to development, to enjoy full freedom democracy offered to them through the States to regulate power of good government that the lands in scheduled areas are preserved for social and economic empowerment of the tribals. In case of Gian Kaur v. State of Punjab it was observed by the Supreme Court that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can 'extinction of life' be included in protection of life. In case of M.C. Mehta v. Kamal Nath8 it was held by the Supreme Court that disturbance caused to the basic environmental elements, such as air, water, and soil which are essential for life" would be hazardous to "life" within the meaning of Article 21 of the Constitution and the Court can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance. Meaning of Personal Liberty in Article 21: The expression 'personal liberty' in Article 21 has received very narrow interpretation in A.K. Gopalar v. State of Madras9, so as to confine the protection of Article 21 to freedom of the person;, against lawful detention. It was held that personal liberty means freedom from such detention or physical restraint which has no justification in law. However, this restrictive interpretation of the expression of 'personal liberty' was not sustained by the Supreme Court in its later decisions. In Kharak Singh v. State of U.P.1O the Supreme Court did not confine itself to such a narrow interpretation of the term 'personal liberty' and took the view that personal liberty is used in Article 21 as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties' of man other than those dealt with in the several clauses of Art. 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, 'personal liberty' in Article 21 takes in and comprises the residue.

 

 

Procedure Established by Law: Article 21 of the Constitution requires that no one shall be deprived of his life or personal liberty except according to the procedure established by law. It means that interference with a person's life and liberty can be justified only when it is in accordance with the procedure prescribed by a valid law. But the prescription of some sort of procedure is not enough, the procedure must be right, just and fair and not arbitrary, fanciful or oppressive Meneka Gandhi v. Union of India. Main Areas in Which Right to Life Liberty and Personal Security Require Specific Enforcement : Following are the main areas in which the right to life, liberty and personal security are threatened, thus, requiring efforts to be made for its enforcement. These areas are- I. Capital Punishment: The provisions for capital punishment still prevail as part of

criminal jurisprudence but the Supreme Court of India has repeatedly asserted that it should be imposed in the rarest of the rare case. In Jagmohan Singh v. State of U.P., it was observed by the Supreme Court that the provisions for capital punishment are not violative of Article 14, 19 and 21 of the Constitution.

See also case Rajendra Prasad v. State of U.P. and Bachan Singh v. State of Punjab of The following rights flow from the provisions of Article 21 of the Constitution-

a) Right to be free from torture or maltreatment.

b) Right to get legal aid in certain circumstances.

c) Right to speedy trial, and

d) Right to compensation of the victim and the accused.

II. Abolition of Slavery and Slavery Like Practice: The phenomenon of slavery in every

form of its manifestation is a serious violation of human rights and fundamental freedoms. It often combines with it coercion, severe discrimination and the most extreme form of economic exploitation. It is the structural abuse of human power and a disgrace to the professed international human rights standard.

III. Abolition of Certain types of Forced or Compulsory Labour: The systems of compulsory, forced or corrective labour are of comparatively recent origin and as such are recognised as new forms of slavery and servitude, begar and other similar forms of forced labour are prohibited under Article 23 of the Constitution. However, an exception has been made in favour of compulsory service for public purposes provided the State does not discriminate on grounds only of religion, race, caste or class or any of them.

IV. Protection Against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment : The rise in the number of reported cases of torture and other cruel, inhuman or other degrading treatment or punishment from various regions of the world are causing serious concerns to international community. The Supreme Court of India, by interpreting Article 21 of the Constitution, has developed human rights jurisprudence for the preservation and protection of prisoners right to human dignity ..

 

 

V. Protection Against Arbitrary Arrest and Detention: The cases of arbitrary arrest or

detention, forced or involuntary disappearances, detention of persons who have exercised certain basic rights and freedoms protected by the universal declaration of Human Rights and the International Covenant on civil and political rights are on increase. Relevant provisions concerning arbitrary arrest and detention are provided under Article 21 and 22 of Indian Constitution.

Article 21 of Indian Constitution of India provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law." Article 22 of the Indian Constitution likewise provides certain procedural safeguards which must be observed whenever a person is arrested and detained in custody. Any law authorising arrest, detention of person must comply with these procedural requirements prescribed under clause (1) and (2) of Article 22 which guarantee four rights to a person who is arrested for any offence under an ordinary law-

1. The right to be informed 'as soon as may be' of ground of arrest.

2. The right to consult and to be represented by a lawyer of his own choice.

3. The right to be produced before a Magistrate within 24 hours.

4. The freedom from detention beyond the said period except by the order of the Magistrate.

The above fundamental rights guaranteed to arrested persons by clauses (1) and (2) of Article 22 are available to both citizens and non-citizens and not to persons arrested and detained under any law providing for preventive detention. Article 22 (3) provides two exceptions to the rule contained in clause (1) and (2). It says that the right given to arrested person under clauses (1) and (2) are not available to following persons-

1. An enemy alien.

2. A person arrested and detained under a preventive detention law.

Clause (4) to (7) of Article 22 provide the procedure which is to be followed if a person is arrested under the law of 'preventive detention'. 4. Right to Freedom of Religion (Article 25, 26, 27, 28) : Article 25 provides that- I. Freedom of Conscience and Free Profession, Practice and Propagation of Religion:

a) Subject to public order, morality and health, and to the other provisions of this Part, all

persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

 

 

b) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law – i) regulating or restricting any economic, financial, political or other secular activity

which may be associated with religious practice.

ii) providing for social welfare are reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

II. Freedom to Manage Religious Affairs : Article 26 provides that every religious

denomination or any section thereof shall have right -

a) to establish and maintain institutions for religious and charitable purposes;

b) to manage its own affairs as matters of religion;

c) to own and acquire movable and immovable property; and

d) to administer such property in accordance with law.

Religious denomination means a religious sect or body having common faith, common organisation and a distinctive name.

III. Freedom as to Payment of Taxes for Promotion of Any Particular Religion: Article

27 of the Constitution provides that no person shall be compelled to pay any taxes which are specially appropriated in payment of expenses for the promotion or maintenance of any particular religion. The provision of this article aims to check the State from imposing any tax for promotion of any particular religion in order to save the secular character of the State and not to become a theocratic State like an Islamic State.

IV. Freedom as to Attendance at Religious Instruction or Religious Worship in Certain

Educational Institutions: Article 28 provides that -

a) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

b) The above provision shall not apply to an educational institution which is administered by the State but has been established under any religious endowment or trust which requires that religious instruction shall be imparted in such institution.

c) No person attending any educational institution recognised by the State or receiving

aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

 

 

Under Article 28 of the Constitution, nobody can be compelled to receive religious instructions. Under the second and third categories of institutions imparting education, no person attending such an institution can be compelled to receive religious instruction or to attend any religious worship or service imparted or conducted by such institution. But if a person chooses himself or herself to attend such instruction or attend the worship or if such person is a minor, his or her guardian if so chooses, then such person can be obliged to attend such religious instruction or attend the particular type of worship which such institution is affiliated with.

5. Cultural and Education Rights (Article 29, 30):

Protection of Interest of Minorities: Article 29 provides that-

a) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

b) No citizen shall be denied admission into any educational institution maintained by the

State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 30(a) says that all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice.

Article 30(2) which prohibits the State in granting and to educational institutions from discriminating against any educational institutions on the ground that it is under the management of minority whether based on religion or language.

Article 29 applies only to citizens while Article 30 applies to both citizens and non-citizens.

6. Right to Property: The 44th Amendment to the Constitution has abolished the

fundamental rights to property. It is now only a general right of the citizens. Article 31 along with Article 19(1)(f) have been abrogated by said Amendment.

7. Right Against Expoitation (Article 23 and 24):

I. Prohibition of Traffic in Human Beings and Forced Labour: Article 23 provides that-

a) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

b) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes and in imposing such service the State shall not make any discrimination on the grounds only of religion, race, caste, or class or any of them.

 

 

(i) traffic in human beings; (ii) begar; and (iii) other similar forms of forced abour

However, an exception is made to this provision that compulsory service may be imposed upon citizens without any distinction of caste, race, religion or class for public purposes.

II. Prohibition of Employment of Children in Factories, etc.: Article 24 of the Constitution provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous engagement.

8. Right to Constitutional Remedies (Article 32, 35): Article 32 (1) provides that-

a) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred is guaranteed.

b) The Supreme Court shall have power to issue directions, or order or writs including writs in the nature of habeas corpus mandamus, prohibition, quo warrant to and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by this part.

