The Central Law College

HUMAN RIGHTS LAW (FA10A) LECTURE NOTES

PREPARED BY S.V VEERICHETTY

UNIT I
HUMAN RIGHTS ORIGIN AND DEVELOPMENT
INTRODUCTION
Rights that inhere in a human being by virtue of his birth as a human being are human
rights. Human rights do not depend for their existence on the legal and moral practices of
different communities.It is not the particular privilege conferred or granted upon a man by
the State but something that due to him or owned by him by reason of his birth. Human
Rights are based on mankind's increasing demand for a civilized life in which the inherent
dignity of each human being is well respected and protected. 98
.These rights are essential for the spiritual, physical and moral development of the
individu0000000000000000000000000000000al. They are associated with the
dignity of the individual and it is the enjoyment of these rights that makes a human being
worthy of human dignity.
CONCEPT OF HUMAN RIGHTS
Human rights and fundamental freedoms allow us to develop fully and use our human
qualities, our intelligence, our talents, and our conscience and to satisfy our spiritual and
other

needs. They are based on mankind’s increasing demand for a life in which the
inherentdignity and worth of each human being will receive respect and protection. The
denial ofhuman rights and fundamental freedoms not only is an individual and personal
tragedy butalso creates conditions of social and political unrest sowing the seeds of violence
andconflicts within and between societies and Nations.
The concept of human right is based on the assumption that human beings are
bornequal in dignity and rights. These are moral claims which are inalienable and inherent in
allhuman beings by virtue of the member of the humanity alone. Today these claims
arearticulated and formulated and then called as human rights.
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All human beings are born free and equal in dignity and rights. But man has made
himnot equal in many ways. Some were made privileged and some were not. Oppression
andslavery were there. It made him hundreds of years of toil and struggle to get legal
protectionof their basic human rights. Various laws were enacted for the protection of the
rightsrelating to life, liberty, equality and dignity of the individual. They are made and
unmade onthe crucible of experience and through irreversible process of human struggle for
freedom.
Equal dignity of all persons is the central concept of all human rights. These rights
havebeen designated to be universal in application, inalienable in exercise and inherent to
allpersons. Human beings are entitled to some basic and natural rights otherwise their
lifewould be meaningless.
Human Rights are those minimal rights which are available to every human
beingwithout distinction of language, religion, caste, nationality, sex, social and
economicconditions of the society. Human rights are on the increasing demands of the
mankind fora life in which the inherent dignity and worth of each human being will receive
respect andprotection. These rights enable individuals to fully use their intelligence, talents
andconscience to satisfy spiritual and other needs.
MEANINGOF HUMAN RIGHTS
A right is a multi-dimensional dynamic concept, embracing almost all areas of life
like social, cultural economic and political fields. According to Prof. H.J. Laski, “Rights
arethose conditions of social life, without which, no man can be his best self”. Prof
Greendefines “a right as a power, claimed and recognized as contributory to common
good”.Human rights are referred as a fundamental rights, basic rights, inherent right,
naturalrights and birth rights. Human rights are rights of exceptional importance and belong
toevery individual by virtue of being a human. These rights are necessary to ensure
thedignity of every person as a human being irrespective of race, religion, language, caste,
sexor any other reason. The concept of Human right is based on the notion of equality
ofhuman being.

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The features of human rights are they are universal incontrovertible and subjective.
Human rights are universal means they belong to each of us regardless of ethnicity,
race,gender, sexuality, age, religion, political conviction or type of government. They
areincontrovertible means they are absolute and innate. Human rights are subjective
meansthey are properties of individual subjects who possess them because of their capacity
ofrationality, agency and autonomy. The notion of universality has been criticized for
itsblindness towards the issues of cultural differences. When human rights are guaranteed by
awritten constitution they are known as fundamental rights because a written constitution
isthe fundamental law of the state.

DEFINITIONSOF HUMAN RIGHTS

The United Nations Centre for Human Rights defines Human Rights as “those
rightswhich are inherent in our nature and without which we cannot live as human beings”
The Universal Declaration of Human Rights which adopted on Dec.10th 1948,
defineshuman rights as “rights derived from the inherent dignity of human person”
The Protection of Human Rights Act 1993 states” Human Right means rights relating
tolife liberty, equality and dignity of the individuals guaranteed by the constitution
orembodied in the International Covenants and enforceable by courts in India.”
D.D Basu defined human rights “are those minimum rights which every individual
musthave against state or other public authority by virtue of being a member of human
family,irrespective of any other consideration”. He also stated that the concept of human
right is asold as the ancient doctrine of natural rights funded on natural law, the expression
human isof recent origin.
Dr. Upendra Baxi while attempting to describe human rights says that for the first
timein recent history, we move from conceptions of rights as resources for individuals
againststate power to a conception of human rights as species rights as well. M.C.
Bhandareconsiders that the urge for the protection of the human rights emanated out of the
grossviolence proceeding during the two World Wars of the century.

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Justice M.H. Beg, former Chief Justice of India, while defining human rights stated
thathuman rights imply justice, equality and freedom from arbitrary and
discriminatorytreatment; these cannot be subjected to coercion for holding particular
religious beliefs.
P.P.Rao defines Human rights as the inherent dignity and inalienable rights of
allmembers of human family, recognizing them as their foundation of freedom, justice
andpeace in the world.
Justice Nagendra Singh opined that respect for the human personality and its absolute
worth, regardless of colour, sex, and race are the very foundation of human rights. These
rightsare essential for the adequate development of the human personality and for
humanhappiness and progress.
According to S. Kim, human rights are "claims and demands essential to the
protectionof human life and the enhancement of human dignity, and should therefore enjoy
full socialand political sanctions".
Subhash C Kashyap opined that human rights are those “fundamental rights to
whichevery man inhabiting any part of the world should be deemed entitled by virtue of
havingbeen born a human being”.
Milne defined “human rights are simply what every human being owes to every
otherhuman being and as such represent universal moral obligation”.
According to Nickel, human rights are norms which are definite, high priority
universaland existing and valid independently of recognition or implementation in the
customs orlegal system of particular countries.
Justice Ranganath Misra, the first chairman of the National Human Rights
Commission ofIndia, has observed that “it is an obligation which all of us have to perform.
Man, whereverhe lives, whatever religion he professes, whatever food he takes, is a member
of one family.All of us must learn to live like a member of one family. The whole world is
one family.We will be able to develop the culture of human rights. In the absence of Human
Rights,individuals and families are disintegrating in the modern era. It is a challenge to

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humanprogress. We should all be prepared and united to face the challenge of the
indiscipline.
Everyone must realize the is prescribed by law is not for next man, or the man to
follow, but for you.
CHARACTERISTICS OF HUMAN RIGHTS
1. Human rights represent claims which individual or groups make on the society.
2. These rights are inalienable and human beings are entitled to them by birth.
3. These rights are the basic minimum requirement for survival of human beings
insociety.
4. It is universal in character but not absolute.
5. It is protected and enforced by the authority of the state.
6. These rights are meant to uphold human dignity.
7. These rights are essential and necessary for the development of the people.
8. It is irrevocable and equal to all
9. These rights are natural rights based on the law of nature.
10. Human rights are dynamic and evolutionary in nature.
11. These rights are protected and enforced by the authority of society or state at
alllevels.
IMPORTANCE OF HUMAN RIGHTS
Human rights are, in the first instance, moral rights and they derive their strength
onethical grounds. Human rights are inconceivable without the primary right of freedom
ofthought and expression which recognizes dignity and individuality of every human
beingsand derives its justifiability from moral and ethical considerations.
It has been appreciated that without human right, humanity cannot progress. That is
why,over the past sixty years, the individual human being has gradually acquired an
increasingnumber of internationally recognized human rights and obligations. During and at
the timeof the two World Wars, we witnessed the deprivation of the human values and rights.

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However after the Second World War, many nations became independent and they
couldprotect the rights and the liberty of the people. They legalized the human rights
byincorporating the provisions in the constitution and through proper legislation.
The UN Charter very clearly specified the importance of the human rights. The UNCharter
has declared that the purpose of United Nation is “to achieve international cooperationin
solving international problems of an economic, social, cultural and humanitarian character
and in promoting and encouraging respect for human rights and for fundamental freedom for
all without distinction as to race, sex, language or religion”. Universal Declaration of Human
Rights stated the importance of the human rights in Article 1, which declares, “All human
beings are born free and equal in dignity and rights”.
The rights and freedom contained in the declaration were regarded as being available
to all without distinction of race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
Jusice Fathima Beevi has observed that the concept of human right has assumed
importance globally during the past few decades and has international significance as every
country is subject to international scrutiny by the world body which indicts member states for
violations.
Justice P.N. Bhagwati, the former Chief Justice of India , is of the view that
fundamental rights are of great importance for individual freedom, but the fundamental rights
are a very minimal set of rights and therefore human rights , which are derived from the
inherent dignity of the human person and cover every aspect of and not just a small number
of preferred freedom against the state, have tremendous significances Human Right s
Conference called by the United Nations General Assembly in 1968 declared that since
human rights and fundamental freedoms are indivisible, the full realization of civil and
political rights without the enjoyment of economic , social and cultural rights is impossible.
The core of human right include:
1. The right to respect human right and dignity.
2. The prohibition of selfdom, slavery, bonded labour and torture.

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3. The protection from the arbitrary deprivation of liberty

4. The prohibition of discrimination on racial, religious, linguistic or similar reasons.
In our constitution the political and civil rights are termed as fundamental rights
andenshrined in the part third of the constitution. They are now six categories of rights. 1.
Rightto equality 2. Right to freedom 3. Right to freedom of religion 4. Cultural and
Educational Rights 5. Right against exploitation 6. Right to constitutional remedies. The
social and economic rights are included in the directive principles of state policy.
WHAT ARE HUMAN RIGHTS?
Human Rights are those minimal rights which every individual must have against the
state or other public authority by virtue of his being a member of human family, irrespective
of any other consideration.
When human rights are guaranteed by a written Constitution they are called
Fundamental Rights because a written Constitution in the fundamental law of a state.
Human rights are not created by any legislation. They assume the portion of natural
rights. The concept of human right is as old as ancient doctrine of natural rights founded on
natural law; nonetheless, the expression of human rights emerged after the end of the Second
World War.
Human rights are those rights which are inherent in nature and without which people
cannot live as human beings. Human Rights and fundamental freedoms allow people to fully
develop their intelligence, their dealings and to conceive and to satisfy their spiritual and
other things.
Fundamental rights are the name for what have been traditionally known as natura
lrights.
Natural Rights Human Rights Fundamental Rights
Human rights are rights inherent to all human beings, whatever our nationality, place
of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We
are all equally entitled to our human rights without discrimination. These rights are all
interrelated, interdependent and indivisible.

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Universal human rights are often expressed and guaranteed by law, in the forms of
treaties, customary international law, general principles and other sources of international
law. International human rights law lays down obligations of Governments to act in certain
ways or to refrain from certain acts, in order topromote and protect human rights and
fundamental freedoms of individuals or groups.
1. Universal and inalienable
The principle of universality of human rights is the cornerstone of international human
rights law. This principle, as first emphasized in the Universal Declaration on Human Rights
in 1948, has been reiterated in numerous international human rights conventions,
declarations, and resolutions. The 1993 Vienna World Conference on Human Rights, for
example, noted that it is the duty of States to promote and protect all human rights and
fundamental freedoms, regardless of their political, economic and cultural systems
All States have ratified at least one, and 80% of States have ratified four or more, of the core
human rights treaties, reflecting consent of States which creates legal obligations for them
and giving concrete expression to universality. Some fundamental human rights norms enjoy
universal protection by customary international law across all boundaries and protection by
customary international law across all boundaries and civilizations. Human rights are
inalienable. They should not be taken away, except in specific situations and according to
due process. For example, the right to liberty may be restricted if a person is found guilty of a
crime by a court of law.
2. Interdependent and indivisible
All human rights are indivisible, whether they are civil and political rights, such as
the right to life, equality before the law and freedom of expression; economic, social and
cultural rights, such as the rights to work, social security and education, or collective rights,
such as the rights to development and self-determination, are indivisible, interrelated and
interdependent. The improvement of one right facilitates advancement of the others.
Likewise, the deprivation of one right adversely affects the others.
3. Equal and non-discriminatory
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Non-discrimination is a cross-cutting principle in international human rights law. The

principle is present in all the major human rights treaties and provides the central theme of
some of international human rights conventions such as the International Convention on the
Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of
All Forms of Discrimination against Women.
The principle applies to everyone in relation to all human rights and freedoms and it
prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race,
colour and so on. The principle of non-discrimination is complemented by the principle of
equality, as stated in Article 1 of the Universal Declaration of Human Rights: All human
beings are born free and equal in dignity and rights.
4. Both rights and obligations
Human rights entail both rights and obligations. States assume obligations and duties under
international law to respect, to protect and to fulfill human rights. The obligation to respect
means that States must refrain from interfering with or curtailing the enjoyment of human
rights.
The obligation to protect requires States to protect individuals and groups against
human rights abuses. The obligation to fulfill means that States must take positive action to
facilitate the enjoyment of basic human rights. At the individual level, while we are entitled
our human rights, we should also respect the human rights and others.
ORIGIN AND DEVELOPMENT OF HUMAN RIGHTS
The concept of human rights as one knows it today has a very recent history or a very
old history, depending on how one looks at it. Belief in moral universals has historically been
the domain of philosophy and religion, reflected in every system of thought ever recorded,
but belief that governments are obligated to respect the fundamental equality and autonomy
of all individuals is an idea that just began to achieve currency in the 20th Century and is still
in its infancy today.
The term 'human rights' came into usage after the Second World War particularly
with the founding of the United Nations in 1945. It replaced the phrase natural rights because

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it became a matter of great controversy and the later phrase the rights of man was not
understood universally to include the rights of women.
2350 BCE: The Praise Poem of Urukagina: One of the first acknowledged
champions of human rights was the local Mesopotamian Governor named Urukagina, who
weeded out corruption in his local Government, regulated slavery and issued decrees
protecting widows, orphans and the poor.
539 BCE: The Cyrus Cylinder: Cyrus the Great, ruler of the Persian Empire, was
such aliberating force in the ancient world that the people of Israel described him as a
messiah. His reforms allowed local cultures to flourish, protected religious freedom and
diversity, and allowed for more localized Government control.
231 BCE: The Edicts of Ashoka: When the Indian King Ashoka converted to
Buddhism, he preached nonviolence and issued a series of edicts, carved on 33 pillars
throughout his empire, protecting the rights of the poor and vulnerable.
AD 161: The Institute of Gaius: Gaius‟ magnum opus, the Institutes, formed the basis
of legal education and jurisprudence for much of the Roman Empire‟s later history. It was
Gaius who drew a distinction between jus civile, or Roman laws, and jus gentium, the laws of
nations, which regulated interactions between Romans and non Romans. His principle of
jusgentium assumed that some legal concepts could be universally applicable, a fundamental
principle of human rights law.
622: The Charter of Medina: Muhammad was quite a libertarian by the Standards of
his day, protecting religious freedom, granting women greater autonomy, and ending
ethnicsegregation policies. For centuries to come, Islam would occupy the same role that
secularprogressivism occupies today: as a protector of minority opinions (such as Greek
paganism;the survival of Greco-Roman texts can largely be traced to Islamic protection), a
promoter ofscience, and a symbol of pluralism and modernity.
1100: The Charter of Liberties:While the Coronation Charter of King Henry I
(sometimescalled the Character of Liberties) is referred to as a predecessor to the Magna
Carta of 1215,it’s really more of guarantee of royal good behavior than anything we would
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recognize as ahuman rights agreement. Still, it set the precedent of an English monarch
voluntarilyrestricting his own power.
1215: The Magna Carta:The Magna Carta of 1215 established basic due process rights
fornobles, limited the power of the throne, and formed the basis of bills of rights for centuries
to come. While it wasn’t particularly libertarian, and (like its predecessor, the
CoronationCharter) was more about rights voluntarily granted than rights universally owed, it
remainscentral to the development of the British and American Criminal justice systems.
The Magna Carta is considered as the first charter of liberty. It was signed by the king
John of England in 1215. The main theme of the Magna Carta was protection against
thearbitrary acts of the king. The 63 clauses of the charter guaranteed certain basic civil
andlegal rights to citizens and protected the barons from unjust taxes. The king was
compelledto grant the charter, because the barons refused to pay heavy taxes unless the king
signedthe charter. In reality, the Magna Carta was merely a compromise of the distribution
ofpowers between king and his nobles. It gave certain concessions (not rights as
weunderstand them today), to clergy, landlords and nobles and consequently restricted
thepowers of the king to the extent of those concessions were concerned.
1689: The English Bill of Rights:The English Bill of Rights of 1689 was the most
advanceddocument of its kind at the time, guaranteeing free speech in parliament, the right to
beararms, the right to petition leaders, and certain due process rights.
The Bill of Rights was signed in England in 1689, after the Glorious Revolution of
1688.After the Glorious Revolution, the power of the king was reduced and the
Britishparliament declared its supremacy over the crown in clear terms. Soon after the
coronationof William and Marry; the new rulers after revolution, summoned the
conventionparliament, accepted the declaration of the rights and passed it into law in the
form of the“Bill of Rights”. The English Bill of Rights declared that the king has no
overridingauthority. Principles like Limited monarchy and parliamentary supremacy etc. was
declaredduring that period. The Bill of Rights states that:-
1. The King of England should be an Anglican;