The party is free to move to High Court under Article 226 or Supreme Court under Article 32. There must be a clear breach of fundamental right not involving disputed questions of fact. Non-justiciable and political matters can not be dealt with under the guise of Public Interest Litigation. It may, however, be noted that the right to move the Supreme Court is itself a guaranteed right. In the words of Patanj L Sastri, J., Supreme Court is the protector and guarantor of fundamental rights. Comparison of the Provisions of Part III with that of Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR): Types of Right/Freedom Provisions/ or Part I

Indian Constitution Provision/s in UDHR Provision/s in ICCPR

Right to equality and discrimination

Articles 14, 15 and 16 Article 7 Articles 2, 3, 14 and 26

Right to life and liberty Article 21 Article 3 & 7 Article 6 & 9 (1) Right against arbitrary arrest

Article 22 Article 9 & 10 (1) Article 9

Right against self incrimination

Article 20 - Article 14

Freedom of thought and expression

Article 19 (1)(a) Article 19 Article 19

Freedom of movement Article 19 (1) (d) & (e) Article 13 Article 12 Right/freedom to assemble peacefully

Article 19 (1) (b) Article 14 & 20 Article 22

Right to form associations or unions

Article 19 (1) (c) Article 23 (3) -

Freedom of conscience religion

Article 25, 26 27 & 28 Article 18 Article 18 & 27

 

 

Right against slavery Article 23 Article 4 Article 8 Cultural rights Article 29 & 30 Article 27 -- Right to property Article 300A Article 17 - DIRECTIVE PRINCIPLES OF STATE POLICY AND HUMAN RIGHTS Under Part IV of the Constitution the following social and economic rights are directed as State policy of administration, and to be adopted as such in their legislative and administrative measures. These rights are-·

1. Right to adequate means of livelihood [Article 39(a)]

2. Right against economic exploitation [Article 39(b)].

3. Right of both sexes of equal pay for equal work [Article 39(d)].

4. Right to work (Article 41).

5. Right to leisure and rest.

6. Right to public assistance in case of unemployment, old age, sickness and the like

(Articles 41 and 42).

But it may be noted that the fundamental rights are enforceable against the State and not against the private individuals with the exception of the rights guaranteed under Article 15(2), Article 17, Article 23(1) and Article 24. The DPSP are the directions which would ultimately help in the realization of the fundamental rights. Certain 'directive principles of state policy' based on social, political and economic justice have been laid down for the guidance of the legislatures as well as the government authorities. They are intended to be kept in mind both by the legislatures in enacting laws and by the executive authorities in enforcing laws. Although these principles are not enforceable by any Court yet they are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws for the general welfare of their men, women and children. These principles are the "goals" to be achieved by Part "' of the Constitution. They are intended to ensure "distributive justice" for removal of inequalities and disabilities and to achieve a fair division of wealth amongst the members of the society. The comparable provisions of the Directive Principles of State Policy enshrined in he Constitution of India and the International Covenant of Economic, Social and Cultural Right (in short (ICESCR) are given below-

 

 

Articles of the Constitution Articles of ICESCR Article 39 Articles 3, 6(1) and 7 Article 41 Article 6 and 7 Article 42 Articles 7 and 10.2 Article 43 Articles 11(1),11(2) and 15 Article 45 Articles 13(1), (2)(a), (3) and (4) and 14 Article 47 Articles 12(1), (2), (a) to (d) Article 51 Articles 1.3 and 2(1) PUBIC INTEREST LITIGATION The above traditional rule of locus standi that a petition under Article 32 can only be filed by a person whose fundamental right is infringed has now been considerably relaxed by the Supreme Court in its recent rulings. Recently the Supreme Court of India evolved the concept of Public Interest Litigation thereby throwing open the portals of Courts to the common man. The concept of Public Interest Litigation, an innovation of the activist judiciary of this country, has indeed proved to be a boon to the downtrodden, oppressed and exploited sections of the society, by providing easy access to justice. The philosophy of Public Interest Litigations lies in that, where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal rights, and such person or class of determinate persons are unable to approach the Court for relief due to poverty and other disabilities, any member can move an application for an appropriate direction. In a case of A.B.S.K. Sangh (Rly) v. Union of India15 it was held that the Akhil Bhartiya Sochil Karmachari Sangh (Railway), though an unregistered association could maintain a writ petition under Article 32 for the redressal of a common grievance. Access to justice through 'class actions' 'Public Interest Litigation' and 'representative proceedings' is the present constitutional jurisprudence. In the Judges Transfer Case16, a 7 member bench of the Supreme has firmly established the rule regarding the Public Interest Litigation. The Court held that any member of the public having "Sufficient Interest" can approach the court for enforcing constitutional or legal rights of other persons and redressal of a common grievance. "Lest the golden key to unlock the doors of justice remain only with the moneyed people, the Supreme Court took a dynamic approach and pioneered the concept of Public Interest Litigation (PIL) permitting litigation at the instance of public spirited persons, for the enforcement of rights of any other person. It is also called (SAL) that is Social Action Litigation. Prof. Upendra Bakshi says that the terms PIL is a misnomer and he prefers the terms SAL for it. The Landmark invocations of Public Interest Litigation (PIL) include the following things viz. –

1. Expanding horizons of Locus Standi rule.

2. Evolving espistolary jurisprudence.

3. Appointing Socio-Legal Commissions of Enquiry.

4. Monitoring laws and judicial orders.

 

 

5. Enforcing Public duties

Public interest is promoted by a spacious construction of Locus Standi in our socio-economic circumstances. It was declared by Supreme Court that Public Interest Litigation is a potent weapon for the enforcement of 'Public duties' where executive inaction of misdeed resulted in 'Public enquiry'. 1. Prisoner's Rights and Prisoner's Imprisonment: The Supreme Court has upheld prisoner's

and detent’s right to speedy trial, free legal aid, dignified treatment and rights against illegal detention, custodial death and torture etc. Rudal Shah v. State of Bihar (1983) 4SC 141.

D.B.M. Patnaik v. State of A.P, AIR 1974 SC 2092. 2. Protection Against Inhuman Treatment: It has been held that the writ of habeas corpus

can be issued not only for releasing a person from illegal detention but also for protecting prisoners from inhuman and barbarous treatment.

In Sunil Batra (no. 1) v. Delhi Administration AIR 1978 SC 1575. 3. Protection of Bonded, Contract and Child Labour: In Public Interest Litigation cases the

Supreme Court and the High Courts gave directions in this regard. Declaring that right to life includes finer graces of human civilisation, the Supreme Court has virtually rendered this fundamental right as enumerated under Article 21 of the Constitution a repository of various human rights. Right to life includes right to live with human dignity, right to healthy environment, free education upto 14 years of age, emergency medical aid, privacy etc.

Parmanand Katara v. Union of India, AIR 1989 SC 2039.

M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548.

4. Protection of Environment : Protection of environment and Public health is a Constitutional

obligation of the State. The Court can close those Industries polluting environment by toxing emissions or hazardous effluents or order for shift of Industry. State is bound to protect all natural resources of public use, as their trustee. M. C. Mehta v. Union of India, AIR 2004 SC 4016.

5. Political Corruption and Crime: The Politicians cannot take or receive the benefits of their

posts. Every citizen has locus standi to move the higher Courts to maintain public interest. Public Interest Litigations alleging corruption and other criminal activities indulged by Prime Minister, and ministers ensure that they cannot abuse the discretionary powers.

Public Interest Litigation serves as a potent weapon against negligent and indifferent behaviour of the Law enforcing agencies, the atrocities committed by the protectors of law. It is also proved

 

 

to be an effective tool to bring justice within the reach of the poor masses. It intends to vindicate Public Interest, where fundamental and other rights of people who are poor, ignorant or are in a socially or economically disadvantageous position, go unredressed. Public Interest Litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure .them social and economic justice which is the significant tune of our Constitution. Ban on Smoking in Public Place: A Public Interest Litigation was filed by the Congress leader Murli S. Deora against smoking in the Supreme Court seeking orders for banning smoking in public places. Supreme Court directed all States and Union Territories to immediately issue order banning smoking in public places and public transport, including railways. Murti S. Deora v. Union of India AIR 2002 SC 40. Guidelines for Filing Public Interest Litigation Application: The application for PIL may be filed on the following grounds - 1. That the impugned action is violative of any of the fundamental right enshrined in Part-II' of

the Constitution.

2. That no action complained of is palpably illegal or malafide and affect the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance of law.

3. That the persons approaching the Court has come with clean hands, clean hearts and clean

objectives.

4. Identification of certain special categories of cases where Public Interest Litigation is permitted for instance, cases involving atrocities against women, custodial deaths, neglected children, the cases of undertrial prisoners, environmental pollution etc.

IMPORTANT QUESTIONS Q.1 Discuss the rights and freedoms of the people contained in the Constitution of India. Q.2 State what steps have been taken for the promotion of the status of the women at the

national and international level. Q.3 Discuss the rights of minorities guaranteed under the Constitution of India. Q.4 Explain the term equality. What is the relationship between equality and liberty? Q.5 Write about the protection of human rights of women and child under the Constitution of

India. Q.G Write an essay on Public Interest Litigation in expanding human rights.

 

 

UNIT - -IV

PROTECTION OF HUMAN RIGHTS - 1993

Introduction: The Union of India promulgated the protection of Human Rights Ordinance, 1993 through the President of India. Later the Indian Parliament enacted the Protection of Human Rights Act, 1993 for the constitution of a National Human Rights Commission, State Human Rights Commissions in State and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto. It has been enacted as Act no. 10 of 1994, though named or entitled as the Protection of Human Rights Act, 1993. The Act extends to the whole of India except that it would apply to the State of Jammu and Kashmir only so far as it pertains to the matters relatable to any of the entries entertained in list I or list III in the Seventh Schedule to the constitution as applicable to that State. It has been deemed to have come into force on the 28th September of 1993. According to Section 2(d) of the Act, Human Rights means the rights relating to life, liberty, equality and dignity of the Individual guaranteed by the Constitution or embodied in the International covenants and enforceable by courts in India. According to Section 2(d) International Covenant means the International Covenant 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 16th December, 1966. Constitution of the National Human Rights Commission: The Constitution of the NHRC is dealt under Chapter II of the Protection of Human Rights Act, 1993. Section 3 of the Act says - The Central Government shall constitute a body to be known as the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.

1. A chairperson who has been a Chief Justice of the Supreme Court;

2. One Member who is, or has been a judge of the Supreme Court;

3. One Member who is, or has been the Chief Justice of a High Court;

4. Two Members to be appointed from amongst persons having knowledge of, or practical

experience in, matters relating to human rights.

The Chairpersons of the National Commission for Minorities, the National Commission for the scheduled Castes and Scheduled Tribes and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to U) of Section 12. There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as it may delegate to him.

 

 

The head quarters of the Commission shall be at Delhi and the Commission may, with the previous approval of the Central Government, establish offices at the other places in India. The appointments of the Chairperson and other Members are elaborately discussed under Section 4 of the Act. The other provisions relate to the removal of a member of the Commission, the term of office of members, and member to act as a Chairperson or to discharge his functions in certain circumstances, the terms and conditions of service of members, vacancies, etc., not to invalidate the proceedings of the Commission, the procedure to be regulated by the Commission, the officers and other staff of the Commission. a) Powers of National Human Rights Commission: This commission has two kinds of

powers - Powers Relating to Inquiries (Section 13(1» : Section 13(1) deals with the powers relating to inquiries and enumerates the matters in which Commission, while inquiring into complaints under the Act shall have powers of Civil Court trying a suit under C.PC. as follows- Power of Summoning and Enforcing the Attendance of Witnesses [Section 13(1 )(a)] Section 13(1 )(a) of the Act says that the Commission shall have all the powers of a Civil Court trying a suit under CPC while inquiring into complaints under the Act, and in particular in matters Iike- (i) Summoning and enforcing the attendance of witnesses and examining them on

oath;

(ii) Discovery and production of any document;

(iii) Receiving evidence on affidavits;

(iv) Requisitioning any public record or copy thereof from any Court of office;

(v) Issuing Commissions for the examination of witnesses or documents;

(vi) Any other matter which may be prescribed.

Order XVI C.P.C. deals with summoning and attendance of witnesses. The principle is that full opportunity should be given to the parties to produce their evidence and state their case before the Court. Discovery and Production of any Document [Section 13 (1)(b)] Section 13 (1)(b) of the Act specifies that the Commission while enquiring into complaints under the Act shall share the powers of a Civil Court while trying a suit under C.PC. relating to discovery and production of any document. Order XI deals with the Discovery and Inspection. Receiving Evidence on Affidavits [Section 13 (1)(c)] Section 13 (1)(c) of the Act specifies that the Commission shall have power just like a Civil Court in the Matter of receiving evidence on affidavits. Order XIX C.PC. deals with affidavits. Issuing Commissions: The Commission shall have power to issue Commissions for examination of witnesses or documents just like Civil Court. Order XXVI C.P.C. deals with Commissions.

 

 

b) Power to obtain Information [Section 13(2)] Section 13(2) says that the Commission shall have 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 inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of Section 176 and Section 177 LPC.

c) Power to Enter any Building or Place [Section 13(3)] Section 13(3) says that the Commission or any other officer not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject-matter of the enquiry may be found and may seize any such document or take extracts or copies therefrom subject to the provisions of Section 100 Cr. PC. 1973, in so far as it may be applicable.

d) Power to Forward Certain Cases to Magistrate [Section 13(4)] Section 13(4) says that the

Commission shall be deemed to be a Civil Court and when any offence as is described in Section 175,178,179,180 and 228 of the I.P.C. is committed in the view or presence of the Commission the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in Cr. PC. 1973, 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 Cr. PC. 1973. There are following three essentials to constitute an offence under Section 228 LPC.-

(i) Intention.

(ii) Insult or interruption to public servant.

(iii) The public servant must sit in any stage of judicial proceeding.

It is to be noted that Section 228 LPC. is not exhaustive and even if the facts of the case disclose an offence falling under Section 228 LPC. the case may be tried as a contempt under Section 3 of Contempt of Courts Act. e) Nature of Proceeding before Commission to be a Judicial Proceeding [Section 13(5)]

Section 13(5) says that every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228 and for the purposes of Section 196 I.PC. and the Commission shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of Cr. PC. 1973.

2. Powers Relating to Investigation (Section 14): a) Section 14 provides that 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.

 

 

b) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (1) may, subject to the direction and control of the Commission-

(i) Summon and enforce the attendance of any person and examine him;

(ii) Require the discovery and production of any document; and

(iii) Requisition any public record or copy thereof from any office.

c) The provisions of Section 15 shall apply in relation to any statement made by a person before

any officer or agency whose services are utilised under sub-section (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission.

d) The officer or agency whose services are utilised under sub-section (1) 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.

e) The Commission shall satisfy itself about the correctness of the facts stated and the

conclusion, if any, arrived at in the report submitted to it under sub-section (4) 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.

Inquiries into Complaints Relating to the Violation of Human Rights: Regarding the inquiry by the commission into complaints, Section 17 provides that the Commission, while inquiring into the complaints of violations of human rights, may- 1. Call for information or report from the Central Government or any State Government Or any other authority or organisation subordinate thereto within such time as may be specified by it, provided that -

a) If the information or report is not received within the time stipulated by the commission, it may proceed to inquire into the complaint on its own;

b) If, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may ot proceed with the complaint and inform the complainant accordingly;

2. Without prejudice to anything contained in CI. (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry. Steps After Inquiry (Section 18): Section 18 of the Act deals with steps to be taken by the commission after the inquiry. According to Section 18, the Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely-

 

 

1. Where the inquiry discloses, the commission of violation of human rights, or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;

2. Approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;

3. Recommend to the concerned Government or authority for the grant of such immediate

interim relief to the victim or the members of his family as the Commission may consider necessary;

4. Subject to the provisions of CI. (5) provide a copy of the inquiry report to the petitioner or

his representative;

5. The Commission shall send a copy of its 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;

6. The Commission shall publish its inquiry report together with the comments of the concerned

Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.

Procedure with Respect to Armed Forces: According to Section 19(1), notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely - 1. It may, either on its own motion or on receipt of a petition, seek a report from the Central

Government;

2. After the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendation to that Government.

3. 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.

4. The Commission shall publish its report together with the recommendations made to the Central Government and the action taken by that Government on such recommendations.

5. The Commission shall, provide a copy of the report published under sub-section (3) to the

petitioner or his representative. STATE HUMAN RIGHTS COMMISSION

 

 

Under Section 21 Constitution of State Human Rights Commissions is provided that- 1. A State Commission may constitute a body to be known as the (Name of the State) Human

Rights Commission to exercise the powers conferred upon and to perform the functions assigned to a State Commission under Chapter V of this Act.

2. The State 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, 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. 3. There shall be a secretary who shall be the Chief Executive Officer of the state Commission.

4. The headquarters of the State Commission shall be at such place as the State Government

may by notification specify. 5. 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 of the Seventh Schedule to the Constitution. But if any such matter is already being inquired into by the Commission of any other Commission duly constituted under any law for the time being in force, the State Commission shall not inquire into the said matter. And besides the above, in relation to' the Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures List II and List III in the Seventh Schedule to the Constitution" the words and figures "List III to the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in relation to which the Legislature of that State has power to make law" had been substituted.

Under Section 22 appointment of Chairperson and other Members of the State Commission has been provided that- 1. The Chairperson and other Members shall be appointed by the Governor by warrant under

his hand and seal. But every appointment under this sub-section shall be made after obtaining the recommendation of a Committee consisting of-

1) The Chief Minister

2) Speaker of the Legislative Assembly

3) Minister-in-Charge of the Department of Home in that State

4) Leader of the Opposition in the legislative Assembly

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 also be Members of the Committee. Besides it, no sitting Judge of a High Court or a sitting District Judge shall be appointed except after consultation with the Chief Justice of the High Court of the concerned State.

 

 

2. No appointment of a Chairperson or a Member or the State Commission shall be invalid merely by reason of any vacancy in the Committee.

Removal of a Member of the State Commission: Under Section 23(1) Subject to the provisions of sub-section (2), the Chairperson or any other Member of the State Commission shall only be removed from his9ffice by order of the President on the ground of proved misbehaviour or incapacity, after the Supreme 'Court, on a reference being made to it by the President, has on inquiry 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 en any such ground to be removed. Section 23(2) provides that notwithstanding anything in sub-section (1) 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 - 1. is adjudged an insolvent; or

2. engages during the term of office in any paid employment outside the duties of his office; or

3. is unfit to continue in office by reason of infirmity of mind or body; or

4. is of unsound mind and stands so declared by a competent Court; or

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

The term of office of Members of the State Commission has been provided in Section 24 that- 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 and shall be eligible for reappointment for another term of five years. But 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 India. Section 25 provides that when a Member has to act as Chairperson or to discharge his functions in certain circumstances that - 1) In the event of occurrence of any vacancy in the office of the Chairperson by reason of his

death, resignation, or otherwise, the Governor may, by notification authorise one of the Members to act as the Chairperson until the appointment of a new Chairperson to fill such vacancy.