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2. The king should not exercise suspending or dispending power;

3. No standing Army should be maintained without the consent of the parliament;
4. No taxation without the consent of the parliament;
5. Parliament is the sole authority to decide who should rule England;
6. The people should have the right to send petition to the king;
7. Annual grants were to be given to the king by the parliament;
8. Arbitrary courts are to be abolished;
9. Parliament was to be freely elected and the members were to have freedom of
speech.The toleration Act passed by the parliament granted religious freedom to the people.
1789: The U.S. Bill of Rights:The U.S. Bill of Rights didn’t really have teeth until the
U.SSupreme Court interpreted the Fourteenth amendment as extending its rights to the states
in1925, but even as an unenforceable statement of principles it was top-notch by 18th-
centurystandards. Our civil liberties as Americans depend on it to this day.
The first ten amendments of the American constitution constitute the American Bill
ofrights. James Madison proposed as many as twelve amendments in the form of a Bill
ofRights in 1791. Ten of these were ratified by the State legislatures. These ten
constitutionalamendments came to be known as the Bill of Rights in America. The
constitutionalsettlements in the US and the attached Bill of Rights provided a model for the
protection ofhuman rights. After 1791 many other amendments were also made in the
constitution of
America.
Followings are the important amendments:-
The first amendment provides freedom of religion, freedom of press, freedom
ofexpression and the rights of assembly. The fourth amendment provides protection
ofindividual against unreasonable search and seizure. The fifth establishes the rue against
theself-incrimination and the right to due process of law.
After that, later on other amendments also made in the constitution, in this respect.
Thethirteenth amendment, adopted after the civil war, abolishes the practice of

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slavery.Fifteenth amendment (1870) grants the rights to vote to racial minorities.

Nineteenthamendment (1920), extended the right to vote to women. By 26th amendment
(1971) rightto vote at 18 years of age and by 27th amendment (1972), the provision of equal
rights andnon-denial or non-abridgement of equality of rights on account of sex is included.
It isworth that no rights ever been removed or abridged by the Congress.
1948: The Universal Declaration of Human Rights:World War II left the world
weary offascism in all forms, and the 1948 Universal Declaration of Human rights – drafted
largely byEleanor Roosevelt – addressed the Axis authoritarian horrors by describing a vision
ofUniversal human rights that, to this day.
AMERICAN REVOLUTION
American Revolution originated in the colonial revolt of 1763. 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 Right of 1689,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 into 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.
FRENCH REVOLUTION
The French Revolution was based upon those principles which were set in motion by
the English and American Revolution. It differed mainly in that it wasbasically the result of
economic and social inequalities and injustices of the French ancient regime. These
inequalities were conspicuous not only among the third Estate (lower classes) but also in the
First Estate (clergy) and in the second Estate (nobility).

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It had caused the greatest amount of concern among the writers,who were apparently
influenced by the teachings of Rousseau. They enthusiastically claimed that it marked the
dawn of new age for the mankind in general and believed in the prospect of right reason and
natural and imprescriptibly right to life, liberty and the pursuit of happiness. The government,
in their opinion, must preserve and safeguard these rights and if it fails to do so it has no right
to remain in existence
However, it was not the writers or philosophers who had influenced the course of
events but it was the convening of the French Estates General which produced the desired
result. As a matter of fact, it was on 17th June, 1789, when Third Estate in defiance of Louis
XVI proclaimed itself the National Assembly and three days later they took the famous the
Tennis Court Oath never to separate…. until the Constitution of the kingdom shall be
established. It was joined by more than half of the clerical deputies and nobles.
The National Assembly thus established was, evidently, dependent on the consent of
common people for its authority and not on the royal prerogatives. The members of the
National Assembly although worked under strains and restrictions but their achievement was
nonetheless of great significance.
They completed their work almost by the end of spring of 1791. A list of inalienable
rights of free citizens was prepared which was proclaimed as the Declaration of the Rights of
Man and of the Citizen. In it the philosophicalteachings of Rousseau permeated to its full
extent. This document was of the rank of the English Magna Charta and the Bill of Rights in
the Constitution of the United States of America.
The concept of Natural Law was considered during the middle Ages in the works of
the Christian theologians, in the form of a belief in a law of God, above all human laws. St.
Augustine carried out the principle further and said that a law which violated justice was in
principle invalid. St. Thomas Aquinas also noted the importance of Natural Law and defined
this concept as the participation in the eternal law of the mind of a rational creature. The state
is subject to that higher law which determines the relation of the individual to the state.

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He further stated that the justification of the state is in its service to the individual; a
king who is unfaithful to his duty forfeits his claim to obedience.This idea led to the
establishment of doctrine of natural rights and by the end of Middle Ages the concept of
natural rights of man became well established. All this leads to the formation of right to
revolt against a tyrannical ruler. According to Jean Bodin, Tyrannical Monarch is one who
violates the freedom of his subjects, ―Trampling the laws of Nature beneath his feet.
In middle Ages, numbers of acts were enacted to show the superiority of Natural Law
and Natural Rights. The principle of the Habeas Corpus Acts latent in the 39th Clause of
Magna Carta was acknowledged already in 1188 by Alfonso IX at the Certes of Leon. The
Great Charter of the Liberties of England or the Magna Carta of 1215 was imposed in King
John by the Prelates, Earls and Barons of his realm after his defeat by the king of France in
1214.
Thereafter the French Revolution also was based on the same principles which
wereset in motion by the English and American Revolutions.
The French Revolution was the result of economic and social inequalities and
injusticesof he Ancient regime of French.
The message given by the French Revolution spread in throughout Europe like the
fireof jungle, or forest fire. This Declaration of liberty and human right proved to be a
milestonein the development of Human Rights. It was more powerful than the great army of
Napoleon.
After the recognition of the French Declaration, the Western and Eastern
Europeancountries, Soviet Union of Russia and Asian and some other countries of the world
alsorecognised human rights in their Constitutions.
The rights of the 18th and 19th centuries can be termed as ‘classic’ rights (later
termedas civil and political rights), relating to the freedom of the individual and were
incorporatedin many national constitutions created at this time, along with other roles for
Governmentsin the fields of employment, education, health and welfare - as social
rights(termed associal, economic and cultural rights).

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It is interesting to note here that, the social rights were first embodied in
internationalregulations. The International Labour Organisation (ILO) was founded in 1919
and first laiddown various labour regulations.
At the end of the First World War of 1919, some attempts were made on liberal
levelfavoring the common man. The Treaty of Versailles tended to promote and
universalizehuman rights thought it resulted in no success. The Institute of International Law,
thougha private organization, was formed, which initiated the measures to study and
formulatethe principles of human rights and their formation as Code of Universal application,
whichwas merely a vision of the expectations and not a reality.
The tremendous atrocities of the Second World War marked the start of the
current‘era of human rights’, in contrast to the sovereignty principle, that it was up to the
sovereignstate to determine how to treat its citizens.The Proclamation of the Right of Man
as issued in 1929 by the Institute of Internationallaw contained the principles for acceptance
as Rules of Law by the States.
UNIVERSALISATION OF HUMAN RIGHTS
As a matter of fact the Human Rights were universalised after the end of the
SecondWorld War of 1939 in 1942. President Roosevelt of U.S.A. in his message on 6th
January,1941 declared four fundamental freedoms of human beings. These are (1) freedom
ofspeech and expression, (2) freedom of every person to worship god in his own way,
(3)freedom from want, and (4) freedom from fear.
Both the World Wars of 1919 and 1939 inspired the awakening to the values of
humanlife. The United Nations Charter is pervaded by the deep attachment of human rights.
The aim of the Charter is to save the humanity for the scourge of Wars and the
completedevelopment of human personality, his liberties and scope for the same.
PART-III THE HISTORY AND DEVELOPMENT OF INTERNATIONAL HUMAN
RIGHTSLAW
The name “United Nations”, coined by United States President Franklin D.
Roosevelt,was first used in the “Declaration by United Nations” of 1 January 1942, during

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the SecondWorld War, when representatives of 26 nations pledged their governments to

continuefighting together against the Axis Powers.States first established international
organizations to cooperate on specific matters.The International Telecommunication
Union was founded in 1865 as the InternationalTelegraph Union, and the Universal
Postal Union was established in 1874. Both arenow United Nations specialized agencies.In
1899, the first International Peace Conference was held in The Hague to elaborateinstruments
for settling crises peacefully, preventing wars and codifying rules of warfare. Itadopted the
Convention for the Pacific Settlement of International Disputes and establishedthe
Permanent Court of Arbitration, which began work in 1902. The forerunner ofthe United
Nations was the League of Nations, an organization conceived in similar
circumstancesduring the First World War, and established in 1919 under the Treaty
ofVersailles “to promote international cooperation and to achieve peace and security.”
TheInternational Labour Organization was also created under the Treaty of Versailles as
anaffiliated agency of the League. The League of Nations ceased its activities after failing
toprevent the Second World War.
In 1945, representatives of 50 countries met in San Francisco at the United Nations
Conferenceon International Organization to draw up the United Nations Charter.The
UnitedNations officially came into existence on 24 October 1945, when the Charter had
beenratified by China, France, the Soviet Union, the United Kingdom, the United States and
amajority of other signatories.
The Preamble of the Charter declared its object “to reaffirm faith in fundamental
humanrights”. The first concrete step of formulating various human rights was taken by the
United Nations General Assembly by adopting the Universal Declaration of Human Rightsin
1948.Charter of the United Nations placed human rights firmly within the sphere of
internationallaw on 26 June 1948. All of the UN member countries agreed to take certain
measures toprotect and promote human rights, as can be seen by a close examination of the
UNCharter.

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In 1946, the UN Commission on Human Rights was established and in less than
twoyears it had drafted the Universal Declaration of Human Rights (UDHR) which was
adoptedby the UN General Assembly) in 1948.Human rights are abstract concepts with
practical consequences. They are rightsthat international institutions such as the United
Nations have declared that all human beingspossess, simply by virtue of being human.
Human rights are based on respect for thedignity and worth of all human persons and seek to
ensure both freedom from fear andfreedom from want. Rooted in ethical principles and
usually inscribed in a country's constitutionaland legal framework, they are essential to the
well-being of every human being.
THE ATLANTIC CHARTER
The freedom concept of the then American president Roosevelt reached in to
somemore concrete form in the Atlantic charter. The then president of the United States
Franklin
D. Roosevelt and the Prime Minister of Britain Winston Churchill met at the Atlantic sea ina
ship and discussed about the future world and issued a joint declaration on august 1941. Itis
known as the Atlantic Charter. It was agreed among other things that “they respect theright of
all people to choose the form of government under which they will live; and theywish to see
sovereign rights and self-government restored to those who have been forcefullydeprived of
them”
After the final destruction of the Nazi tyranny, “they hope to see established a
peacewhich will afford to all nations the means of dwelling in safety within their own
boundaries,and which will afford assurance that all men in all the lands may live out their
lives infreedom from fear and freedom from wants”.
Another important landmark was the UN declaration in January 1, 1942. The
UNdeclaration clearly mentioned that “complete victory over their enemies was essential
todefend life, liberty, independence, religious freedom and to preserve human rights
andjustice in their own land as well as other land”. This declaration was further supported
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itsPhiladelphia declaration. In 1945, at Yalta the great powers again issued a

declarationsupporting UN declaration of 1942, Jan1. At Sanfrancisco Conference of United
Nations in1945, the charter included provisions of the human rights for the first time.
The UNO came into existence on 24th October1945. The purpose of the United
Nation isto bring all nations of the world together to work for peace and development, based
on theprinciples of justice, human dignity and the well-being of the people. In the preamble
of thecharter it is stated that it “reaffirm faith in fundamental human rights, in the dignity
andworth of human person, in the equal rights of man and women and of nations large
andsmall”
The purpose of the UN was declared in article 1of the Charter. It says
“……..promotingand encouraging respect for human rights and for fundamental freedom for
all withoutdistinction as to race, sex, language or religion”. In furtherance of this objective of
securinghuman rights the UN General Assembly adopted the Universal Declaration of
HumanRights on 10th December 1948. It set up a Global standard for human rights that
every stateshould grant to men and women all over the world.
The UDHR was not in the nature of a binding treaty. The UN therefore took steps
fordrafting covenants relating to human rights that would create binding obligations:
Twoseparate covenants were created. They are:-
1. International Covenant on Civil and political Rights (ICCPR)
2. International Covenant on Economic, Social and Cultural Rights (ICESCR)
ICCPR contains negative rights. These rights restrict or prohibit the state from
abridgingor taking away certain rights. These rights in here in every human being eg:- right
tofreedom speech, belief, assembly, right to personal freedom, right to fair legal
procedureetc.
ICESCR enumerates positive rights. These rights expect and can take shape only
whenthe state takes some positive action .They cannot be realized in a day. They can
materializegradually depending on the action taken by the state. Examples are right to social

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security,to health and education. For conferring’s these rights state has to create an
infrastructureand a machinery to implement. It requires positive action from the state.
In the UN, there were considerable differences in viewpoints among the members, on
theinclusion of positive rights. Therefore the rights were split in two covenants ICCPR
andICESCR. Draft of these two was presented to the General Assembly for discussion in
1954and was adopted in 1966. The ICCPR entered force on 23rd march 1976. Those
stateswhich have ratified it are bound by it.
It is noteworthy that our neighbors China, Myanmar and Pakistan are not state parties
tothe covenant.
The ICESR was adopted by the General Assembly on 16th December 1966and came
in toforce on 3rd January 1976. This covenant contains positive rights requiring positive
actionof national governments. A number of states have made Reservation and
interpretativedeclarations in respect to this covenant. Belgium has interpreted that it does not
imply thatthe foreigners have the same rights as the nationals. Egypt accepts the covenant to
theextent it does not conflict with Islamic LawIndia understands that the right of self-
determination applies only to people under foreigndomination and not to sovereign nation
states. Other clauses are to be read in the context ofthe constitution of India.
The USA signed the covenant in 1979 but has not ratified it. Therefore it is not bound
by it.Successive presidents from Carter onwards regarded these rights as merely desirable
socialgoals and so they cannot be subject of binding treaties.
Rights contained in the ICCPR.
1 .Right to life
2 .Right of self determination
3. Right to liberty and security.
4. Freedom from torture or cruel, inhuman or degrading nature of Punishment
5. Freedom from slavery and servitude.
6. Right to liberty of movement.
7. Right to fair trial.