 

 

2) When the Chairperson is unable to discharge his functions owing to absence on leave or otherwise such one of the members as, the Governor may, by notification, authorise on this behalf, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his office.

Terms and Conditions of Office of Members of the State Commission: Terms and Conditions of Office of Members of the State Commission have been provided in Section 26 that the salaries and allowances payable to, and other terms and conditions of service of the Members shall be such as may be prescribed by the State Government: But neither the salary and allowances nor the other terms and conditions of service of a Member shall be varied to the disadvantage after his appointment. Relating to Officers and other Staff of the State Commission, Article 27 provides that - 1. The State Government shall make available to the Commission-

a) an Officer not below the rank of a Secretary to the State Government who shall be the Secretary of the State Commission; and

b) such police and investigative staff under the officer not below the rank of an Inspector General of police and such other officers and staff as may be necessary for the efficient performance of the functions of the State Commission.

2. Subject to such rules as may be made by the State Government in this behalf, the State Government may appoint such other administrative, technical and scientific staff as it may consider necessary.

3. The salaries, allowances and conditions of service of the officers and other staff appointed under sub-section(2) shall be such as may be prescribed by the State Government.

Section 28 provides for annual and special reports of State Commission that - 1. The State Commission shall submit an annual report to the State Government AND MAY

AT ANY TIME SUBMIT SPECIAL REPORTS ON ANY MATTER WHICH IN THE OPINION OF THE Commission is of such urgency or importance that it should· not be deferred till submission of the annual report, and

2. The State Government shall cause the annual and special reports of the State Commission to be laid before each House of 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 non-acceptance of recommendations, if any.

The provisions of Sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall apply to a State Commission also and shall have effect, subject to the following modifications, namely -

1. Reference to "Commission" shall be construed as references to "State Commission".

 

 

2. In Section 10, sub-section (3) for the words "Secretary-General" the word "Secretary" shall be substituted.

3. In Section 12, clause (f) shall be omitted.

4. In Section 17, clause (i) the words "Central Government or any" shall be omitted.

Functions and the Power of the State Human Rights Commission: Functions and the Power of the State Human Rights Commission are the same as that of National Commission. Human Rights Court Section 2(e) provides that in this Act unless the context otherwise requires, Human Rights Court means the Human Rights Court specified under Section 30. According to Section 30, for the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences provided that nothing in this section shall apply, if-

a) A Court of Session is already specified as a Special Court; or

b) A Special Court is already constituted, for such offences under any other law for the time being in force.

The National Commission for Women Act, 1990 Women have suffered to the utmost in their human rights of equality with men throughout the world for times immemorial in all communities. Efforts have been going on to improve their status and attainment or restoration of their human rights. The National Commission for Women Act, 1990 is such an attempt to recognise and get the worth of women and their horn rights inalienable. This Act was brought to constitute a National Commission for Women and to prove for matters connected therewith or incidental thereto. This Act extends to the whole of India t the State Jammu and Kashmir. The Act came into force on 31st January, 1992. Constitution of the Commission : The Commission consists of the following: a. A Ohairperson, committed to the cause of women, to be nominated by the Central

Government;

b. Five persons to be nominated by the Central Government from amongst persons of ability, integrity and! standing who have had experience in law or legislation, trade unionism, management of an industry or organisation committed to increasing the employment potential of women, women's voluntary organisations, (including women activists), administration economic development, health, education or social welfare:

 

 

Provided that at least one Member each shall be from 'amongst persons belonging to the Scheduled Castes and Scheduled Tribes respectively;

c. A Member-Secretary to be nominated by the Central Government, who shall be:

a. an expert in the field of management, organisational structure or sociological movement, or

b. an officer who is a Member of a Civil Service of the Union of an all India service or holds a civil post under the Union with appropriate experience.

Term of Office: The Chairperson and every Member shall hold officer for such period, not exceeding three years, as may be specified by the Central Government in this behalf. Committees of the Commission: The Commission may appoint such Committees as may be necessary for dealing with special issues as may be taken by the Commission from time to time. Functions of the Commission: The Commission shall perform all or any of the following functions, namely- (a) investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws; (b) present to the Central Government, annually and at such other time as the Commission may deem fit, reports upon the working of those safeguards; (c) make in such reports recommendations for the effective implementation of those safeguards for improving the conditions of women by the Union or any State; (d) review, from time to time, the existing provisions of the Constitution and other laws affecting women and recommend amendments thereto so as to suggest remedial, legislative measures to meet any lacunae, inadequacies or shortcomings in same such legislations; (e) take up the cases of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities; (f) look into complaints and take suo motu notice of the matters relating to --'

1) deprivation of women's rights; 2) non-implementation of laws enacted to provide protection to women and also to achieve

the objective of equality and development; 3) non-compliance of policy decisions, guidelines or instructions aimed at mitigating

hardships and ensuring welfare and providing relief to women, and take up issues arising out of such matters with appropriate authorities.

(g) call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal;

 

 

(h) undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible for impeding their advancement, such as, lack of access to housing and basic services, inadequate support services and technologies for reducing drudgery and occupational health hazards and for increasing their productivity; (i) participate and advise on the planning process of socio-economic development of women; (j) evaluate the progress of the development of women under the Union and any State; (k) inspect or cause to be inspected a jail, remand home, women's institution or other place of custody where women are kept as prisoners or otherwise, and take up with the concerned authorities for remedial action, if found necessary; (I) fund litigation, involving issues affecting a large body of women; (m) make periodical reports to the Government on any matter pertaining to women and in particular various difficulties under which women toil; (n) any other matter which may be referred to it by the Central Government. These functions can be performed by the Commission when it is equipped with appropriate powers. That is why the Act provides that the Central Governmenl ·shall cause all the reports referred to in clause (b) of sub-section (1) of Section 10 to be laid before each House of the Parliament along with a Memorandum explaining the action .taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any such recommendations. In case of reports relating to any State such reports shall be laid before the Legislature of the State alongwith a memorandum explaining the action taken or proposed to be taken in the recommendations and the reasons for the non-acceptance if any of such recommendation. Further, the Commission shall, while investigating any matter referred to in clause (a) or sub-clause (i) of clause (f) of sub-section (1) of Section 10, have all the powers of a civil court trying a suit, and, in particular, in respect of trjllowing matters, namely: (a) summoning and enforcing the attendance of any person from any part of India and

examining him on oath; (b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any council or office;

(e) issuing Commissions for the examination of witnesses and documents; and

(f) any other matter which may be prescribed.

 

 

The Act also provides that Chairperson, Members and staff of the Commission shall be deemed to be public servants within the meaning of Section 21 of Indian Penal Code (45 of 1860). Besides this, it shall be obligatory for the Central Government to consult the Commission in all major policy matters affecting women. Introduction: Under the Dictatorial Rule in Germany the Jews were in minority population and they had to suffer innumerable genocidal atrocities under that rule. In India among the great population of one hundred crores, eighty percent are Hindus and the remaining 20 percent are minorities. The Constitution of India gives more than sufficient rights and protection to the minority classes under Article 14, 15,25,26,27,28,29,30. The word minority has not been defined in the Constitution. The United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities has defined 'minority' as follows- "The term 'minority' includes only those non-dominant groups in a population which possess and to preserve stable, ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population. Such minorities should properly include a number of persons sufficient by themselves to preserve such traditions or characteristics, and such minorities should be loyal to the State of which they are nationals." Article 350 of the constitution further provides as to language to be used in representations for redress of grievances that every person shall be entitled to submit a representation for redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be. Constitution of the National Commission for Minorities Act, 1992 The National Commission for Minorities Act, 1992 has been brought to give due protection to the minorities. Under this Act a National Commission for Minorities has been constituted. Constitution of the Commission: The Commission consists of a Chairperson, a Vice-Chairperson and five Members to be nominated by the Central Government from amongst persons of eminence, ability and integrity. This is however subject to the condition that five Members including the Chairperson shall be from amongst the minority Communities. Term of Office: The Chairperson and every member shall hold office for a term of three years from the date he assumes office. Functions of the Commission: The Commission shall perform all or any of the following functions, namely- (a) evaluate the progress of the development of minorities under the Union and the States;

 

 

(b) monitor the working of the safeguards provided in the Constitution and in laws enacted by the Parliament and the State Legislature;

(c) make recommendations for the effective implementation of safE1guards for the

protection of the interests of the minorities by the Central Government or the State Governments;

(d) look into specific complaints regarding deprivation of rights and safeguards of the

minorities and take up such matters with the appropriate authorities. (e) cause studies to be undertaken into problems, arising out of any discrimination against

minorities and recommend measures for their removal; (f) conduct studies, research and analysis on the issues relating to socio-economic and

educational development of minorities. (g) suggest appropriate measures in respect of any minority to be undertaken by the Central

Government or the State Governments; (h) make periodical or special reports to the Central Government on any matter pertaining

minorities and in particular difficulties confronted by them; and The Commission shall, while performing any of the functions mentioned in sub-clauses (a), (b) and (d) of sub-section (1) of Section 9 mentioned above shall have all the powers of a civil court trying a suit and, in particular, in respect of the following matters, namely- (a) summoning and enforcing the attendance of any person from any part of India and

examining him on oath; (b) requiring the discovery and production of any document; (c) Receiving any pubic record or copy thereof form any curt of office. (d) requisitioning any public record or copy thereof from any curt r office; (e) issuing commissions for the examination of witnesses and documents; and (f) any other matter which any be prescribed. Annual Report: The Commission shall prepare, in such form and at such time, for each financial year, as may be prescribed, its annual report, giving a full account of its activities during the previous financial year and forward a copy thereof to the Central Government. The Act also provides that Chairperson, Members and staff of the Commission shall be deemed to be public servants within the meaning of section 21 of the IPC.

 

 

COMMISSION ON SCHEDULE CASTES AND SCHEDULE TRIBES Introduction: Indian Constitution is concentrated by the ideals of equality and justice both in the social and political fields. Accordingly, it abolishes any discrimination to any class of persons on the ground of religion, race or place of birth. The Constitution does not define as to who are the persons who belong to scheduled castes and Scheduled Tribes. Article 341 and 342, however, empower the President to draw up a list of these castes and tribes as Scheduled Castes and Scheduled Tribes. In respect of a State it can be done after consultation with the Governor of the State concerned. The Constitution provides the following special provisions for the protection of the interests of the Scheduled Tribes -

1. Reservation of seats in Lok Sabha and State Assemblies (Art. 330 and 332).

2. National Commission for Scheduled Castes and Scheduled Tribes.

National Commission for Scheduled Castes and Scheduled Tribes: The Constitution (65th Amendment) Act, 1990, has amended Article 338 of the Constitution. The amended Article 338 provides for the establishment of National. Commission for Scheduled Castes and Scheduled Tribes in place of a special officer. For clause (1) and (2), clause& (1), (2), (3), (4) and (5) have been substituted. Constitution of Commission: The Constitution shall consist of a Chairman, Vice-Chairman and five other members. The Chairman, Vice-Chairman and members of the Commission shall be appointed by the President. The conditions of service and tenure of office of the members of Commission shall be such as the Presidents may by rule determine [Clauses (2) and (3)). Duties of Commission: It shall be the duty of the Commission-

a) to investigate and monitor all matters relating to the safeguards for SCs and STs under the Constitution and any other law or any order of the Government and to evaluate the working of such safeguards,

b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of SCs and STs; to participate and advise on planning process of socio-economic developments of SCs and STs and to evaluate the progress of their development under the Union and any State;

c) to present to the President reports upon the working of those safeguards annually and at such other times as the Commission deems fit;

d) to make recommendations as to the measures that should be taken by the Centre and States for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the SCs and STs;

 

 

e) to discharge such other functions for protection, welfare and development and advancement of SCs and STs as the President may, subject to the provisions of any law made by Parliament, by rule specify. [Clause(5)].

The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union. Similar action will be taken by the Governor of the State if it is concerned with any matter The Commission shall have power to regulate its own procedure. [Clause (4)]. While investigating any matter under sub-clauses (a) and (b) of clause (5), the Commission shall have all the powers of a civil court and in particular in respect of the following matters-

a) summoning and enforcing the attendance of any person from any part of India and

examining him on oath;

b) requiring the discovery and production of any document.

c) Receiving evidence on affidavit

d) Requisitioning any pubic record or copy thereof from any court or office

e) Issuing commissions for the examination of witness and documents.

f) any other matter which the President may, by rule, determine [clause (8)].

The Union and State Governments shall consult the Commission on all major policy matters affecting SCs and STs [clause (9)]. In order that the safeguards given to the minorities should be observed, Article 338 provided for the appointment of a Special Officer by President for the Scheduled Castes and Scheduled Tribes. The Special Officer was required to investigate all matters, relating to the safeguards provided for these classes and to report to the President upon the working of those safeguards at such intervals as President would direct. The President was to cause all such reports to be laid down before each House of Parliament. The President may at any time and shall at the expiration of ten years from the commencement of the Constitution, appoint a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes in the State [Article 339 (1)]. The Central Government is also authorised to give directions to a State as to the drawing up and execution of the Schedule specified in the direction to be essential for the welfare of the Scheduled Tribes in the State [Article 339 (2)]. IMPORTANT QUESTIONS Q.1 Discuss the rights of minorities guaranteed under the Constitution of India. Q.2 Elaborate the contents and structure of the African Charter.

 

 

Q.3 Discuss the Constitution, functions and powers of State Human Rights Commissions. Q.4 Write an essay on Public Interest Litigation in expanding human rights. Q.5 Explain the term equality. Q.6 How far various human rights have been included within the Constitution of India? Q.7 Give a brief account of the functions and powers of the commission on schedule castes

and schedule tribes. Q.8 Discuss the rights and freedoms of the people contained in the Constitution of India. Q.9 State what steps have been taken for the promotion of the status of the women at the

national and international level.

 

 

UNIT – V

ORIGIN-NATIONAL AND INTERNATIONAL AND ITS REMEDY International Humanitarian Law: International humanitarian law, may in the traditional sense of the term, be defined as the human rights component of law of war. In other words it can be said that International humanitarian law is that branch of human rights law which applies in international as well as internal armed conflicts with the view to protect the human-beings from the consequences of war. Thus, humanitarian law deals with those matters which have an impact of armed conflicts on the life personal integrity and liberty of human beings. Origin and Development of Humanitarian Law: The International humanitarian law is comparatively recent in its origin. Its origin may be traced back to the Geneva Convention of 1864. Another milestone in the development of international humanitarian law was the Hague Conferences of 1'899 and 1907. Many Conventions were adopted at these conferences which provided for the regulation of conduct of hostilities, convention IV together with the regulations in annex, was of particular importance because it contained the law and customs of war on land. Notably, the International humanitarian's law in its initial stages of development was concerned mainly with the protection of war victims. This trend has continued throughout the period of World War I. However in 1919 the league of Red Cross Society was organised with a mandate to provide assistance to the calamities on an international basis. This has added new dimensions to the scope of international humanitarian law. The Period immediately after the end of Second World War may be described as epoch making from the view point of the development of international humanitarian law because of the fact that four new International humanitarian instruments, i.e. four Geneva Conventions of 1949 were evolved during this period, which were approved in Geneva on August 12, 1949. These convention were -

1. Convention for the amelioration of the condition of the wounded, sick in

armed forces in the field.

2. Convention for amelioration of the condition of the wounded, sick and ship-

wreaked members of the armed forces at sea.

3. Convention relative to the treatment of the prisoners of war.

4. Convention relative to the protection of civilian persons in time of war.

All the above conventions came into force on October 21, 1950. One of the purposes for the conclusion of these conventions was to reduce or limit the sufferings of individuals, and to circumscribe the area within which the savagery and armed conflict is permissible6. These conventions provided a number of humanitarian rules to various classes of persons such as the

 

 

wounded and sick in armed forces in the field as well as at sea, prisoners of war and civilian persons in time of war. These conventions also imposed corresponding duties upon the protecting power, the International Committee of Red Cross and other humanitarian organisations. Article 2 of all the four conventions deals with all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting parties even if the state of war is not recognised by any of them. However Article 3 of which is common to all Geneva conventions defines certain rules to be applied in the armed conflicts of a non-international character, as they reflect the elementary consideration of humanity. Two Additional Protocols were added to these conventions in 1977. The Protocol I relates to the protection of victims of international armed conflicts and the Protocol If deals with the protection of victims of non international armed conflicts. In addition, the United Nations has adopted a Convention in 1981 concerning the prohibitions or restrictions on the use of certain conventional weapons. Sources of Humanitarian_ Law : The major sources of International humanitarian law are the four Geneva Conventions of 1949 and two 1977 Protocols Additional to these conventions. In addition to these documents, international humanitarian law also consists of some earlier declarations and conventions, for instance, the declaration of Paris 1856, the declaration of Petersburg of 1868. The Geneva Gas and Bacteriological Warfare Protocol of 1925 as supplemented by the convention of 1972 on the Prohibition of the development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and their destruction 1929 Geneva Convention. To this may be added 1981 United Nations Convention of Prohibition or Restrictions on the use of Certain Conventional Weapons, which may be deemed to be excessively injurious or to have indiscriminate effects. Purpose of Humanitarian Law: The aims of humanitarian aw are-

a) To protect persons who are not or are no longer directly engaged in hostilities, the wounded, shipwrecked, prisoners of war and civilians.

b) To limit the effects of violence in fighting to attainment of the objectives f the conflict. Humanitarian Law protects the rights of certain persons in certain circumstances. These rules are inspired by principles of humanity? and they are meant to avoid human sufferings, barbarism and brutality in armed conflicts. Humanitarian law is different from the law in the sense that the former does not cover all those matters which according to a traditional view belongs to the law of war. Thus, the impact of war on the diplomatic and treaty relations of the parties to a conflict, the rules regarding economic warfare and those concerning relations to neutral states are outside the scope of humanitarian law. However, those rules of war which are based on humanitarian considerations or motivations are called humanitarian law. Thus, it would not be inappropriate to refer to humanitarian law as a branch of rules of warfare.