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8. Freedom of thought conscience and religion

9. Freedom from arbitrary or unlawful interference with privacy, family, home
orcorrespondence.
10. Right to religion as a person before the law.
11. Right of peaceful assembly.
12. Right to freedom of association and expression.
13. Right to equality before the law and equal protection of law
14. Right to marry and found a family.
15. Right of detained person to be treated with humanity
16. Freedom from imprisonment for debt
17. Freedom of aliens from expulsion
18. Right to privacy.
19.The rights of the child
20. Political rights such as right to vote etc.
21. The rights of the minority etc.
Rights contained in the ICESCR
1. Right to self determination
2. Right to work
3. Right to enjoy just and favourable condition of work
4. Right to form trade unions
5. Right to social security.
6. Right to an adequate standard of living including adequate food clothing and
housing andto the continues improvement of living conditions
7. Right to enjoyment of the highest attainable standard of physical and mental health.
8. Right to education
9. Right to take part in cultural life.
10. Right to enjoy the benefits of scientific progress and its application.
11. Protection of family; including special assistance for mother and childrenetc.

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Our constitution likewise divides the rights into two parts. Negative rights which are
in the form of prohibition put in part III fundamental rights. The positive rights which require
action by the state are called directive principles of state policy and are put in part IV of the
constitution and courts are empowered to enforce the rights enshrined in part III, but notthose
in part IV.
NATURAL RIGHTS IN MIDDLE AGES
In the Middle Ages, the scholastic philosophers30 like Abelard (1079-1142) and
Thomas Acquinas (1224-1274), the most original thinkers of their times, laid stress upon the
concept of natural law as the higher principles of law to be derived from reason. But they did
not go in quest of making the human personality as the main concern of law and social life.
Thomas Acquinas, like Aristotle, justified the existence of the practice of slavery. Thus, the
man was dispensed with as central notion of medieval philosophy of law. Much attention was
focused on the development of the principle of the sovereignty of state rather than on the
development of respects of human qualities. This principle later on became one of the
greatest obstacles to the international protection of human rights.
Again, a set-back was also caused during 16th century to the development of the
concept of natural rights by Machiavelli‘s teachings. He was opposed to the concept of
natural law and supported absolute monarchy. His philosophy was not based on any mystical
thought such as that of natural law; rather, it was here and now philosophy. For him human
nature was bad and selfish which necessitated the establishment of State to curb and crush
the anti-social elements existing in human mind.
.

THEORIES OF HUMAN RIGHTS

To have the basic understanding of human rights one should look at certain theories
on the subject. The theories provide analytical tool to gauge the subject matter of the concept
up on which there might be an agreement. A precise insight into the major theories of human
right is as follows:
PHILOSOPHICAL APPROACH:

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THE NATURAL RIGHT THEORY

This is the earliest theory traced back to ancient Greeks, which linked rights to man
by nature and thus self - evident trucks. They were considered as inborn absolute, pre- civil
and even pre - social. They can be asserted anywhere and everywhere. Thomas Paine,
Gretius, Tom Paine, and John Locke are the main exponents of this theory. They derived
rights from god, to them every individual possesses a unique identity and expected to account
for his actions as per his own conscience. However, critics argue that rights are not abstract,
absolute or unidentified phenomena. Liberty as they argue, lives within restraints. So
restraints upon rights create social conditions where everyone has a sphere to develop his
personality and correspondingly has his obligation to others. "Rights and obligations are in
fact the two sides of the same coin. Despite the above short-coming the theory of natural
rights inspired the idea that any kind of unjust, arbitrary, or oppressive treatment to human
beings is an assault upon humanity itself. Apart from this, it also provided the basis for the
French, English and American Revolution thereby resulting in the Bill of Rights.
In the contemporary sense of the term, human rights has been defined by Elaine
Pagels as the idea that the individual has rights: claims upon society, or against society: that
these rights, which society must recognize, on which it is obliged to act, are intrinsic to
human beings.
What is postulated here is not only that there are human rights but also these have
universal application, it is opposed to the idea that the human rights are conferred upon the
individual members by the society in which they live. It postulates that the human rights are
claim upon or against the society and these rights exist independent of and even prior to the
formation of society. Thus, the natural rights theory in its ultimate analysis rests upon the
intrinsic nature of man. This natural rights explanation of the human rights has following
three characteristic features:
i. Human rights are said to be recognized
Human Rights are neither derived from the social order nor conferred upon the
individual by the society. They reside inherently in the individual human beings independent

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of and even prior to his participation in the society. As such, they are the result of recognition
by the State but they are logically independent of the legal system for their existence. For this
reason, many thinkers have assigned the origin of human rights to natural law and not to
positive law.
In this sense natural is said to be a normative system which is characterized by the
fact that the criterion for the validity of its norms is based not on their enactment or
recognition by certain individuals but on their intrinsic justification.‖ In the same spirit, the
human rights being derived from the principles of natural law do not depend for their validity
on being formulated oraccepted by any authority. Thus a positive legal system which does
not recognize human rights is not law.
ii. Human rights are said to be inalienable, natural and inherent
Human Rights are inalienable in the sense that a holder of these rights cannot divest
himself of them. The reason is simple. These rights are inherent in the very nature of human
being. Jacques Maritain has said that the human person possesses rights because of the very
fact that it is a person, a whole; a master of itself and of its acts…..by natural law, the human
person has the right to be respected, is the subject of rights, and possesses rights. These are
things which are owed to a man because of the very fact that he is a man.
The inalienable or natural rights are not identified with the norms of positive law.
They are independent of the positive law, as such; human rights are used as a reference to
evaluate the rules of positive law, law enforcement machinery, legal institutions and
performances of State. When a legal system does not recognize human rights it is criticized
as being oppressive and persistent demand is made for upholding the value of human rights.
Teanamen square episode of 1989, in which pro democracy demonstration of students was
brutally crushed is always cited as an instance to criticize China for its no concern for human
rights and the brutal suppression of dissent in the country. For that matter, African and Asian
nations are criticized for not implementing international human rights standards.
iii. All human beings are said to be essentially equal

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Now it is an established fact that human rights are derived directly or indirectly form the very
nature of man. From this it may be argued that by virtueof being human, one inheres all those
attributes which are inherent in human personality, and natural rights being one among those
attributes are inherited naturally. Thus, the only condition necessary for enjoying natural
basic rights is to be a human being.
Apparently, this appears to be a very reasonable proposition because it lays down an
objective equalitarian principle according to which a human being , by virtue of being
human, can posses or enjoy all human rights without any distinction as to his colour, statute,
wealth or to his rationally.
From this, Carlos Santiago Nino argues that, ―if the only relevant condition for
enjoining certain rights is being human, and if this property does not admit of degrees, there
cannot be differences of degree in the extent to which the rights in question are held; this is,
all human beings have them to the same degree.
This leads to inevitable conclusion that all human beings are equal. It may be useful
to quote Barnard Mayo also: Human Rights are the rights that a human being has in virtue of
whatever characteristics he has that is both specifically and universally human.
THE LEGAL RIGHT THEORY
This theory is a reaction against the theory of natural rights. The advocates of this
theory argue that the theory of natural law and natural rights are abstract and ridiculous
phenomena. Hence the existence and enjoyment of fundamental rights of an individual could
be better maintained and practiced by the state rather than individual himself. Thomas
Hobbes, John Austin and Jeremy Bentham are main profounder of this theory. According to
them right are utilitarian concepts and thus the rules and regulations are necessary for
protection of one’s rights. Up to here people have to sacrifice some rights and freedom for
the welfare of society. This theory has been criticized by the argument that law alone cannot
create right but custom, tradition and morality also have basis for right.
Jermy Bentham has criticized the natural right theory as nonsense upon stilts. He has
advocated in favour of legal rights theory. In the opinion of supporters of legal right theory

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rights are the creation of State. As such, they are neither absolute nor inherent in the nature of
man.
These rights such as right to life, Liberty or property are artificially created by the law
of the land. Thomas Hobbes, one of the ardent supporters of the legal right theory holds the
view that fundamental rights of individual are the right of self-preservation which can be
protected by State in better manner than by any other means.
This theory can be upheld to the extent that the recognition of a right by State is
necessary for its enforcement. If a State does not recognize a right it cannot be enforced,
however potential it may be. Even in democratic societies where people will reign supreme
recognition of rights by State is essential for their enforcement against the State.
Bosanquet has rightly noted that: A right…………. Has both a legal and moral
reference. It is a claim which can be enforced at law, which no moral imperative can be; but
it is also recognized to be a claim which ought to be capable of enforcement at law, and thus,
it has a moral respect……….a typical right unites the two sides. It both is, and ought to be,
capable of being enforceable at law.
THE HISTORICAL THEORY OF RIGHTS
The historical theory maintains that the rights are the creation of historical process. A
long-standing custom in the course of time concretise in the specific form of right. A
traditional example may be used here to explain the process in which rights generally
concretise. A person who receives birth day presents from his friends and relatives regularly
for a long time develops expectation to receive it as a matter of right.
Indeed there are rights which are created in this process more particularly most of the
prescriptive rights, such as, right of way or right of light or air. In thesame spirit many of the
natural rights have the sanction of the longest and the least broken custom, for example, the
rights of Englishmen, which have found mention in the Magna Carta and the Petition of
Right.
These in fact have been enjoyed from very early days. This justifies the comment of
Ritchie that those rights which people think they ought to have are just those rights which

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they have been accustomed to have, or which they have a tradition (whether true or false) of
having once possessed. Custom is primitive law. The Historical theory of rights has some
very important limitations:
First: The statement that rights originate from historical process or custom may be
true to a limited extent only. In fact, there is more exaggeration than truth in it. Practice of
slavery which once had been considered as lawful cannot be claimed as a matter of right nor
so the practice of infanticide. Mores or customs of people cannot make everything right.
Second: To relate origin of rights to custom is to stop all social reforms. For instance,
practice of sate, polygamy, child marriage, untouchability, etc, had once been recognized as
valid custom but now they are disapproved by the enlightened public opinion and therefore,
prohibited by law.
THE SOCIAL WELFARE THEORY OF RIGHT
The Social Welfare Theory is also known as the Social Expediency Theory. The
advocates of this theory believe that law, custom and natural rights, all are conditioned by
social expediency. For instance, right to freedom of speech is not absolute but rather
regulated in accordance with the requirements of social expediency. Roscoe Pound and Prof.
Chafee have supported this theory.
The utilitarian like Bentham and Mill have also supported this theory. They have
advocated for the greatest happiness of the greatest number as a principles on the basis of
which all the social measures should be judged. Utility can be determined by means of reason
and experience.
The Social Welfare Theory has played important role in the development of number
of human rights. A large number of economic and social rights have been incorporated in the
Universal Declaration of Human Rights and then in the International Covenant on Economic,
Social and Cultural Rights, wherein, it is expressly provided that the entitlement to those
rights has to be in accordance with the organisation and resources of each State.
THE IDEALISTIC THEORY OF RIGHTS

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The Idealistic Theory of Rights is also known as Personality Theory of Rights. This
theory insists on the inner development of man, on the development of his full potentially.
Hence, it treats right of personality as a supreme and absolute right.
All other rights, such as, right to life, right to liberty or right to property are derived
from this one fundamental right. These various rights are related to the right of personality.
The chief merit of this theory is that it insists upon right of personality as the only absolute
rights and all others rights are derived from it and are conditioned by it.
However, this theory has limitations also. First, it is difficult for a State to ascertain
the extent to which various rights are required for an individual for the development of his
full potentiality. Since personality is a subjective idea no objective standard can be laid down
for it. Second: Generally social good andindividual good coincide. But if conflict occurs
between the social good and individual good, it is the later that must be followed according
to this theory. It goes against the spirit of the Social Welfare Theory.
THE ANTI- UTILITARIAN THEORY OF RIGHTS
The priority of the well being of the majority as stated by the utilitarian is not the
prime objective of the state. Among them Dowrkin, Nozic and John Rowals are the leading
ones. They hold that the majority might lead to detrimental consequences as far as the
welfare of a particular group of people is concerned.
So there has to be proper reconciliation between the wellbeing of the majority and
individuals for enjoyment of social and individual wellbeing rights.
THE LEGAL REALIST THEORY OF RIGHTS
A group of jurists discussed as to what law does not, what law is that makes it to be in
a highly complex and industrialized society. This theory did not propound a common theory
of rights. They argue that human right is nothing but manifestation of an arguing process
rather than theoretical debate. This theory questions the existence of laws, their values and
actions enacted upon the society but no solutions.
THE MARXIST THEORY OF RIGHTS

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According to Marxists rights are simply a bourgeois concept and product of bourgeois
capitalists society primarily designed to maintain and reinforce the predominance of the
ruling class.They regard the state as a coercive agency to uphold the particular type of social
organization and law is a tool of the state that perpetuates and safeguards the interest of the
dominant group in the society.
Karl Marx believes that rights can exist and flourish in a classless society where all
are equal and no one is an exploiter. However, the contribution of Marxist thought to the
development of international concern on economic, social, and cultural rights. It has also
been found in the International Covenant on Economic Social and Cultural Rights, enshrined
in the International Concern on Economic, Social, and Cultural Rights, has been found in the
International Covenant on Economic Social and Cultural Rights (ICESCR) in 1966. This
theory does not include religion, custom, tradition and morality as the integral components of
human rights. To sum up the society is an organic unit and welfare of the community is built
upon the welfare of the individuals. Both go hand in hand. Hence a good theory of rights
should take into consideration the most conducive variable essential for the welfare of all the
members of a society.
PRAGMATIC APPROACH
Besides philosophical and theoretical approach, another way of looking at the
meaning and nature of human rights is pragmatism. Every right whether it has been
perceived as inalienable or otherwise can have validity and effectiveness only through some
process or institution. Thus, it cannot be defined without reference to some institutional
structure. As a room cannot be defined without reference to the walls, so human rights,
cannot be defined without reference to institutional settings
In the Indian context, for instance, fundamental rights are incorporated in Part III of
the Constitution of India. Although, the term fundamental right has now where been defined
in the Indian Constitution but on careful examination of these several fundamental rights one
would conclude that these rights constitute restrictions on the power of State and also require
the State to adhere to the guidelines pronounced in the matter, by the Supreme Court of India.

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View as such, the nature and meaning of human rights and fundamental freedoms, as referred
to in the Charter of the United Nations, should be ascertained with reference to the catalogue
of human rights instruments which may be divided into three broad categories :
A. Global, Such as, the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and
Political Rights, the International Convention on theElimination of All Forms of Racial
Discrimination, the Convention against Torture, and Other Cruel, Inhuman or Degrading
Treatment or Punishment, the Convention on the Elimination of All Forms of Discrimination
Against Women, The Convention on the Rights of Child and such other Covenants and
Declarations. These instruments have been adopted by forums set up under the auspices of
the United Nations.
B. Regional, such as, the European Convention on Human Rights and Fundamental
Freedoms, the European Social Charter, the American Declaration of the Rights and Duties
of Man, the American Convention on Human Rights, and the African Charter on Human and
People’s Rights. These human rights instruments have been developed under regional
forums, such as, the Council of Europe, the Organisation of American State and the
Organisation of African Unity.
C. Subsidiary treaties, which deals with only one human right or very small number
of human rights. These treaties impose more specific and detailed obligation upon the State
parties. For instance, the Conventions Relating to the Statues of Refugees and the Status of
Stateless Persons which contain detailed provisions for the specific application of right of
asylum proclaimed under Article 14 of the Universal Declaration of Human Rights.
Article 22 of the American Convention on Human Rights and Article 12 of the
African Charter on Human and People’s Rights 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 freedoms is to be ascertained by reference to the human rights catalogue

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proclaimed in the major U.N. Human rights instruments, starting with the Universal
Declaration of Human Rights. Thus, this catalogue should be our minimal definitional guide
on what the international community understands by human rights and fundamental
freedoms.
THE SOCIAL CONTRACT THEORY
The doctrine of social contract was closely linked with the theory of natural law
because the basis upon which the natural law theories were formulated was the same for the
social contract doctrine also. This doctrine became popular during 16th and 17th century
through the writings of such political philosophers as Thomas Hobbes (1558-1679), John
Locke (1632-1704) and Jean Jacques Rousseau (1719-1778). In general, they took the help of
the notion of social contract to explain the relationship between individual and society.
Initially, the social contract writers claimed that a superior power, either manual or legal was
established in pursuance of the social contract under which the people collectively undertook
to obey the commands of such superior power so long it governed them in their common
interest and kept itself within the terms of contract.
However, in the 17th century, the protagonists of social contract theory, particularly
Rousseau, undertook to explain that State was an artefact, an artificial creation of individuals,
or the result of the social contract. Rousseau began with the state of nature, in which man
was free and independent in all respect. From this state of nature according to him, there
emerged a political society by the separate acts of individuals, whereby they undertook with
one another to set up government which would be responsible to promote their common
interests.
The political society, so created would, by majority will, proceed to appoint
governors who would govern in accordance with the terms of contract, or the instrument of
trust or an act of delegation by which he was so empowered, the governor was to act on the
behalf of the people thus protecting their general interests and respecting their natural rights.
The violation of the terms of social contract on the part of the governor would justify not
only its disobedience but also rebellion against it.

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HISTORICAL DEVELOPMENT OF HUMAN RIGHTS IN INDIA

As Indian history has witnessed various cultural and social regimes and in each
periodhuman right has its development in different perspectives. Historical development of
Human
Right in India may be briefly examined here. The origin of the concept of Human Right is
notwestern but considered are accepted principle of Indian culture. The Indian History of
humanrights in too old.
i. Human Rights in Ancient India (In Vedic Age)
In the ancient civilization during the „Vedic period of Brahminical Society rights
ofindividuals were recognized through higher moral low (Dharma). Conceptually the
moralvalues of Dharma (Righteousness), Artha (Wealth), Kama (Desire) and Moksha
(Salvation)were designed to create harmonious social order by striking a balance between
inner andouter as well as spiritual and material aspects of life. Human Rights were known to
ancientpeople as Natural Rights or Rights of Men. Dharmasastra portrayed in Vedas,
Purana,Mahabharata, Bhagwat Gita and other religious scriptures aimed to free people from
tracesof conflicts, exploitation and miseries. Even the Rulers enacted Laws in subordination
to suchnatural tenets. It was believed that Laws must aim for helping mankind in enjoying
libertyand fundamental freedom and for dignified living. The Central purpose of ancient
Shastrawas to preserve Dharma and to ensure that people live according to Dharma. In
ancientIndia, Dharma was considered as the Universal concept of righteousness, which
sought tohold the civil society together.
Koutilya, the author of Arthashastra not only affirmed and elaborated the civil
andlegal rights formulated by Manu but also prescribed certain Economic Rights and
ordainedthat the King shall provide maintenance to the orphan, the aged, the in firm, the
affected, thehelpless, afflicted expectant mother and children. Manusmiriti describes human
rights therights of man to be normative practice of people. The ancient Indian concept of
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HumanRights and the Humanitarian laws were based on war regulations and were adopted
before,during and after war. Ancient texts sought to enforce protection of right to property in
thecivil society. It is revealed that the society in Vedic India was well structured and
highlyorganized. Hindu thought, spirit and action from times immemorial moulded people
towardsthe realization of Dharma in a timeless fashion.
With the invasion of Aryans, gradually the doctrine of Karma (work) and the theoryof
transmigration of soul were formulated to perpetuate inequality that distorted the ideas
ofrights and responsibilities. People became victims of orthodox contradictions and casteism.
The violators of human rights remained invisible under the garb of religious
prejudices.
ii. Human Rights in Buddha Period
In the post vedic period, the rise of Buddhism and Jainism were certainly a
reactionagainst the deterioration of the moral order as against the rights of the privileged
class. Aclose scrutiny of Buddhist period reveals that people were equal in all fields of their
life. Lifewas more humane and liberal and repudiated caste distinctions.
During the Buddha period caste system was rejected by the Buddha followers andthey
practiced non-violence, non-hatred and friendliness to all. During that time, seculareducation
was introduced so that people from all walks could learn universal freedom andtolerance.
Emperor Ashoka not only followed but also preached non-violent humanitarianand humanist
values of Buddhist philosophy.
After Buddha, Ashoka protected and secured the most precious of human
rightsparticularly right to equality, fraternity, liberty and happiness. He successfully
established awelfare state and made provision for securing freedom from hunger. Health
care, educationalfacilities and certain other social amenities in Ashoka‟s empire were
perhaps initial efforts inthe direction of the realisation of social economic and cultural rights.
iii. Human Rights in Muslim Period
The advent of Muslim rule led to system and ideals totally different from Hindu
viewof society and life. Muslim conquerors made frontal attacks an ancient way of life

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andreligion. The destruction of temples, idols and large scale conversion to Islam alienated
themasses. However, at a later stage the Muslim State in India became considerably modified
inits form.
In the period of Akbar, a new era began in Mughal history of India in the field
ofHuman Rights, with his policy of Universal reconciliations and tolerance. He was
earnestlyconcerned with the welfare of his subjects. His justice – living tradition was
followed by hisSon Jahangir also. Besides freedom of trade, in a limited sense, freedom of
religion was afascinating aspect of the Mughal period. The trend initiated by Akbar came to
be reversed byAurangzeb, though the Marathas and the Sikhs opposed and fought against the
fanaticism ofAurangzeb and his successors.
The sheer indifference to human rights ultimately gave rise to Bhakti movement in
India. It revived and regenerated to old Indian value of truth, righteousness, justice
andmorality. Great saints like Shankaracharya, Ramanuja, Madhava, Guru Nanak,
Alvars(Tamil Saints), Siddhakara, Sufi saints like Kabir, Tulashidas, Tukaram, Bal Saints of
Bengal like Jaider, Chaitanya and others became prominent in propagating Bhakti (the
pathof devotional movement), the spirit of mutual understanding, tolerance co-operation
andhuman equality. The cult of Avatar as expounded by Lord Krishna in Bhagwat Gita
wasrevived by these saints and seers (devotees), who saw God in the form of Rama and
Krishnato protect the righteous persons and to punish the evil order. These social reformers
reinstatedthe path of Dharma in the Society.
iv. Human Rights in British India
In British India resistance to foreign rule was manifested in the form of demand
forfundamental freedoms and civil and political rights for the people. There was no
fundamentallaw guaranteeing rights and liberties and people were discriminated in many
ways in theirown country. Under the British rule, human rights and democracy were
suppressed, denied,ignored and trampled for the sake of English rulers. The entire
administrative and judicialsystem of the country was oriented to the needs of British
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India was rightly depicted and described as dark period in Indian history of Human Rights.
The British Indian rulers discriminated against Indians in matters of their political
andcivil liberties and rights. The legislature, executive and judiciary were oriented to protect
andpromote the interest of the British. Gandhiji condemned British rule over India as
Satanic,Adharmik, (unjust) and coercively violent (himsa). He expounded the theory of
peacefulresistance (satyagarha) to fight British rulers. He aroused the spirit of self –
respect,nationalism and patriotism in the hearts of Indians. The people of India under the
leadershipof Mahatma Gandhi launched non-violence struggle to achieve self Government
andfundamental rights for themselves. Lokmanya Tilak advocated that freedom was the
birthright of Indians for which they will have to fight. The British Government adopted
morerepressive measures, particularly during the Second World War.
v. Human Rights in Independent India
The concrete demand for fundamental rights came in the wake of the
NationalistMovement which coincided with the birth of the Indian National congress in
1885. Theconstitution of India Bill, 1895 prepared by Indian National Congress, also known
as theHome Rule Document, talked about a constitution guaranteeing the citizens, of human
rights.
With the commencement of the New Constitution of January 26th 1950, the Natural
law rightshave been incorporated in the Preamble, in chapters III and IV concerning
FundamentalRights and Directive Principles of State Policy.
The Fundamental Rights includes under part III of the Constitution of India are:
(i) right to equality;
(ii) right to six freedom:
a. Freedom of speech and expression,
b. Freedom of assemble peacefully 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, and

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f. Freedom to practice any profession or carry on any occupation, trade /

business.
(iii) right to life and personal liberty
(iv) right to freedom of religion
(v) Cultural and educational rights
(vi) Right to property
(vii) Right against exploitation and
(viii) Right to constitutional remedies
Under part IV the rights which are included:
a. right to adequate means of livelihood right against exploitation, right toboth sexes
to equal pay for equal work.
b. right to work, to education and public assistance in cases ofunemployment, old age,
sickness.
c. right to equal justice and free legal aid
d. right to living wage
e. right to workers participation in management of industries etc.,
Thus the concept of Human Right is not a new one to India. It was there with
peoplein the form of natural rights. It has travelled in the part lone distance for having its
presentname as human rights.
vi. Human Rights Movement in Post-Independence Period
In post-independence period, evolution of human rights movements cantered on
therelationships between Indian state and human rights groups. In fact, human rights groups
orits other generic formations like civil liberties or democratic rights organizations have
criticalrole in providing direction and momentum to the human rights movement. Human
rightsgroups not only exert pressure over the state for protection of civil liberties and
democraticrights but it also politicizes and democratizes the civil society at large. The
postindependenceperiod witnessed large proliferation of HRG‟s with different
ideologicalperspective that developed contentious relationship with Indian state.

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After the initial years of independence, the situation of civil liberties got
worsenedshortly. The Congress Governments in many states resorted to various repressive
measures inthe name of controlling law and order particularly to curb protest movements,
whichsuppressed the communist movements and the movements of peasants and workers.
Thispolitical suppression unleashed by the Congress government provoked the emergence of
civilliberties groups in different parts of the country.
The political situation of the country was taking an authoritarian turn during
theEmergency period from 1975-77. The congress government resorted to the use
ofundemocratic measures. During the emergency period, civil liberties of the citizens
werecurtailed and the democratic structures of state were jeopardized. As a protest against
theundemocratic rule of the state, some civil liberties and democratic rights groups were
formedin the states of West Bengal and Andhra Pradesh. The repression during the period
ofemergency resulted in the revival of civil liberties movement in India. The imposition
ofemergency precipitated the birth of a democratic consciousness which crystallized
intonumerous civil liberties and democratic rights organizations across the country.
vii. Human Rights Movement in Post-Emergency Period
In the post-emergency period, the human rights movement witnessed a
significanttransformation in the wake of political violence of terrorism and secessionist
movement in
1980’s.Till this period, the focus of the HRG‟s was primarily on restoration of
Constitutionalrights enshrined in Indian Constitution; later on they were more vigilant over
the state againstits violation of civil liberties and also for the enlargement of democratic
rights of people. Riseof political violence has been seen as by-product of feebleness of the
Indian state which hasbeen ineffective in dealing with the socio-economic demands of
people. In this context, the activities of HRG’s (the proliferations of which are heterogeneous
and fragmented) witnesseda significant change in the functioning and organizational set up of
the HRG’s. The activities of HRG’s shifted to the investigation and documentation of

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incidents and violation, publiccampaign to create a democratic consciousness among the

masses, and demand for repeal ofrestrictive or preventive laws.
During this phase various democratic organizations emerged for striving towards
theprotection of democratic rights of the vulnerable weaker groups such as daliths,
tribals,women child, which turned the human rights movement into a broader perspective,
beyondfocusing on the defence of political rights, by addressing on the issues related to the
violationof human rights at the civil and social level, such as the social and economical
discriminationagainst the poor, religious and ethnic minorities, women and children. One of
the factorsbehind widening the focus has been the greater interaction of Indian human rights
activistswith international human rights organisations such as Amnesty International, Human
Rights
Watch, etc.
In the early 1980s the introduction of Public Interest Litigation mechanism in
judicialsystem marked the significant beginning in human rights activism. It revolutionized
thehuman rights movements in the country especially after that witnessed various
judicialpronouncements on local standi of marginalized groups. Therefore, the post –
emergencyphase of human rights movements in India was marked with democratic phase.
viii. Contemporary Development in the Problems and Challenges of
Human RightsMovements during the Phase of Economic Reforms
New challenges to the human rights have assumed added importance during
thecontemporary period concerned with the development process. Therefore
significanttransformation is needed in human rights activism. New challenges are beyond the
domain oflaw; Issues like that of societal violence, Untouchability problem of daliths, rights
oflivelihood of indigenous people, communal violence and struggle for natural resources
wherestate intervenes through development packages, that constituted some of the new
challengespassed before Human Rights Groups.
Economic Reforms had serious implications for the human rights movement in
thecountry. Since 1990s, Indian Government had introduced the Liberalisation – Privatisation

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–Globalisation (LPG) in the Indian economy. The welfare component of the State has
beenreceding and the market mechanism has assumed dominance. The worst sufferer of
thephenomenon of reforms is poor, vulnerable and marginalized section of the
communitywhose rights are violated both by the Government and the market. The rapid
modernizationhas also brought new problems and issues of human rights in the world, such
asenvironmental pollution, sustainable development, health and ecology, cyber crimes,
genderinjustice, etc., which pose new challenges before human rights organizations.
For the past two decades the process or phenomenon of globalization has
affectedevery domain of human society in the world. In this regard the local issues and
concern forhuman rights are getting global attention. In the new world order, the
development ofcountries is measured on human rights determinants. In the preparation of the
Human
Development Index of the world, the human rights component is one of the
importantvariables. In this situation, the globalization of human rights assumes importance.
Globalization of human rights also poses challenges to the Human Rights
organizationsworking within the paradigm of State sovereignty. Indian Government has not
been veryfriendly to the international human rights organizations like Amnesty International,
HumanRights Watch, and many a times it has restricted the entry of these organizations to
theregions known for the huge violations of human rights. Their reports are also not
acceptedand are criticised as biased.
Human Rights Groups now have to explore the social space and modus operand
infacing new challenges in the contemporary period. Human Rights Movement is now
enteringinto the social sphere of the civil society to participate in the process of
democratizing notonly the state but also the society itself.