 

 

Character of Humanitarian Law: The conventions adopted on humanitarian law shall be binding on all the states irrespective of ratification by the States if the conclusion is drawn that they have acquired the status of customary rules of International law. These conventions contain the fundamental rules of humanitarian character from which no derogation is possible by any State. Following are the main features of these conventions- 1. Protection and Care of Wounded and Sick Persons: Geneva Convention (no. 1) stipulated

in detail the respect for, and the protection and care of sick and wounded persons who are members of armed forces in the field. Geneva Convention no. 2 laid down the similar protection and care to wounded, sick and shipwrecked members of the armed forces at sea. The following are important provisions in this regard – a) Sick and wounded persons of the armed forces in the field and at sea shall be respected,

protected and cared for by the belligerents in whose power they may be. Such a treatment shall be provided without making any discrimination founded on sex, race, nationality, religion, political opinions or any similar tests.

b) Any attempts upon their lives, or violence to their persons, are strictly prohibited. They shall not be murdered, exterminated or subjected to torture or to biological experiments.

c) They shall not wilfully be left without medical assistance and care.

d) Women shall be treated with all considerations due to their sex.

e) If a party to the conflict is compelled to abandon them to the enemy, so far as military exigencies permit, it shall leave behind a portion of medical personnel to assist in taking care of them, together with the necessary material.

Protocol II Additional to the Geneva Convention adopted in 1977 also provided under Article 10 that all wounded, sick and ship-wrecked persons shall be respected and protected. 2. Protection to Medical Units and Establishments, Materials and Vehicles: Mobile

medical units and fixed establishments of the medical service for providing facilities to sick and wounded persons must be respected and protected by the belligerents. Materials of mobile medical units of the armed forces which fall into the hands of the enemy shall be reserved for the care of the wounded and sick. Vehicles such as aircraft or means of transport equipped for the evacuation of the wounded and sick must be treated in the same way as mobile medical units. The Geneva Conventions no. I and II provide for a distinctive emblem and sign of the medical service of the armed forces.

3. Treatment of Dead Bodies: Protocol I to the Geneva Conventions of 1949 also provided that each party to a conflict permit teams to search for, identity and recover the dead from battlefield areas and the remains of the dead are to be respected maintained and marked.

 

 

4. Treatment of Prisoners of War: Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 lays down under Article 4 that certain categories of persons who have fallen into the power of the enemy shall be known as prisoners of war. They are-

Firstly, members of the armed forces of belligerents as well as members of military or volunteer corps forming part of such armed forces. Secondly, members of other military and other volunteer corps including those of organited resistance movements- (i) if they have a commander;

(ii) if they wear a distinct uniform;

(iii) if they carry arms openly, and

(iv) if they observe laws and customs of war.

Thirdly, non-combatant persons, i.e., civilian personnel such as correspondents, supply contractors, labour, cooks, barbers, engineers- provided they accompany the arms unit under authority. Fourthly, members of crews including masters, pilots and apprentices who do not benefit by more favourable treatment under any other provisions of International Law, and Fifthly, other inhabitants of a town who take up arms to resist the invading forces without having had time to form themselves into regular armed units- provided they carry arms openly and respect the laws and customs of war. The above implies that persons such as traitors, deserters, mercenaries and those members of the armed forces who at the commencement of hostilities are found within the territory of the enemy do not acquire the status of prisoners of war. The experiences of the Second World War again demonstrated the desirability of further revision of the Convention. This led to the adoption of a Geneva Convention (No.3) Relative to the Treatment of Prisoners of War. The Convention consists of 143 Articles and replaces the Convention of July 27, 1929. The Convention of 1949 applies to all cases of declared war, and to other armed conflicts which may occur between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply in those cases of armed conflict which are not of an international character. The above provisions of the Convention have made it clear that the status of prisoners of war may be acquired by a person not only in war but also in armed conflicts. The Convention provided that the detaining power has a number of duties to perform on humanitarian grounds which include the following - a) Human Treatment of Prisoners.

b) Maintenance of Prisoners.

c) Equality of Treatment.

 

 

d) Medical Facilities.

e) Quarter Facilities.

f) Canteens.

g) Campus.

h) Employment of Prisoners of War.

5. Protection of Civilian Population: The horrifying experiences of a long series of violence,

brutality and terror directed against the civilian population made it necessary to provide protection to the civilian persons in time of war. Article 27-33 of the Geneva Convention NO.4 which are applicable to persons both in the territory of the belligerents and in occupied territory lay down principles of a more general charter. It is laid down that civilians are entitled to respect of their persons their honour, their religious convictions and practices and their family rights. Subject to special protection on account of health, age and sex, they must be treated with the same consideration and without any adverse distinction on account of their race, origin or political opinion.

Protocol I Additional to the Geneva Conventions of August 12, 1949 relating to the protection of victims of international armed conflicts concluded in Geneva on June 8, 1977, contained a number of additional provisions relating to the treatment of civilian persons in all armed conflicts between two or more of the parties to the convention.

In addition to the protection of general population, the Geneva Convention NO.4 also made provisions for the treatment of firstly, alien enemies in belligerent's territory, secondly, the protection of sick and wounded civilians, thirdly the treatment of internees, and fourthly, the treatment of civilian population in occupied territory.

6. Limitations on Means and Methods of Use of Force: Additional Protocol I of 1977 in

order to make warfare less brutal and inhuman stated that rights of the parties to the conflict to adopt methods and means of warfare are not unlimited. The Protocol in this direction made a number of provisions which include the followings – a) Employment of weapons, projectiles and materials and methods of war fares which cause

superfluous injury or unnecessary sufferings to human beings are prohibited.

b) Employment of such methods or means of warfare which are intended or may be repeated to cause widespread, long term and severe damage to the natural environment are prohibited.

c) To kill, injure or capture an adversary by resort to perfidy is prohibited.

d) Attack against a person parachuting from an aircraft in distress is prohibited.

 

 

The United Nations Conference on Prohibitions or Restrictions on Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects adopted a Convention on October 10, 1981 of the same name commonly called Inhumane Weapons Convention. The Convention has a format of an 'Umbrella Treaty' under which specific agreements can be subsumed in the form of Protocols. The following four Protocols were attached to the Convention which are-

a) Protocol of Non-Detectable Fragments (Protocol I). The Protocol prohibited the use of weapons whose primary effect is to injure by fragments which in the human body escape detection by X-rays;

b) Protocol on Prohibitions or Restrictions on the Use of Mines, Body-Traps and other Devices (Protocol II). The Protocol was amended on May 3, 1996 by which the scope of the Convention was expanded to cover internal conflicts. The Protocol came into force on December 3, 1998. As on December 31, 2000, it had 57 States Parties.

c) Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol 11). The Protocol prohibited in all circumstances the making of the civilian population, as such the object of attack by incendiary weapons and restrict their use against military objects.

d) Protocol IV concluded on May 1996 prohibited the employment of laser weapons specially designed as their sole combat functions or one of their functions is to cause permanent blindness to the naked eyes and the transfer of such weapons. As on December 31, 2000, the protocol had 56 States Parties.

The Convention being an 'Umbrella Treaty' provides scope for the conclusion of additional specific arguments. The Convention along with Protocol /, II and III entered into force on December 3, 1983. As on June 15, 2000, the Convention with Protocols had 79 States Parties. The Protocol IV entered into force on July 30, 1998. 7. Law on Non-International Armed Conflict: Civil wars are amongst the most bitterly

fought of all armed conflicts, primarily because the adherents of the opposing side, whether military or civilian, tend to be seen as either traitors or oppressors, rather than as citizens of a hostile state doing their own duty. Civil war, civil strife and threshold internal conflicts are included in non-international armed conflicts. In recent years such conflicts have broken out or erupted in a number of states including Angola, Guinea, Bissau, Kosovo, Eritrea and Ethiopia.

All the four Geneva conventions of 1949 under Article 3 regulated the conduct of non-international armed conflicts by providing that, in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions

 

 

a) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons-

I. Violence to life and persons, in particular murder of all kinds, mutilation, cruel

treatment and torture;

II. Taking of hostages;

III. Outrages upon personal dignity, in particular humiliating and degrading treatment;

IV. The passing of- sentences and the carrying out executions without previous judgment pronounced by a regularly constituted Court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

V. The wounded and sick shall be collected and cared for. An important humanitarian body such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Additional Protocol No. II which was adopted in 1977 to reaffirm and develop the provisions of the Geneva Conventions of 1949 exclusively devoted to internal armed conflicts and made a number of provisions for such conflicts for the maintenance of peace among nations. Article 3 of the Additional Protocol No. II lays down that in the armed conflict occurring within the territory of one of the High Contracting Parties, each Party to the conflict shall treat all those persons humanely who have not been taking part in the hostilities. This rule shall also apply to the members of the armed forces who have laid down their arms and those who have been placed hors de combat by sickness, wounds, detentions or by any other reason without making any distinction on race, colour, religion, sex, birth or wealth. Article 3 also prohibited-

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel

treatment and torture; (b) outrages upon personal dignity, in particular humiliating and degrading treatment;

(c) passing of sentences and the carrying out of executions without previous judgement pronounced by a regular constituted court. Article 3 also provided that wounded and sick shall be collected and cared for and the important humanitarian body such as the International Committee of Red Cross may be permitted to offer its services to the parties to the conflict. The above provisions have made it clear that a Government is legally supposed to adhere to human rights standards in

 

 

attempting to manage its own nationals who have revolted and carried their rebellion to the level of internal armed conflict.