CLASSIFICATION OF HUMAN RIGHTS

Human rights can be broadly classified from two different perspectives, first from the
perspective of various aspects of Human Life, Social Economic, Political, Moral, and Civil

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and secondly, from the perspective of the methods of securing them. On the second basis
they are constitutional or legal. These classifications can be discussed under the following
heads:
1. Natural Rights
Natural rights are those rights which are inherent and integral to human nature. In fact,
every individual by nature is given an individual property of his own which cannot be taken
away by any authority. Such rights include intellectual rights, rights of the mind and also
rights of acting as an individual for his own comfort and happiness provided they are not
injurious to the natural rights of others.
2. Moral rights
These rights are based on the general principles of fairness and justice. These are simply
aspirations and ideals of people. Sometimes, people justify this right by the role they play in
the family or the position in the society. Mothers of the family must be consulted about what
is going on in their family. So it is moral duty of other members of the family to support this
kind of status of the mother.
3. Fundamental rights
There are certain rights which are more important and basic than the other. For example,
right to life is the most basic of all rights upon which the enjoyment of other rights depends.
These rights can never be restricted or taken away by any authority. The other is the right to
be recognized as a person before the law, the right to equal protections, under law and
freedom from illegal arrest or detention.
4. Legal rights
Legal rights are otherwise known as positive rights. These rights are laid down in law.
They are also guaranteed and protected by the law of the state. Thus legal rights are uniform
and given to all irrespective of the caste, colour, race, culture, sex or place of birth.
5. Civil and Political Rights
The rights that are granted by government or civil society are called civil and political
rights. These rights provide the basis for the fulfilment elementary conditions of social life.
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Without them civilized life is not possible and they are, therefore, considered to be very
essential for the free and progressive life of man. Civil and Political Rights, however, include
the right to freedom of speech, of assembly, the right to move freely, to hold properly, and
practice trade or profession, and the right to take part in the government of one's country.
Part
III of the Constitution of India has resemblances with these rights:

6. Economic Social and Cultural Rights

The rights are in order to eradicate social inequality, economic imbalances and to limit
disadvantages caused by nature, age and so on. These rights, however, not bound to meet all
these entitlements at once. It will depend upon the economic resources of the society. Most
of the socialist states regard these rights as fundamental rights of the people. Rights the
equality, right to work, right of have family, right to privacy, right to information, right to
public assistance, during old age and sickness, right to health care, right to : special care
during childhood and during motherhood are some of the examples of these rights. They are
incorporated in part IV of the Constitution of India as directive principles of state policy.
THE FIRST GENERATION OF HUMAN RIGHTS
The various rights contained in the covenant on civil and Political Rights are not new
rights. Theseare the rights that had developed in the course of a very long period of time
since the time of Greek city stateand concretized in the form of the Magna Carta, the
American Declaration of Independence and the FrenchDeclaration of the Rights of Man and
of the citizen. These rights reflect long established human values andas such are incorporated
in the national Constitutions of various States. In the International covenant on civiland
Political Right, in European Conventions on Human Rights and in Inter-American and
Africaninstrument.
THE HUMAN RIGHTS OF SECOND GENERATION:

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The International covenant on Economic Social and Cultural Rights: As the main
source for theorigin of Civil and Political Rights is considered to be the American and French
Revolution.
THE HUMAN RIGHT OF THIRD GENERATION: COLLECTIVE
RIGHTS:
Individuals are also members of such units, groups or communities as a family,
religions,community. Social club,trade,union, professional association, racial group, people
nation and state. Thisthird generation solidarity rights right to peace, right to clean
environment.
It is not surprising; therefore, that International Law not only recognizes inalienable
rights of anindividual but also recognized certain collective rights exercised jointly by
individuals who group into largercommunities including people of nation.
From above some human rights are “inalienable rights” means unalienable rights
refer to a set ofhuman rights that are fundamental, are not awarded by human power which
cannot be surrendered.

THE DECLARATION ON THE RIGHT TO DEVELOPMENT

The Declaration on the Right to Development was proclaimed by the UNGA under
resolution 41/128 in 1986. with only the United States voting against the resolution and eight
abstentions. The United Nations recognizes no hierarchy of rights, and all human rights are
equal and interdependent, the right to development then is not an umbrella right that
encompasses or trumps other rights nor is it a right with the status of a mere political
aspiration.

The Right to developmentis regarded as an inalienable human right which all peoples
are entitled to participate in, contribute to, and enjoys economic, social, cultural and political
development. The right includes 1) people-centered development, identifying "the human

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person" as the central subject, participant and beneficiary of development; 2) a human rights-
based approach specifically requiring that development is to be carried out in a manner "in
which all human rights and fundamental freedoms can be fully realized"; 3) participation,
calling for the "active, free and meaningful participation" of people in development; 4)
equity, underlining the need for "the fair distribution of the benefits" of development; 5) non-
discrimination, permitting "no distinction as to race, sex, language or religion"; and 6) self-
determination, the declaration integrates self-determination, including full sovereignty over
natural resources, as a constituent element of the right to development.

The right is a third generation right viewed as a group right such that it is owed to
communities as opposed to an individual right applying to individuals "It is a people, not an
individual that is entitled to the right to self-determination and to national and global
development". One obstacle to the right is in the difficult process of defining 'people' for the
purposes of self- determination. Additionally, most developing states voice concerns about
the negative impacts of aspects of international trade, unequal access to technology and
crushing debt burden and hope to create binding obligations to facilitate development as a
way of improving governance and the rule of law. The right to development embodies three
additional attributes which clarify its meaning and specify how it may reduce poverty 1) The
first is a holistic approach which integrates human rights into the process 2) an enabling
environment offers fairer terms in the economic relations for developing countries and 3) the
concept of social justice and equity involves the participation of the people of countries
involved and a fair distribution of developmental benefits with special attention given to
marginalized and vulnerable members of the population.

The right was first recognized in 1981 under Article 22 of the African Charter on
Human and Peoples' Rightsand subsequently in the Arab Charter on Human Rights. It is now
recognized in numerous international instruments, with the Rio Declaration asserting under
principle 1 "Human beings are at the centre of concerns for sustainable development, they are
entitled to a healthy and productive life in harmony with nature". Other instruments include

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the Vienna Declaration and Programmed of Action the United Nations Millennium
Declaration, the 2002 Monterrey Consensus, the and the 2007 Declaration on the Rights of
Indigenous Peoples.

Article 3 provides that "States have the primary responsibility for the creation of
national and international conditions favourable to the realization of the right to
development" and this encompasses three main levels 1) States acting collectively in global
and regional partnerships; 2) States acting individually as they adopt and implement policies
that affect persons not strictly within their jurisdiction and 3) States acting individually as
they formulate national development policies and programmers affecting persons within their
jurisdiction.

Article 6 importantly provides "States should undertake, at the national level, all
necessary measures for the realization of the right to development, echoing Article 2.1 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) which states that
"each State Party to the present Covenant undertakes to take steps, individually and through
international assistance and co-operation, especially economic and technical, to the
maximum of its available resources. Furthermore, the Maastricht Guidelines on violations of
economic, social and cultural rights provides that a state is in violation of the Covenant if it
fails to allocate the maximum of its available resources to realizing human rights.

The Inter governmental Working Group on the Right to Development was established
in 1998 and meets once a year reporting to the Human Rights Council (HRC) and the
General Assembly. Its mandate is to globally (a) monitor and review progress made in the
promotion and implementation of the right to development as elaborated in the Declaration,
providing recommendations and analyzing obstacles to its full enjoyment; (b) to review
reports and other information submitted by States, United Nations agencies, relevant
international and non-governmental organizations, on the relationship between their activities

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and the right to development; and (c) to present a report to the HRC including advice to the
Office of the United Nations High Commissioner for Human Rights(OHCHR)

The mandate of the High Commissioner (HC) and the OHCHR as stated in resolution
48/141 4 (c) seeks "to promote and protect the realization of the right to development and to
enhance support from relevant bodies of the UN system for this purpose." The right to
development is highlighted in the General Assembly and the HRC which both request the
UN Secretary-Generaland the HC to report annually on progress in the implementation of the
right to development including activities aimed at strengthening the global partnership for
development between Member States, development agencies and international development,
financial and trade institutions.

The U.N. Commission on Human Rights adopted by consensus a resolution on the

Right to Development 1998/24 Effects on the full enjoyment of human rights of the
economic adjustment policies arising from foreign debt and, in particular, on the
implementation of the Declaration on the Right to Development. The Commission
recommended a follow up mechanism consisting of an open ended working group (OEWG)
and an Independent Expert, Arjun Kumar Sengupta and Indian economist who was selected
to the post. The purpose of the working group was to monitor and review the progress of the
Independent Expert and report back to the Commission. The Independent Expert presented to
the working group at each of its sessions a study on the current state of progress in the
implementation of the right to development.

In 1986, the Declaration on the Right to Development was adopted by theGeneral

Assembly, recognizing that development is a comprehensive economic,social, cultural and
political process which aims at continuouslyimproving the well-being of the entire
population and of each individual.
The Declaration on the Right to Development states that the right to developmentis an
inalienable human right, which means that everyone has theright to participate in, contribute

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to, and enjoy economic, social, cultural andpolitical development. This right includes
permanent sovereignty over naturalresources; self-determination; popular participation;
equality of opportunity;and the advancement of adequate conditions for the enjoyment of
other civil,cultural, economic, political and social rights.
For the purposes of development, there are three human rights standards thatare
particularly relevant to the full enjoyment of the right to development: theright to self-
determination, sovereignty over natural resources and popularparticipation.

SELF-DETERMINATION
The right to self-determination is a fundamental principle of internationallaw. It is
found not only in the Charter of the United Nations but in both theInternational Covenant on
Civil and Political Rights and the InternationalCovenant on Economic, Social and Cultural
Rights. Its importance to therespect for all human rights is reinforced by the Human Rights
Committeesreference to it in General Comment 12 as being .of particular importancebecause
its realization is an essential condition for the effective guarantee andobservance of
individual human rights and for the promotion and strengtheningof those rights.. It is
generally recognized that the right to selfdeterminationhas two aspects, the internal and the
external. The externalaspect is defined in General Comment 21 of the Human Rights
Committeewhich states that it:implies that all peoples have the right to determine freely their
politicalstatus and their place in the international community based on the principleof equal
rights and exemplified by the liberation of peoples fromcolonialism and by the prohibition to
subject peoples to alien subjugation,domination and exploitation..
The external consideration of self-determination is fundamental as it relates
todevelopment. It is necessary for a State to be free from the above-mentionedconditions to
be able to determine its own policies fully in all realms of governance,and more particularly
in the area of development policy.
The internal aspect of the right to self-determination is best illustrated by theHuman
Rights Committee which defines it as:.the rights of all peoples to pursue freely their

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economic, social and culturaldevelopment without outside interference.. [General Comment

21]
The Committee goes on to link this internal aspect with a Governments duty to
represent the whole population without distinction as to race, colour,descent or national or
ethnic origin.
RIGHT TO INFORMATION
In 2002, the Supreme Court held that the ‘freedom of speech and expression includes
theright to impart and receives information and the freedom to hold opinions’ and that
‘ademocracy cannot survive without free and fair election, without free and fairly
informedvoters’. The supreme court reaffirmed that the right to information about the
financial,educational and criminal backgrounds of candidates contesting elections, promoted
freedomof expression and therefore the right to information forms and integral part of the
Article19(1) (a) i.e right to speech and expression. Later, Right to Information Act was
passed in
2005 by the Government of India. It is one of the most revolutionary laws in India. Itenables
the citizens to get all information.

***

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UNIT II
THE UNITED NATIONS AND HUMAN RIGHTS
UNO AND HUMAN RIGHTS
The creation of UN was a sincere step to draw the nations together in proximity so
thatthey develop a bond and a desire to live together. The charter of the UN recognized
theinherent dignity of man. The Universal Declaration of Human Rights recognized that
allhuman beings are endowed with inalienable rights .To convert the declaration into
bindingtreaty, two covenants were prepared by the UN. They are the Covenant on Civil
andPolitical Rights and the Covenant on Economic, Social and Cultural Rights. There
werealso optional protocols in connected with the covenant. There are two optional protocols
tothe ICCCR and one optional protocol on ICESCR.
The Charter of the United Nations, gives due importance to the aim of
promotinghuman rights and fundamental freedoms. The charter states that the fundamental
objectiveof the UN is; ‘save the succeeding generations from the scourge of war’ and ‘to
reaffirmfaith in fundamental human rights, in the dignity and worth od human person and in
theequal rights of man and woman’. One of the five declared purposes of the UN is
theachievement of international cooperation in promoting and ensuring respect for
humanrights. Several articles in the Charter deal with the subject. For instance, Article 55,
56require the United Nations to promote a high standard of living, full employment to
createconditions of economic and social progress and development, promotion of
universalrespect for observation of human rights and fundamental freedoms. Further Article
62 of theCharter provides for setting up of several commissions, including one for the
promotion ofhuman rights. Accordingly, the commission of Human Rights was duly
constituted underthe chairmanship of Mrs. Eleanor Roosevelt. The Commission on Human
rights is the mainpolicy making body to deal with human rights.
The concept of human rights can be traced from ancient Greece and Rome. The
conceptof human right is very old and based on natural law. However the expression

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‘HumanRight’ is relatively new, having come into everyday parlance only since world war
second.
That is after the founding of the United Nations in 1945 and the UDHR in
1948.Although at the end of the First World War, some attempts on modest level were
madethrough the Treaty of Versailles and Paris Peace Conference, to promote and
universalizethe human rights, but it met with no success. The formation of the International
LabourOrganization is the result of Treaty of Versailles. Under the League of Nations the
ILO andthe Permanent Court of International justice did something to promote the human
rightsalthough the League did not contain the word human rights in its covenant.
In 1929, Institute of International law adopted a declaration of the International
Rights ofMan, which recognizes the rights of life, liberty and prosperity irrespective of
nationality,sex, race, language or religion.
During the Second World War many conferences were convened in the various sides
ofthe world to make international organization for the promotion of Peace and the
recognitionand the protection of the human rights. It was mainly for the universalization of
the humanrights and against the oppressive and brutal practices adopted by Nazi regime in
Germany.
It was believed that permanent peace could be established without securing
internationalsafeguards for human rights and fundamental freedom. In 1941, January 6, in his
messageto congress he referred to the four essential human freedom to which he looked
forward asthe foundation of a feature world. They are:-
1. Freedom of speech and expression
2. Freedom of worship
3. Freedom from want
4. Freedom from fear
INTERNATIONAL BILL OF RIGHTS
The International Bill of Human Rights is an informal name given to one General

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Assembly resolution and two international treaties established by the United Nations.
Itconsists of the Universal Declaration of Human Rights (adopted in 1948), the
InternationalCovenant on Civil and Political Rights (1966) with its two Optional Protocols
and theInternational Covenant on Economic, Social and Cultural Rights (1966). The two
covenantsentered into force in 1976, after a sufficient number of countries had ratified
them.In the beginning, different views were expressed about the form the bill of rights
shouldtake. In 1948, General Assembly planned the bill to include UDHR, one Covenant
andmeasures of implementation. The Drafting Committee decided to prepare two
documents:one in the form of a declaration, which would set forth general principles or
standards ofhuman rights; the other in the form of a convention, which would define specific
rights andtheir limitations. Accordingly, the Committee transmitted to the Commission on
HumanRights draft articles of an international declaration and an international convention
onhuman rights. At its second session, in December 1947, the Commission decided to
applythe term "International Bill of Human Rights" to the series of documents in preparation
andestablished three working groups: one on the declaration, one on the convention (which
itrenamed "covenant") and one on implementation. The Commission revised the
draftdeclaration at its third session, in May/June 1948, taking into consideration
commentsreceived from Governments. It did not have time, however, to consider the
covenant or thequestion of implementation. The declaration was therefore submitted through
the UnitedNations Economic and Social Council to the General Assembly, meeting in Paris.
TheGeneral Assembly adopted the Universal Declaration of Human Rights (UDHR) on
10thDecember 1948, which included the civil, political, economic, social and cultural rights.
Subsequently, in 1966 the Assembly adopted two covenants that are ICCPR and
ICESER.Later Assembly passed optional protocols to these two Covenants. The UDHR and
the twoCovenants and the Optional Protocol are popularly known as the International Bill
ofRights.