The Vienna Conference on Human Rights held in 1993 called upon States and all parties to armed conflicts strictly to observe international humanitarian law, as set forth in the Geneva Conventions of 1949 and other rules and protection of International Law as well as minimum standards for protection of human rights as laid down in international Conventions. But in the armed conflicts that have broken out or re-erupted in 1998-1999 in Angola, Guinea-Bissau, Kashmir, Kosovo and between Eritrea and Ethiopia one finds that serious violations of humanitarian law have taken place. Armed conflict that occurred between India and Pakistan in Kargil sector in May 1999 is an instance of the barbaric treatment which was given to the Indian soldiers by Pakistan. Application of Humanitarian Law in Nuclear War Nuclear weapons may be defined as any device which is capable of releasing nuclear energy in an uncontrolled manner and which has a group of characteristics that are appropriate for use for warlike purpose. The nuclear energy may be explosively released in two types of nuclear reactions-fission, (heavy-elements), and fusion, in which the nuclei of the lightest element (hydrogen) are squeed together at high temperatures and fuse to form helium nuclei. The nuclear weapons are accordingly classified as fission (or atomic) or fusion (or hydrogen or thermonuclear) bombs. The use of nuclear weapons may cause indiscriminate sufferings and destruction to mankind and civilization. The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a wide area. International Law in the past has not remained silent on the prohibition on the use of nuclear weapons. The use of some of these weapons has been expressly prohibited by treaties which are as follows-

1. Declaration of St. Petersburg of 1868.

2. First Hague Declaration of 1899.

3. Second Hague Convention of 1907.

4. Geneva Gas Protocol of 1925.

5. Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects [Convention on Inhuman Weapons (1981)].

6. Convention on the Prohibition of the development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (1993).

General Assembly of the United Nations in 1961, had adopted the Declaration on the Prohibition of the Use of Nuclear and Thermo-nuclear Weapons wherein it was declared that the use of nuclear and thermo-nuclear weapons would, in particular, cause indiscriminate sufferings and

 

 

destruction to mankind and civilization and, as such, is contrary to the rules of International Law and to the laws of humanity. It can be concluded that International Law does not lay down any express prohibition for the use of nuclear weapons, but rules of war restricting the means and modes of violence for injuring and killing the enemy, prohibits the use of nuclear weapons. Some of such rules are as follows-

1. Article 23(b) of the Hague Convention forbids the killing or wounding by treachery of individuals of the hostile nation or army.

2. It is forbidden to kill or wound an enemy, who has surrendered.

3. It is forbidden to declare that no quarter will be given.

4. The Destruction or seizure of the enemy's property is forbidden, unless such destruction

or seizure be imperatively demanded by the necessities of war.

5. Bombardment by 'any means whatsoever' of undefended towns, villages or dwellings is forbidden.

6. Attack or bombardment on non-combatant members of the armed forces who do not take part in the fighting, wounded or sick combatants and civilian persons is forbidden.

7. Territories of the neutral States are inviolable. Radioactive fall outs from the use of nuclear weapons, do not respect boundaries and therefore territories of the neutral States shall also be affected.

8. The principles of proportionality is also disregarded by the use of nuclear weapons. Reprisals, which are disapportionate to the provocation are prohibited. It would be difficult to regard this principle as consistent with the use of nuclear weapons in relation to an attack with conventional weapons.

The advisory opinion given by the International Court of Justice on the Legality of the Threat or the Use of Nuclear Weapons observed by way of introduction that neither international customary and treaty law contain any specific prescription authorising the threat or use of nuclear weapons or any other weapon in general, nor is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on specific authorisation. Further, the Court observed that the use of nuclear weapons is not specifically prohibited by the certain provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 dr by the Geneva Protocol of 1925. However, the Court stated that the 'principles and rules of humanitarian law apply to nuclear weapons' .... It is applicable to all international armed conflicts, whatever type of weapons night be used. The Court concluded that the use of 'nuclear weapons would be illegal in any circumstances owing to their inherent and total incompatibility with the law applicable in armed conflict.

 

 

Refugee Law Introduction: The refugees are persons deprived of the protection of the country of their nationality or where they have no nationality, of the protection of the country of their former habitual residence. The absence of "protection by the government of the State of nationality creates legal difficulties. Definition: The definition of the term "refugees" has been set out in Article 1 of the convention relating to the status of Refugees of July 28, 1951. According to Article 1 (A)(1) of this convention the term "refugee" applies to any person who has been considered a refugee under the arrangements of 12 May 1926 and 30 June 1928 or under the convention of 28 October 1933 and 10 February, 1938 the protocol of 14 September of 1939 or the constitution of the International Refugee Organisation8. Origin and Development of Refugee Law : The attention of international community has been focused on the need and protection of refugees since 1921, when the Council of the League of Nations decided to appoint a High Commissioner of Russian refugees. The mandate of the High Commissioner had included the following tasks-

1. To define the legal status of the refugees.

2. To organise their repatriation or their allocation to the various countries which might be able to receive them, and to find means 0f work for them.

3. To undertake relief work amongst them with the aid of philanthropic societies.

The mandate of the High Commissioner was extended to cover American Refugees in 1924 and to the Assyrian, Assyro-Choldean and Turkish Refugees in 1928. Apart from the appointment of the High Commissioner for Refugees, international instruments were also concluded providing for the definition of the legal status of the refugees, the creation of international agencies for the protection of refugees and for other relief measures. Most noteworthy were the Convention of 28 October 1933 relating to the Status of Refugees and the Convention of February 10, 1938, regarding to Status of Refugees from Germany. At the end of the Second World War, the United Nations was established Which, since its way inception, has focused it attention on the problems of refugees, "displaced persons, stateless persons and returnees. A number of measures were adopted to protect the human rights of these persons and to provide durable solutions for their problems. The General Assembly of he United Nations has established U.N. Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) in 1949 with a mandate to provide relief, education training, health and other service to Arab refugees from Palestine. Again in the same year, the General Assembly established the Office of the United Nations High Commissioner for Refugees from Palestine. A convention on the status of refugees was adopted on July 28, 1951 under the auspices of the United Nations. It is the most comprehensive Charter ever written on the plight of refugees. On

 

 

31 January 1967 a protocol relating to the status of refugees was adopted by the General Assembly, which came into force on 4 October 1967. Rights, Responsibilities and Protection of Refugees : Every refugee is under a duty to conform to the laws and regulations of the country is which he finds himself. Further he should also conform to the measures adopted by the country of his refuge for the maintenance of public order. At the same time, the State Parties to the Convention Relating to the Status of Refugees are under an obligation –

a. to apply the provisions of this convention to refugees without discrimination as to race, religion or country of origin;

b. to accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children;

c. to accord to refugees the same treatment as is accorded to aliens generally; d. to grant exemptions to the refugees from such exceptional measures which may be taken

against the person, property or interests of nationals of a foreign State solely on account of such nationality;

e. to recognise the continuity of residence. f. to give sympathetic consideration to the refugee seamen regularly serving as crew

members on board a ship flying the flag of a State Party to the present Convention. Rights, responsibilities and protection of refugees may be discussed under the following headings -

1. Juridical Status of Refugee: Juridical status of a refugee concerns primarily with his legal or juristic position with respect to his personal status, the status of his movable and immovable property, industrial property, right of association and access to courts.

2. Gainful Employment: Gainful Employment in which a refugee may be allowed to engage himself may be of three kinds, namely, wage-earning employment, self-employment and liberal professions.

3. Welfare of the Refugee: Welfare of the refugee includes provisions for rationing, housing, public education, public relief, labour legislation and social security.

4. Administrative Measures: Administrative measures deal with administrative assistance to refugees, freedom of movement, issue of identity papers and travel documents, applicability of fiscal charges to refugees, right of refugees to transfer their assets, provisions relating to refugees requesting asylum and assimilation and nationalization of refugees.

Refugees Unlawfully in the Country of Refugee: A refugee may, on account of well-founded fear of being persecute _, or reasons of race, religion, nationality, membership of a particular social group or political opinion, leave a territory where his life or freedom is so threatened' and enters into or is present without authorization in the territory of a State Party to the present Convention. In such cases no penalty will be imposed upon him, on

 

 

account of his illegal entry or presence provided he presents himself without delay to the authorities and shows good cause for his illegal entry or presence.

5. Executory and Transitory Provision : The State Parties to this Convention undertake to

co-operate with the Office of the United' Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions and will in particular facilitate its duty of supervising the application of the provisions of this Convention. It is one of the important functions of the Office of the High Commissioner to make reports to the competent organs of the United Nations concerning the implementation of this Convention Thus, in order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the States Parties undertake to provide them in the appropriate form with information and statistical data requested concerning – - the condition of refugees, - the implementation of this Convention, and - laws, regulations and decrees which are, or may hereafter be, in force relating to

refugees, The States Parties are required to communicate to the Secretary-General of the United Nations the laws and regulations which they may adopt to ensure the application of this Convention.