UNIVERSAL DECLARATION OF THE HUMAN RIGHTS

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It was more than fifty years ago, that the international community resolved to makea
historic commitment to enshrine the fundamental rights of the individuals for living inany
part of the world. The commitment came in the form of a Universal Declaration ofHuman
Rights (UDHR) adopted by the member states of the United Nations General Assembly on
December 10, 1948. The declaration outlined a common standard ofachievement for the
future of human rights and has become the cornerstone of humanrights. However, the UDHR
is not a binding treaty, but rather a declaration of principles ofhuman rights.
The UDHR which was adopted by the United Nations on December 10, 1948, which
contains 30 Articles, specifies and unequivocally affirms, among others thefollowing
generally agreed upon basic rights: right to life, liberty, and security of a person(Article. 3);
the right not to be subjected to torture or to cruel inhuman or degradingtreatment or
punishment (Article. 5); the right to equal protection of the law (Article. 7);the right not to be
subjected to arbitrary arrest, detention or exile (Article. 9); the right to afair and public trial
by an independent and impartial tribunal (Article. 10); the right tofreedom of thought,
conscience and religion (Article. 18); the right to freedom of opinionand expression (Article.
19); the right to freedom of peaceful assembly (Ato work, equal pay for equal work (Article.
23); the right to a standard of livingfor health and well being... including food, clothing,
housing and medical care (Article.25); the right to education (Article. 26); and the right to a
social and international order inwhich the rights set forth in this declaration can be fully
realized (Article. 28). WhileArticle 29 deals with the duties and limitations of individuals in
the exercise of rights andfreedoms, Article 30 makes provisions for protection against human
rights abuses.
Further, on assumption that the UDHR would not impose sufficient
bindingobligations, the UN Commission on Human Rights drafted the Covenants on human
rightsdesigned to become legally binding on the UN's member states. The two
Covenants,International Covenant on Economic, Social and Cultural Rights (ICESCR) and
theInternational Covenant on Civil and Political Rights (ICCPR) were presented to the
UnitedNations General Assembly in 1954. However, it took a further twelve years before

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theUnited Nations General Assembly adopted these Covenants in 1966. The ICCPR has
27Articles defining a variety of rights and freedoms, and imposing in Article 2 an
absoluteand immediate obligation on each of the state parties to respect and ensure these
rights toall individuals within its territories and subject to its jurisdiction. The ICESCR which
wasalso adopted by the United Nations General Assembly in 1954 has 31 Articles. Article 2
ofthe ICESCR provides that the States which are party to the covenant shall undertake
toensure the equal rights of men and women for the enjoyment of all economic, social
andcultural rights put forth in the Covenant.
According to the ICCPR it is the responsibility of all states to ensure the life,
libertyand security of its citizens. It shall also be the duty of the state to guarantee that no one
issubjected to arbitrary arrest and detention or to torture and that everyone is entitled to a
fairtrial. Everyone has the right to freedom of thought, conscience, religion and freedom
ofexpression. Under the ICESCR, all governments are expected to progressively improve
theliving conditions of their citizens, they should make efforts to guarantee the right to
food,clothing, housing, medical care and protect the family by ensuring the right to
socialsecurity, education and employment. They are to promote these rights without
discrimination of any kind.
The most visible trend in the development of human rights has been seen throughthe
increased number and range of treaties which elucidate or add to the principles of theUDHR.
Of these treaties, the most important are the International on ConventionEconomic, Social
and Cultural Rights (ICESCR) and the International Convention on Civiland Political Rights
(ICCPR), These are supplemented by a vast number of more specificinstruments such as the
Convention Against Torture and other cruel inhuman or degradingtreatment or punishment;
the Convention on the Elimination of all Forms of DiscriminationAgainst Women; the
Convention on the Rights of the Child; and regional Conventions suchas the European
Convention on Human rights 1953, the American Convention on HumanRights in 1958, and
the Charter on Human Rights and Peoples Rights in 1983. A briefdiscussion of the ICESCR

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and the ICCPR are made in the following passages to provide abetter understanding of the
two Covenants.
The Vienna declaration, a program of action, the end result of the 1993
Worldconference of Human Rights asserted that “All human rights are universal,
indivisible,interdependent and interrelated”. The declaration stated that human rights and
fundamentalfreedoms would have to be respected and promoted by all states irrespective of
theirpolitical, economic and cultural systems.
In 1946, the United Nations established a commission on human rights which started
thework on an international bill of rights –consisting of a universal declaration of human
rightsand the two covenants and protocols. In the first stage of this programme, during 1946-
1948, drafted and recommend to the General Assembly, the Universal Declaration ofHuman
Rights which was unanimously adopted by it on 10th December 1948. Thedeclaration was
proclaimed “as a common standard of achievement for all peoples and allnations” (even
those which were not UN members) and was accepted as a unanimousinterpretation of the
Charter by the most authoritative UN organ, the General Assembly. Itcatalogued almost all
important rights, civil and political and economic, social and culturalrights-which were not
defined in the year charter. Though it is a non-binding instrument, ithas acquired moral and
legal status. It is recognized in international law as customary law.
The preamble of the declaration pointed out its significant feature. It states that
theindividual, not the state or the government, is “the foundation of freedom, justice and
peacein the world”.The universal declaration inspired three regional human rights
commissions. The councilof Europe adopted a European Convention on Human Rights in
1950 by which itestablished the European commission and Court of Human Rights. In 1969,
theOrganization of American States adopted a similar convention of human rights and
theOrganization of African Unity (now African Union) adopted in 1981, the African charter
onhuman and people’s rights. The declaration has been translated into nearly 360 local
andregional languages. The declaration is the best known and the most sited human
rightsdocument in the world.

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The Universal Declaration of Human Rights stands as a common standard

ofachievement where all people’s or all nations, to the end that every individual and
everyorgan of society keeping this declaration constantly in mind, shall strive by teaching
andeducation to promote respect for these rights and the freedom and by progressive
measures,national and international , to secure their universal and effective recognition
andobservance , both among the peoples of member states themselves and among the
peoplesof territories under their jurisdiction.
The Universal Declaration of Human Rights consists of a Preamble and 30 articles.
Thedeclaration set forth the human rights and fundamental freedom to which all men
andwomen without distinction everywhere in the world are entitled. Article 1 of UDHR,
laysdown the philosophy upon which the declaration is based. It reads “All human beings
areborn free and equal in dignity and rights. They are endowed with reason
andconscience and should act towards one another in a spirit of brotherhood”.
The Universal Declaration was adopted by the UN General Assembly on 10th
December1948. The adoption of such a declaration was an historic event and one of the
greatestachievements of the UN. Now the people all over the world celebrate the human right
dayon every year the 10th December.
PREAMBLE
Whereas recognition of the inherent dignity and of the equal and inalienable rights of
allmembers of the human family is the foundation of freedom, justice and peace in the
world,whereas disregard and contempt for human rights have resulted in barbarous acts
whichhave outraged the conscience of mankind, and the advent of a world in which human
beingsshall enjoy freedom of speech and belief and freedom from fear and want has
beenproclaimed as the highest aspiration of the common people,Whereas it is essential, if
man is not to be compelled to have recourse, as a last resort, torebellion against tyranny and
oppression, that human rights should be protected by the ruleof law,Whereas it is essential to
promote the development of friendly relations between nations,Whereas the peoples of the
United Nations have in the Charter reaffirmed their faith infundamental human rights, in the

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dignity and worth of the human person and in the equalrights of men and women and have
determined to promote social progress and betterstandards of life in larger freedom,Whereas
Member States have pledged themselves to achieve, in co-operation with theUnited Nations,
the promotion of universal respect for and observance of human rights andfundamental
freedoms,Whereas a common understanding of these rights and freedoms is of the
greatestimportance for the full realization of this pledge,Now, Therefore THE GENERAL
ASSEMBLY proclaims THIS UNIVERSALDECLARATION OF HUMAN RIGHTS as a
common standard of achievement for allpeoples and all nations, to the end that every
individual and every organ of society, keepingthis Declaration constantly in mind, shall strive
by teaching and education to promoterespect for these rights and freedoms and by
progressive measures, national andinternational, to secure their universal and effective
recognition and observance, bothamong the peoples of Member States themselves and among
the peoples of territories undertheir jurisdiction.
Article 1: All human beings are born free and equal in dignity and rights. They are
endowedwith reason and conscience and should act towards one another in a spirit of
brotherhood
Article 2: Everyone is entitled to all the rights and freedoms set forth in this
Declaration,without distinction of any kind, such as race, colour, sex, language, religion,
political orother opinion, national or social origin, property, birth or other status.
Furthermore, nodistinction shall be made on the basis of the political, jurisdictional or
international status ofthe country or territory to which a person belongs, whether it is
independent, trust, non-self-governingor under any other limitation of sovereignty.
Article 3: Everyone has the right to life, liberty and security of person.
Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall
beprohibited in all their forms.
Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatmentor
punishment.
Article 6: Everyone has the right to recognition everywhere as a person before the law.

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Article 7: All are equal before the law and are entitled without any discrimination to
equalprotection of the law. All are entitled to equal protection against any discrimination
inviolation of this Declaration and against any incitement to such discrimination
Article 8: Everyone has the right to an effective remedy by the competent national
tribunalsfor acts violating the fundamental rights granted him by the constitution or by law
Article 9: No one shall be subjected to arbitrary arrest, detention or exile.
Article 10: Everyone is entitled in full equality to a fair and public hearing by anindependent
and impartial tribunal, in the determination of his rights and obligations and ofany criminal
charge against him.
Article 11: (1) Everyone charged with a penal offence has the right to be presumed
innocentuntil proved guilty according to law in a public trial at which he has had all the
guaranteesnecessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or
omissionwhich did not constitute a penal offence, under national or international law, at the
timewhen it was committed. Nor shall a heavier penalty be imposed than the one that
wasapplicable at the time the penal offence was committed.
Article 12: No one shall be subjected to arbitrary interference with his privacy, family,home
or correspondence, or to attacks upon his honour and reputation. Everyone has theright to the
protection of the law against such interference or attacks.
Article 13: (1) everyone has the right to freedom of movement and residence within
theborders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to
hiscountry.
Article 14: (1) Everyone has the right to seek and to enjoy in other countries asylum
frompersecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from
non-politicalcrimes or from acts contrary to the purposes and principles of the United
Nations.

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Article 15: (1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to
change hisnationality.
Article 16: (1) Men and women of full age, without any limitation due to race, nationality
orreligion, have the right to marry and to found a family. They are entitled to equal rights
asto marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intendingspouses.
(3) The family is the natural and fundamental group unit of society and is entitled
toprotection by society and the State.
Article 17: (1) Everyone has the right to own property alone as well as in association
withothers.
(2) No one shall be arbitrarily deprived of his property.
Article 18: Everyone has the right to freedom of thought, conscience and religion; this
rightincludes freedom to change his religion or belief, and freedom, either alone or
incommunity with others and in public or private, to manifest his religion or belief
inteaching, practice, worship and observance.
Article 19: Everyone has the right to freedom of opinion and expression; this right
includesfreedom to hold opinions without interference and to seek, receive and impart
informationand ideas through any media and regardless of frontiers.
Article 20:(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association
Article 21: (1) Everyone has the right to take part in the government of his country,
directlyor through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this shall
beexpressed in periodic and genuine elections which shall be by universal and equal
suffrageand shall be held by secret vote or by equivalent free voting procedures

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Article 22: Everyone, as a member of society, has the right to social security and is entitledto
realization, through national effort and international co-operation and in accordance withthe
organization and resources of each State, of the economic, social and cultural
rightsindispensable for his dignity and the free development of his personality.
Article 23: (1) Everyone has the right to work, to free choice of employment, to just
andfavourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring
forhimself and his family an existence worthy of human dignity, and supplemented,
ifnecessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24: Everyone has the right to rest and leisure, including reasonable limitation
ofworking hours and periodic holidays with pay.
Article 25: (1) Everyone has the right to a standard of living adequate for the health andwell-
being of himself and of his family, including food, clothing, housing and medical careand
necessary social services, and the right to security in the event of unemployment,sickness,
disability, widowhood, old age or other lack of livelihood in circumstancesbeyond his
control.
(2) Motherhood and childhood are entitled to special care and assistance. All
children,whether born in or out of wedlock, shall enjoy the same social protection.
Article 26: (1) Everyone has the right to education. Education shall be free, at least in
theelementary and fundamental stages. Elementary education shall be compulsory.
Technicaland professional education shall be made generally available and higher education
shall beequally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to
thestrengthening of respect for human rights and fundamental freedoms. It shall
promoteunderstanding, tolerance and friendship among all nations, racial or religious groups,
andshall further the activities of the United Nations for the maintenance of peace.

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(3) Parents have a prior right to choose the kind of education that shall be given to
theirchildren.
Article 27: (1) Everyone has the right freely to participate in the cultural life of
thecommunity, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resultingfrom
any scientific, literary or artistic production of which he is the author.
Article 28: Everyone is entitled to a social and international order in which the rights
andfreedoms set forth in this Declaration can be fully realized
Article 29: (1) Everyone has duties to the community in which alone the free and
fulldevelopment of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to
suchlimitations as are determined by law solely for the purpose of securing due recognition
andrespect for the rights and freedoms of others and of meeting the just requirements
ofmorality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes
andprinciples of the United Nations.
Article 30: Nothing in this Declaration may be interpreted as implying for any State, groupor
person any right to engage in any activity or to perform any act aimed at the destructionof
any of the rights and freedoms set forth herein.
Importance of the declaration
The Universal Declaration has received praise from a number of notable people.
CharlesMalik, Lebanese philosopher and diplomat, called it "an international document of
the firstorder of importance," while Eleanor Roosevelt, first chairwoman of the Commission
onHuman Rights (CHR) that drafted the Declaration, stated that it "may well become
theinternational Magna Carta of all men everywhere." 10 December 1948. In a speech on
5October 1995, Pope John Paul II called the UDHR "one of the highest expressions of
thehuman conscience of our time". And in a statement on 10 December 2003 on behalf of
theEuropean Union, Marcello Spatafora said that "it placed human rights at the center of

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theframework of principles and obligations shaping relations within the

internationalcommunity." John P. Humphrey observes: “No other act of the United Nations
has had thesame impact on the thinking of our times, the best aspirations of which it
incorporates andproclaims. It may well be that it will live in history chiefly as a statement of
great moralprinciple. As such it influence in deep and more lasting than of any political
document orlegal instrument”. UDHR is one of the largest translated documents in the world
1. The Declaration of human Right was the first of its kind in the history
ofInternational organization.
2. The declaration became one of the most remarkable developments in the law
ofnations
3. The declaration acquired a political and moral authority.
4. The declaration has exercised profound influence on the constitution of new
nationsand regional agreements
5. The Indian constitution was also greatly influenced by the UDHR
A Critical Appraisal
The important criticism leveled against UDHR are briefly described below
1. UDHR is highly individualistic in nature. Every right included in the UDHR
issupposed to be addressing an individual human being. It reduces the role of societyin
shaping the self and rights of the individual and also reduces the role of the statein bestowing
the individual citizens with certain positive entitlements.
2. The UDHR was criticized as a replica of the American Bill of Rights because of its
Supports to the liberal democratic idea of human rights which was not sufficient tosatisfy the
vision of communist countries about human rights
3. The importance given to the civil-political rights over the socio-economic rights
wasconsidered as an agenda popularized the liberal democratic vision of human rights atthe
international level during and after the cold war.
4. The human rights in the UDHR completely neglected the minority rights in
theopinion of communitarians

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5. Feminist scholars criticize that ,it hardly give any sufficient space for the rights
ofwomen and gender issues
6. The cold war politics was evident in the making of the UDHR
7. The Euro-centric nature of Human Rights has been criticized by the orient from
aneastern perspective against west. It led to the argument that the UDHR was aiming atthe
westernization of the agenda of human rights in the international politics.
8. There is also a criticism that there is an acute shortage of legal mechanism
andinstitutional apparatus to ensure the enforceability of rights given to all in theinternational
politics. In another words the UDHR has no force of law.

THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND

CULTURAL RIGHTS (ICESCR)
The International Covenant on Economic, Social and Cultural rights was adoptedby
the United Nations General Assembly on December 16, 1966, and came into force onJanuary
3, 1976. The Preamble to the Covenant states that state parties to the Covenant, inaccordance
with the principles proclaimed in the Charter of the United Nations, shouldrecognize the
inherent dignity and of the equal and inalienable rights of all members of thehuman family
which is the foundation of freedom, justice, and peace in the world. Article 1of the ICESCR
states that all peoples have the right of self-determination, by virtue ofwhich they can freely
determine their political status and freely pursue their economic, social and cultural
developments.
The Covenant on Economic, Social, and Cultural Rights contains various
Articleswhich provide recognition for the right to work (Article. 6), the right of everyone to
socialsecurity (Article. 9) and to an adequate standard of living for any individual and his or
herfamily (Article. 11). Each state party shall undertake necessary steps, with a view
toachieving progressively the full realization of the rights recognized in the covenant by
allappropriate means. The rights recognized are to be exercised without discrimination of any
sort. The ICESCR has no provisions for interpretation and application. Instead it providesa
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reporting procedure, through the UN Secretary General, to the UN Economic and

SocialCouncil (ECOSOC), which may transmit the state reports to the Human
RightsCommission with recommendations of a general nature.
THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS (ICCPR)
Though adopted by the United Nations General Assembly in 1966 the
InternationalCovenant on Civil and Political Rights (ICCPR) came into force on March 23,
1976/^ TheICCPR has 53 Articles, which define in much greater detail than the UDHR and
imposingan absolute and immediate obligation on each of the state parties to respect and
ensurethese rights to all individuals within its territories and subject to its jurisdiction.
According to Article 2, each state party is obligated to undertake, respect and to
ensure toall individuals within its territory and subject to its jurisdiction the rights recognized
in thepresent Covenant, without discrimination of any kind such as race, color, sex,
language,religion political or other opinion, national or social origin, property, birth or other
status.
Article 25 of the ICCPR provides equal rights for all citizens to take part in the
conduct ofpublic affairs, directly or through freely chosen representatives; to vote and be
elected atgenuine periodic elections based on universal and equal suffrage, secret
ballot,guaranteeing the free expression and will of the electors, coupled with other rights
tofreedom of speech, association and peaceful assembly and allowing for variation
inelectoral and constitutional arrangements.
The ICCPR contains provisions which include rights, inter-alia, and the right to
lifeand to protection against arbitrary deprivation of life; freedom from torture or
cruel,inhuman, or degrading treatment or punishment; freedom from slavery; the right to
libertyand to security of person; the prohibition against arbitrary arrest or detention; the right
to afair and public trial; the right of detainees to be treated with dignity; the prohibition
againstimprisonment for debt; freedom of movement and residence, including the right to
havecitizenship or nationality; protection for aliens lawfully within a state's territory

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againstarbitrary expulsion; the prohibition against arbitrary interference with privacy,

family,home, correspondence; freedom of thought, conscience, religion, opinion or
expression,association and peaceful assembly; protection for the family and children; the
right toparticipate in public affairs; the prohibition of discrimination; and the right of
minorities toenjoy their own culture, practice their religion, and to use their own language.
Theinstrument has also established a Human Rights Committee (HRC) having competence
inthree matters:
a) To comment on reports that are to be submitted by the state parties on the
measuresthey have adopted to comply with their obligations under the covenant;
b) To investigate complaints by state parties of failures by other state parties to fulfil
their obligations under the covenant;
c) Under the optional protocol, to investigate complaints from victims of
suchfailures."
OPTIONAL PROTOCOLS
A Protocol is a treaty which amends, supplements or clarifies a multilateral treaty. It
isa supplementary treaty to the covenants. ICCPR has two optional protocols. The
firstoptional protocol created a human rights committee which any individual who lives in
anymember state may submit a complaint. The committee considers it and gives its ruling.
Thisprotocol entered force on 23rd march 1976. The second optional protocol abolishes the
deathpenalty but states are permitted to make reservations. This protocol entered into force
on11th July 1991.
The ICESCR has one optional protocol It allows the states to recognize the
jurisdictionof the committee on Economic, Social and Cultural Rights to consider complaints
made byindividuals. This optional protocol of ICESCR was adopted on 10th December 2008.
It hasnot yet entered in force.
THE OPTIONAL PROTOCOL TO THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS

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The Optional Protocol entered into force on March 23, 1976. The purpose of
theOptional Protocol as mentioned in the text of the document states that, in order to
achievethe purposes of the Covenant on Civil and Political Rights and the implementation of
itsprovisions it would be appropriate to enable the Human Rights Committee to receive
andconsider communications from individuals claiming to be victims of violations of any
ofthe rights set forth in the Covenant. Since then the Human Rights Committee has
adoptedrules of procedure and carried out a substantial volume of work including
thoroughexamination of reports of many states, and the consideration of a number of
complaints under the Optional Protocol. Any party may refer an alleged breach of the
Convention byanother party to the Human Rights Committee. In addition, parties may by
declarationrecognize the competence of the Human Rights Committee to receive petitions
from anyperson, group of persons, non-governmental organizations, etc, regarding violation
of therights provided in the Convention.
The foregoing discussion on the Universal Declaration of Human Rights,
theInternational Covenant on Civil and Political Rights and the International Covenant
onEconomic, Social and Cultural Rights, revealed that the rights provided in these
documentsare at the international level. However, in each nation or state, these rights are
foundenumerated in their respective Constitutions known mostly as fundamental
rights.Fundamental rights included in the Constitutions of various countries guarantee
individualand minority rights.
THE ROLE OF UN SPECIALIZED AGENCIES IN PROMOTING
HUMAN RIGHTS
The United Nations, with its subsidiary organ ECOSOC, coordinated a
fewspecialized agencies, which are entrusted with to the formulation and observation
ofeconomic, social and cultural rights and creation of the conditions needed for
theirenjoyment. The important specialized agencies are the following:
UNESCO

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United Nations Educational, Scientific and Cultural Organization was recognized

asan agency of the United Nations by virtue of an agreement of December 14,1946.
Itsconstitution was initially drafted by the Great Britain and France and later adopted by
43members of the UN.
Functions
Article 1 of the constitution of UNESCO lays down the functions of theorganization. It states
that UNESCO shall contribute to peace and security by promotingcollaboration among the
nations through education science and culture in order to universalrespect for justice for the
rule of law and for the human rights and fundamental freedomswhich are affirmed by the
people of the world, without distinction of race, sex, language orreligion by the charter of the
United Nations. It has mainly three functions 1 .Educationalfunctions 2. Research and
Training in basic sciences 3. Social and cultural development.UNESCO has played an active
part in disseminating knowledge about the UniversalDeclaration of Human Rights though
exhibitions and other method.

ILO
The international Labour Organization was formed on April 11, 1919. It
wasdedicated to improving living and working condition of workers throughout the
world,During the inter war period it conducted thousands of studies, held hundreds of
conferencesand adopted convention for reduction of working hours, holidays with
pay ,sickness andold age insurance , freedom of association, forbidding network for women
and their employment in mines in 1946 ILO became the first specialized agency of the
UnitedNations.
Functions:-
The major functions of the ILO are: - 1.Raising the standard of the workers. 2.
Preventionof unemployment. 3. Provision for social security. 4. Improvement in the
workingcondition of the merchant sailors. 5. Right of Organization. 6. Safety regulation. 7.
Womenwelfare 8.welfare of children 9. Technical Assistance 10. Improvement of the
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workingcondition of the Agricultural labour 11. Promotion of the co-operatives 12. Research
andeducation.
WHO
An international health conference held in June 1946, set up WHO which came in
toexistence in September 1946. The basic purpose of WHO is the attainment of all peoples
ofthe world the highest possible level of health. WHO defined health as “a state of
completephysical, mental and social wellbeing and not merely the absence of disease or
infirmity”.
Health is the fundamental right of every human being and is considered necessary for
theattainment of peace and security. Geneva is the headquarters of the WHO.
Functions: -The followings are the main functions of the WHO.1. Preventing the areas
ofdisease and confining it in the boundaries of the state.2. Curing the disease after it
hasspread. 3. Preventing the diseases, 4.Establishment of an environment promoting
goodhealth
FAO
The Food and Agricultural Organization was formed in 1945 to promote international
cooperationin the economic and social field. It tries to find out means for developing
andmaintaining adequate food supply by encouraging use of modern tools and
methods,conserving existing food supplies, searching new sources etc.
Functions:-It has international functions, technical functions , combating various
animaland plant diseases, increase of production , check on children’s diseases,
educationalinformational activities.
UNICEF
The United Nations International Children’s Emergency Fund (UNICEF) was formed
inDecember 1956.
Functions:-

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The fund was placed a ferment footing in 1953. Its activities were also expanded to
includeemergency aid in areas affected by flood, droughts, wars and other disasters. The
UNICEFis a trustee between the donor and the beneficiaries. It gives aids to the needy
memberswithout any discrimination. It provides supplementary meals for millions of
children
INTERNATIONAL MONITORING BODIES
Indeed, the United Nations does not have the power to enforce even the most
basicprinciples of human rights. Therefore, the effective implementation of human
rightsinstruments requires a strong commitment by all concerned, primarily by the
governmentthemselves. The United Nation has set-up a complex but effective system whose
aim is theuniversal implementation of internationally accepted human right standards. This
task iscarried out by the Commission on human rights and the human rights bodies set up
underthe covenants and other international conventions, notably the human right committees.
In international level, in order to ensure that the rights contained in the various
areimplemented by the state parties, an effective enforcement mechanism should be in
place.The enforcement of human rights has been very controversial and even resisted by
variousgovernments. It is in this context that International Monitoring Bodies assume
significanceas theory have been created for the purpose of the
development ,monitoring ,implementation and enforcement of international norms. There are
two distinct kinds ofenforcement machinery under the UN. They are;
1. Treaty based organs and
2. Charter based organs
1 TREATY BASED BODIES
Seven principal human rights treaties have been adopted within the UN framework.
Foreach of these treaties, committees have been established for felicitation
theirimplementation. These monitoring bodies meet regularly to examine state reports in
whichgovernments explain what legislative, administrative or judicial measures they
haveadopted to comply with the obligations undertaken pursuant to the relevant conventions.

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These reports are carefully scrutinized by independent and outstanding experts and
aregiven more and more publicity by an alternative media. They go through the
generalassembly and determine the adoption of resolutions requesting urgent action by
memberstates. The end result of this process is often the corresponding modification of
nationallegislations and practices.
1. ICCPR --------- Human Rights Committee
2. ICESCR ------ Committee on Economic Social and Cultural Rights
3. CERD --- Committee on the Elimination of Racial discrimination
4. CERAW ---- Committee on the elimination of all forms of discriminationagainst
women
5. CAT ----- Committee Against Torture.
6.CRE ----- Committee on the Rights of the Child
7. International Convention on the Protection of the Rights of all Migrant Workers
andmembers of their Families --------Committee on the protection of the right of all
Migrantworkers and members of their families
These committees are composed of independent experts who are of
recognizedcompetence in the field of human rights and are elected to their positions by the
state partiesto the relevant conventions. The members are to function in their personal
capacity in anindependent and impartial mannerOf the seven treaty based bodies , five can
receive complaints from individualsconcerning violation of rights contain in the respective
treaty, They are the committeeagainst torture, Human Rights Committee, Committee on the
elimination of racialdiscrimination, Committee on the Elimination of all forms of
discrimination against womenand the Committee on the Protection Rights of all Migrant
Workers and Members of thefamilies
HUMAN RIGHTS COMMITTEE
Human rights committee was established in1976 to supervise state compliance with
theInternational Covenant on Civil and Political Rights . The functions of HRC
includeconsidering the periodic reports submitted by state parties to assess compliance by

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making‘concluding observations’ and developing General Commence which address specific

rulesof issues of the ICCPR. State parties may recognize the competence of the committee
tohear interstate complaints. The optional Protocol to the civil and Political rights,
Covenanthas extended the power of the HRC the competence to receive and consider
individualcomplaints. The HRC has adopted General Comments on the Rights of the
Child,discrimination and other such issues.
COMMITTEE ON ECONOMIC SOCIAL AND CULTURAL RIGHTS
In 1986, the United Nations Economic and Social Council established committee
onEconomic, Social and Cultural Rights for the purpose of monitoring the implementation
ofthe Covenant. The functions of the CESCR includes considering the periodic
reportssubmitted by state parties to assess compliance and providing ‘concluding
observations’,developing general comments in order to interpret rights and compliance
standards andholding discussions to promote improved implementation of CESCR
obligations. In theGeneral Comments of the CESCR, diverse issue have been addressed,
ranging from issuesrelating to non-discrimination and inadequate housing to issues
concerning the rights of thepeople with disabilities and economic, social and cultural rights
of the people.
COMMITTEE ON THE ELIMINATION OF RACIAL DISCREMINATION
The Committee on the Elimination of Racial Discrimination (CERD) was
establishedin 1969 to monitor state compliance to the Convention on the Elimination of All
Forms ofRacial Discrimination.
The functions of the CERD include considering the periodic report s submitted by
thestate parties to assess compliance and making ‘concluding observations ‘. CERD may
alsoconsider interstate communications and individual complaints. The committee
alsodevelops ‘General Recommendations’
THE COMMITTEE ON THE ELIMINATION OF THE DISCRIMINAITON
AGAINST WOMEN

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The Committee on the Elimination of Discrimination Against Women was

established tomonitor the implementation of the Convention on the Elimination of All Forms
ofDiscrimination Against Women (CEDAW) The functions include considering the
periodicreports submitted by State Parties to assess compliance and making
‘concludingobservations’. Under the optional protocol which entered in to force on 22
December 2000,the committee considers the complaints of individuals or groups of
individuals arising under CEDAW. Under the protocol, the committee has been empowered
to make confidentialinquiries into grave or systematic violations of those rights by a state
party. It also issuesGeneral Recommendations, observations and suggestions.
THE COMMITTEE AGAINST TORTURE
The committee against torture was established in 1987 to monitor the implication
ofthe convention against Torture or Punishment .The functions of the committee
includeexamining state parties reports and making concluding observations, receiving
andconsidering individual communications concerning violations of the convention
andenquiring into allied systematic torture in states that have accepted the procedure
underArticle 20.
COMMMIITTEE ON THE RIGHT OF THE CHILD
The committee on the Rights of the Child has been monitoring the convention on
theright of the Child since 1991. The functions of the committee includes, examinations
ofstate reports submitted and the making of concluding observations , the issuing of
generalrecommendations and conducting general discussions on a particular article of
theChildren’s Convention or f a specific issue.
The Committee on the protection of the rights of all Migrant Workers and Members
oftheir Families. The international convention on the Protection of the Rights of All Migrant
Workers and Members of their Families was adopted in1990 and entered into force on 1 stJuly
2003. The functions of the committee include examine state reports submitted andmaking
concluding observations and also issuing general recommendations.
2. CHARTER BASED BODIES