Settlement of Disputes: Any dispute between parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Courts of Justice at the request of anyone of the parties to the dispute. Internally Displaced Persons: Internally displaced persons are unable to cross borders and reach a country where they could receive the protection and assistance. In India, Kashmiri Brahimins are the example of internally displaced persons. They have left their home in Kashmir and moved to other places within the territory of India. There are in the world about 15 to 25 million persons who are internally displaced. The Commission on Human Rights has adopted a resolution on 5 March 1991. Under this resolution, the Secretary-Generally was requested to submit report to the Commission on Human Rights at its forty-eighth session on the internally displaced persons. Such report must be based on information furnished by the Governments, the specialised agencies, relevant United Nations Organs, regional and intergovernmental organisations, the International Committee of Red Cross and non-governmental organisations. So far as the protection of the human rights of the internally displaced persons is concerned the Governments, regional and inter governmental organisations, non-governmental organisations and the International Committee or Red Cross are providing material help to the internally displaced persons. Institutional Responses: The General Assembly, in order to meet the problems of refugees and displaced persons, has established following institutions of great significance-

 

 

1. United Nations Relief and Works Agency For Palestine Refugees in the Near East (UNRWA): (UNRWA) This Agency was established by the General Assembly in 1949 to look after the interests of Palestine refugees in Near East. Its mandate was extended in 1967 and 1982 to include humanitarian assistance, as far as practicable, on an emergency basis and as a temporary measure, to other displaced persons in serious need of immediate assistance as a result of the 1967 and subsequent hostilities. This agency consists of a Commissioner-General and 10 members to Advisory Commission.

2. Office of the United Nations High Commissioner for Refugees (UNHCR) : UNHCR was established on 3 December, 1949, by the General Assembly. It provides protection and assistance to refugees, displaced persons, stateless persons and internees. It advances the objectives of Article 14 of the Universal Declarations of Human Rights which runs as follows - a. Everyone has the right to seek and to enjoy in other countries asylum from persecution.

b. This right may not be invoked in the case of prosecutions genuinely arising from non-

political crimes or from acts contrary to the purposes and principles of the United Nations.

Organisation of the UNHCR: The High Commissioner is elected by the General Assembly on the nomination of the secretary-General. The terms of appointment of the High Commission are proposed by the secretary-General and approved by the General Assembly. The High Commissioner appoints, for the same term, a Deputy High Commissioner of a nationality other than his own. The High Commissioner also appoints staff of the Office of the High Commissioner who are responsible to him in the exercise of their functions. Such staff are chosen from persons devoted to the purposes of the Office of High Commissioner. The High Commissioner also, after consultation with the Governments of the countries of where there are significant refugees problems appoints representatives. Such representatives must be approved by the Governments of those countries in which they are appointed and subject to this condition the same representative may serve in more than one country. The Office of the High Commissioner is located in Geneva, Switzerland. Functions of the High Commissioners: The High Commissioner perform following functions- 1. The High Commissioner provides for the protection of refugees falling under the competence

of his office by-

a) Promoting the conclusion and ratification of international convention for the protection of refugees, supervising their application and proposing amendments thereto.

b) Promoting through special agreements with Governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection.

 

 

c) Assisting Governmental and private efforts to promote voluntary repatriation or assimilation within new national communities.

d) Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of States;

e) Endeavouring to obtain permission for refugees to transfer their assets and especially those necessary for their settlement.

f) Obtaining from Governments information c6ncerning the number and conditions of refugees in their territories and the laws and regulations concerning them.

g) Keeping in close touch with the Governments and Inter-Governmental organizations concerned.

h) Establishing contact in such manner as he may think best with private organizations dealing with refugee questions.

i) Facilitating the co-ordination of the efforts of private organisations concerned with the welfare of refugees.

2. The High Commissioner performs such additional activities, including repatriation and resettlement, as the General Assembly determines, within the limits of the resources placed at his disposal.

3. The High Commissioner administers any funds, pUblic or private, which he receives for assistance to refugees and distributes them among the private and, as appropriate, public agencies, which he deems best qualified to administer such assistance.

4. The High Commissioner reports annually to the General Assembly through the Economic

and Social Council. Such reports are considered as separate item on the agenda of the General Assembly. The High Commissioner is entitled to present his view before the General Assembly, the Economic and Social Council and their subsidiary bodies.

5. The High Commissioner invites the co-operation of the various speciaised agencies.

Executive Committee of the Programme of the United Nations High Commissioner for Refugees: Paragraph 4 of the Statue of the office of the United Nations High Commissioner for Refugees. The Economic and Social Council established an Advisory Committee on 10 September, 1951.

 

 

This Committee was replaced by the Executive Committee of the United Nations Refugee Fund and, thereafter, reconstituted on 30 April, 1958 as the Executive Committee of the Programme of the United nations High Commissioner for Refugees with the following mandates-

1. To give directions to the High Commissioner for the liquidation of he United nations Refugee Fund.

2. To advise the High Commissioner, at his request, in the exercise of his functions under the Statue of his Office.

3. To advise the High Commissioner as to whether it is appropriate for international assistal1ce to be provided through his office in order to help to solve specific refugee problems remaining unsolved after 31 December, 1958 or arising after that date.

4. To authorise the High Commissioner to make appeals for funds to enable him to solve the refugee problems referred to in para (c) above.

5. To approve projects for assistance to refugees coming within the scope of para (c) above.

6. To give directions to the High Commissioner for the use of the emergency fund. Legal Status of Refugees in India: In India, the refugees are entitled to the protection of their life and liberty under Article 21 of the Constitution which clearly states that "no person shall be deprived of his life or personal liberty except according to procedure established by law." The protection of life and liberty under Article 21 is guaranteed to citizens as well as to non-citizens. In National Human Rights Commission v. State of Arunachal Pradesh it was held by the Supreme Court that the State of Arunachal Pradesh was under constitutional obligation to protect and safeguard the life, health and well being of the chakmas. The fact of this case was that a large number of chakma migrants crossed over the borders of East Pakistan (now Bangladesh) in 1964 and entered into India. Most of them settled in Assam and Tripura and acquired Indian citizenship. However, the respective Governments of Assam and Tripura expressed their inability to rehabilitate them, therefore, some of them were moved to the State of Arunachal Pradesh and were settled there. An agitation was launched by the All Arunachal Pradesh Students Union to expel them out of State and threatened to resort to violence against them in case they were not expelled. The National Human Rights Commission approached the Supreme Court for appropriate directions. The State of Arunachal Pradesh was directed by the Court to take all measures necessary for ensuring the life and personal liberty of chakmas. Thus the position in India is that in the matters of protection to life and personal liberty refugees are treated at par with Indian citizens. Role of Judiciary There are three pillars of democracy i.e. the legislative, the executive and the judiciary. The role of the legislature is to frame the law, that of the executive is to implement the laws and the judiciary has to make sure that the law is enforced. The court gives final interpretation of the

 

 

law. The different way by which the judiciary is playing the role of a guardian for safeguarding the human rights in this country may be discussed under three heads-

1. Limiting the amending power of the parliament.

2. Widening the scope of enforcement of fundamental rights, and

3. Devising new ways of making justice accessible.

Right to Indian Constitutional Remedies (Article 32-35): Remedy to Enforcement of Fundamental Rights Article 32 provides that-

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in this part (i.e., part III Fundamental Rights) is guaranteed.

2. The Supreme Court shall have powers to issue directions or orders or writs including writs in the nature of habeas copus, mandamus prohibition, quo warranto and certiorari whichever may be appropriate, for the enforcement of any of the rights conferred by this part.

3. Without prejudice to the powers conferred on the Supreme Court by the clauses (1) and (2) Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)

4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this constitution.

In case of violation of these rights, the Supreme Court can be moved under Article 32. A High Court having its territorial jurisdiction may also be moved in case of breaches of fundamental rights, besides the breaches of legal rights, under Article 226 of the Constitution. In the case of PIL there is no need to follow the formal procedures for filing the petition. Even a grievance written in a post card may be taken by the Court if there is a prima facie case. So the role of the court in protection and promotion of human rights need not be over emphasized. Being the enforcement organ of the government, it indeed plays an important role in realizing the basic human rights of every individual. The judiciary has played the role of guardian of human rights thereby giving meaning to such rights which otherwise would have remained rhetoric. IMPORTANT QUESTIONS Q.1 What do you understand by International Humanitarian Law? Q.2 Trace the origin and development of Humanitarian Law. Q.3 Define International Humanitarian Law. Elaborate its purpose and major sources. 0.4

 

 

Q.4. Discuss the Charter of Humanitarian Law. RECOMMENDED READINGS 1. Dr. H.O. Agarwal : "Human Rights"

2. Tandan and Dr. V. K. Anand : "International Law and Human Rights"

3. Dr. Kapoor : "International Law and Human Rights"

4. U.C. Chandra : "Human Rights"

5. A.N. Sen : "Human Rights"

6. V.K. Anand : "Human Rights"