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There are two kinds of charter based organs. The first group consist of those
principalbodies whose creation has been directly mandated by the UN Charter. They are;-
1. The Security Council
2. The General assembly
3. The secretariat
4. The commission on Human Rights
5. The commission on the status of the women
Charter bodies usually reach a final decision on the matters related to human rights
throughthe mechanism of voting and generally pass resolutions documenting such decisions.
Sincethese resolutions reflect international public opinion, nations are often pressured
intocomplying with them to secure their image at international forums.
THE SECURITY COUNCIL
The Security Council has the primary responsibility for the maintenance
ofinternational peace and security. The problems of peace keeping, peacemaking and
peacebuilding inevitably affect human rights outcomes and humanitarian law. The
SecurityCouncil is the only UN body with any real enforcement potential. Therefore it has a
veryimportant role in successfully ensuing the implementation of those human rights
resolutionsthat have a bearing upon international peace and security.
In the 1970’s, the Security Council played a key role in enforcing the fulfilment of
Human Right standards in South Africa, The Nations continuing practice of
Apartheidviolated international law in a multitude of ways , and the security council
successfullyendeavoured to force it into compliance. Chiefly it imposed a mandatory arms
embargo andapplied consistent pressure against the state. Ultimately South Africa conceded
andapartheid was abolished
THE GENERAL ASSEMBLY
The General Assembly has also adopted numerous declarations and conventions
onmatters relating to human rights and has mandated several operations in their interest,

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suchad in Haiti and Guatemala. The Third Committee of the General Assembly deals the
items related to human rights.
SECRETARIAT
The secretariat is primarily concerned with the administrative work of the UN.
TheOffice of the High Commissioner for Human Rights in Geneva is a part of the
Secretariat, isresponsible for the overall promotion and protection of human rights. The
office of theHigh Commissioner for Human Rights has three branches. The Research and
Right toDevelopment Branch is concerned with human right policy development and
research ofOHCHR and related human right bodies. The Support Service Branch provides
support toboth the Treaty and Charter based human right bodies and organs. The Activity
andProgrammes Branch, supports special procedure relating to situations of human rights
inparticular countries.
UN COMMISSION ON HUMAN RIGHTS
The UN commission on human rights was established in1946and is a subsidiarybody
of the Economic and social council (ECOSOC) At present it consist of
53membergovernments elected by ECOSOC for three year term. The commission deals with
the areaof human rights more directly than any other charter based body. Its jurisdiction of
humanrights protection was expanded by ECOSOC in1970’S to extend the entire world.
Since itsincorporation the commission has influenced international human right standards. It
madecontribution to the Universal Declaration of Human Rights in 1948 as well as
theInternational Covenant on Civil and Political Rights and the International Covenant on
Civiland Political Rights. It has further, developed norms and standards relating to civil
andpolitical rights, the right to development, the rights of minorities and indigenous people
andeconomic social and cultural rights. The commission also monitors the implementation
ofthe standards outlined. It has the authority to use any number of permanent or
specialprocedures while examining a specific human rights issue.
THE COMMISSION ON THE STATUS OF THE WOMEN

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The commission on the status of woman was established in 1946 It report toECOSOC
on policies aimed at promoting women’s rights in the socio, economic, politicaland
educational field . It play a significant role both in standard setting as well as in
thedevelopment of further instruments It consists of 45 govt. representatives elected for
aperiod of four years, who meet for eight days every year. The commissions mandateincludes
follow-up to the Platform of Action adopted by the Fourth World Conference onWomen,
held in Beijing in 1995. In 1999 it completed the task of drafting an OptionalProtocol that
enabled individual complaint’s to be lodged under the Convention on theElimination of All
forms of Discrimination against Women.
VIENNA CONVENTION
The General Assembly, in 1990, decided to organize a Second World Conference on
Human Rights. The conference convened in 1993 in Vienna with the followingobjectives
a). To review and access the progress that has been made in the field of human rights
since the adoption of the UDHR, and also to identify obstacles that hinder progress in the
area of human rights;
b). to examine the relationship between development and the enjoyment of economic
socialand cultural rights as well as civil and political rights;
c).to examine ways and means to improve the implementation of existing human
rightstandards and instruments
d). to evaluate the effectiveness of the methods and mechanisms used by the united
nationsin the field of human rights;
e). to formulate concrete recommendation for improving the effectiveness of United
Nations activities and mechanisms in the field of human rights
f). to make recommendations for ensuring the necessary financial and other resources
forUnited Nations activities in the promotion and protection of human rights and
fundamentalfreedoms.
Vienna conference, in addition, recommended the creation of the post of
UnitedNations High Commissioner for Human Rights. The General Assembly welcomed

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theappointment of the United Nations High Commissioner for Human Rights on 20 th

December 1993. His function, inter alia, will be to coordinate relevant United
Nationseducation and public information programs in the fields of human rights.

***

UNIT III
CIVIL AND POLITICAL RIGHTS – INTERNATIONAL
INSTRUMENTS – PART III OF THE CONSTITUTION OF INDIA
CIVIL AND POLITICAL RIGHTS ANDFUNDAMENTAL RIGHTS
SYNOPSIS
 Civil and Political Rights under UDHR
 International covenants on civil and Political Rights, 1966
 Optional Protocol to ICCPR
 UDHR Impact on Fundamental Rights
 Judicial Interpretation of UDHR
The aspirations of the people have found expression in the IndianConstitution, which
enacted a nearly complete catalogue of HumanRights around the time when the international
scene was witnessing theframing of Universal Declaration of Human Rights. The
FundamentalRights, Directive Principles along with the promises made under thePreamble
and other provisions of the constitution, lay the emphasis onmaking the Indian Constitution a
viable instrument of the Indian people’ssalvation and to secure the basic minimum human
rights, as contemplatedas the founding stones of good governance.

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Thus in the backdrop of the Gandhian Humanism and Nehru’sscientific temper the
Constitution enacted and adopted in 1950contributed in ushering a new legal and
constitutional philosophyembodying ideals of liberty, equality and human dignity. The
Fundamental Rights in the Constitution constitute the Magna Carta ofindividual liberty and
human rights.
The rights guaranteed and provided in the Constitution are requiredto be in
conformity with the Covenant on Civil and Political Rights andthe Covenant on Economic,
Social and Cultural Rights in the view of thefact that India has become a party to these
covenants by ratifying themand as these Covenants are a direct consequence and follow-up
of theUniversal Declaration of Human Rights, it is this aspect of theDeclaration which has
been the guiding force and the mentor of HumanRights incorporation in the Constitution of
India.
The declaration of Fundamental Rights in the Constitution servesas a reminder to the
Government in power that certain liberties andfreedoms essential for all the people and
assured to them by theFundament Law of the land are to be respected. The emphasis on
theentire scheme of the Constitution under the heading of the Preamble, theFundament
Rights and the Directive Principles is on the building of anEgalitarian Society and on the
concept of Socio-Economic Justice. Thefundamental Rights and the Directive Principles
together constitute theheart and soul of the Indian Constitution.
I. CIVIL AND POLITICAL RIGHTS UNDER UDHR
Universal Declaration of Human Rights Adopted and Proclaimedby General
Assembly Resolution 217A(III) of 10th December, 1948. The declaration contains a
preamble and 30 Article. Articles 2 to 21 deal withcivil and political rights and 22 to 27 of
the declaration deal withEconomic, Social and Cultural Rights. Civil and Political rights are
asfollow:
 Right to free and equal in Dignity and Rights (Art 1)
 Right to prohibition of Discrimination (Art. 2)
 Right to life, liberty, and security of Person (Art. 3)

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 Right to prohibition of slavery and servitude (Art. 5)

 Right to prohibition of Torture (Art. 5)
 Right to Recognition as Person before the Law (Art. 6)
 Right to Equality before the Law (Art. 7)
 Right to an effective remedy (Art. 8)
 Right to prohibition of Arbitrary Arrest (Art. 9)
 Right to fair trial (Art. 10)
 Right to Presumption of Innocence and no retroactive application of Penal Laws (Art.
11)
 Right to Privacy (Art. 12)
 Right to Freedom of Movement, exit, and Re-entry (Art. 13).
 Right to Asylum (Art 14)
 Right to Nationality (Art. 15)
 Right to marry and Family life (Art. 16)
 Right to Property (Art. 17)
 Right to freedom of thought conscience and religion (Art. 18)
 Right to freedom of opinion and expression (Art. 19)
 Right to freedom of Assembly and Association (Art. 20)
 Right to Participation in Government (Art. 21)
II. INTERNATIONAL COVENANTS ON CIVIL ANDPOLITICAL
RIGHTS (ICCPR) 1966
(i) History of ICCPR
The International Covenant on civil and Political Rights (ICCPR)is a multilateral
treaty adopted by the United Nations General Assemblyon 16 December 1966 and opened
for signature at New York on 19December 1966. It commits its parties to respect the civil
and politicalrights of individuals, including the right of self-determination, right tolife,
freedom of religion, freedom of speech, freedom of assembly,electoral rights and rights to

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due process and a fair trial. The Covenantelaborates further the civil and political rights and
freedoms listed in theUniversal Declaration of Human Rights.
(ii) Key Civil and Political Rights Recognized by ICCPR
 Right to Life
 Protection against Arbitrary Detention/Arrest, Slavery, Torture and Inhuman
Treatment
 Equality before the Law and Non-discriminatory protection of the Law
 Freedom of Thought, Conscience, Religion, Movement & Association
 Right to participate in the political process
 Minority Rights
(iii) Analysis of the ICCPR
International Covenants on Civil and Political Rights adopted andopened for
signature, ratification and accession by General AssemblyResolution 2200A (XXI) of 16
December, 1966.It commits its member states to defend the right to life andstipulates that no
individual can be subjected to torture, enslavement,forced labour and arbitrary detection or
be restricted from such freedomsas movement, expression and association.
The ICCPR entry into force on 23 March, 1976 and India accededit on 10 April, 1979. The
ICCPR contains a preamble and 53 articleswhich divided into six major parts.
Preamble of the ICCPR
The States parties to the present Covenant, Considering that, inaccordance with the
principles proclaimed in the Charter of the UnitedNations, recognition of the inherent dignity
and of the equal andinalienable rights of all members of the human family is the foundation
offreedom, justice and peace in the world, Recognizing that these rightsderive from the
inherent dignity of the human person, Recognizing that,in accordance with the Universal
Declaration of Human Rights, the idealof free human beings enjoying civil and political
freedom and freedomfrom fear and want can only be achieved if conditions are
createdwhereby everyone may enjoy his civil and political rights, as well as hiseconomic,
social and cultural rights, Considering the obligation of Statesunder the Charter of the United
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Nations to promote universal respect for,and observance of, human rights and freedoms,
Realizing that theindividual, having duties to other individuals and to the community towhich
he belongs, is under a responsibility to strive for the promotion andobservance of the rights
recognized in the present Covenant,
Part I: recognizes the right of all people to self-determination, includingthe right to ‘freely
determine their political status, pursue their economic,social and cultural goals, and manage
and dispose off their ownresources. It recognizes the right of people not to be deprived of
means ofsubsistence, and imposes an obligation on those parties still responsiblefor non-self
governing and trust territories (colonies) to encourage andrespect their self-determination.
Article 1
1. All peoples have the right of self-determination, By virture of thatright they free
determine their political status and freely pursuetheir economic, social and cultural
development.
2. All peoples may, for their own ends, freely dispose of their naturalwealth and
resources without prejudice to any obligations arisingout of international economic co-
operation, based upon theprinciple of mutual benefit, and international law. In no case, may
apeople be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including, those havingresponsibility
for the administration of non-self-governing andTrust Territories, shall promote the
realization of the right of selfdetermination, and shall respect that right, in conformity with
theprovisions of the Charter of the United Nations.
Part-II. (Articles 2-5) obliges parties to legislate where necessary to giveeffect to the rights
recognized in the covenant, and to provide an effectivelegal remedy for any violation of
those rights. It also requires the rightsbe recognized “without distinction of any kind, such as
race, colour, sex,language, religion, political or other opinion, national or social
origin,property, birth or other status,” and to ensure that they are enjoyedequally by women.
The right can only be limited “in time of public emergency whichthreatens the life of
the nation”, and even then no derogation is permittedfrom the rights to life, freedom from
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torture and slavery, the freedomfrom retrospective law, the right to personhood, and freedom
of thought,conscience and religion.
Article 2
1. Each State party to the present Covenant undertakes to respect andto ensure to all
individuals within its territory and subject to itsjurisdiction the rights recognized in the
present Covenant, withoutdistinction of any kind, such as race, colour, sex, language,religion,
political or other opinion, national or social origin,property, birth or other status.
2. Where not already provided for by existing legislative or othermeasures, each State
party to the present Covenant undertakes totake the necessary steps, in accordance with its
constitutionalprocesses and with the provisions of the present Covenant, to adoptsuch
legislative or other measures as may be necessary to giveeffect to the rights recognized in the
present Covenant.
3. Each State party to the present Covenant undertakes:
a) To ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has been committed
by persons acting in an official capacity;
b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and to
develop the possibilities of judicial remedy;
c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 3
The States Parties to the present Covenant undertake to ensure theequal right of men
and women to the enjoyment of all civil and politicalrights set forth in the present Covenant.
Article 4
1. In time of public emergency which threatens the life of the national and the existence
of which is officially proclaimed, the States Parties to the present Covenant may take
measures derogating from their obligations under the present Covenant to the extent
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strictly required by the exigencies of the situation provided that such measures are not
inconsistent with their other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex, language, religion or social
origin.
2. No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be
made under this provision.
3. Any State Party to the present covenant availing itself of the right of derogation shall
immediately inform the other States Parties to the present Covenant, through the
intermediary of the Secretary General of the United Nations, of the provisions from
which it has derogated and of the reasons by which it was actuated. A further
communication shall be made, through the same intermediary, on the date on which it
terminates such derogation.
Article 5
1. Nothing in the present Covenant may be interpreted as implying for any State, group
or person any right to engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms recognized herein or at their limitation
to a greater extent than is provided for in the present Covenant.
Part III (Articles 6-27), often described as the heart of the Covenant, itlists the substantive
rights and fundamental freedoms guaranteed by theConvention. These provisions also
stipulate the narrow confines withinwhich the death penalty may legitimately be imposed in
States partieswhere that penalty has not been abolished.
Specified prohibitions are set out concerning torture, unauthorizedmedical
experimentation, slavery and forced labour. The rights of aperson in the context of
deprivation of liberty, commonly by arrest, and indetention are also covered.
Article 6
1. Every human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.

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2. In countries which have not abolished the death penalty, sentence of death may be
imposed only for the most serious crimes in accordance with the law in force at the
time of the commission of the crime and not contrary to the provisions of the present
Covenant and to the Convention on the Prevention and Punishment of the Crime of
Genocide. This penalty can only be carried out pursuant to a final judgment rendered
by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that
nothing in this article shall authorize any State party to the present Covenant to
derogate in any way from any obligation assumed under the provisions of the
Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the
sentence. Amnesty, pardon or commutation of the sentence of death may be granted
in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below 18
years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State party to the present Covenant.
Article 7
No one shall be subjected to torture or to cruel, inhuman ordegrading treatment or
punishment. In particular, no one shall besubjected without his free consent to medical or
scientificexperimentation.
Article 8
1. No one shall be held in slavery; slavery and the slave trade in all their forms shall be
prohibited.
2. No one shall be held in servitude.
3. (a) No one shall be required to perform forced or compulsory labour;

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(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment
with hard labour may be imposed as a punishment for a crime, the performance of
hard labour in pursuance of a sentence to such punishment by a competent court;
(c) For the purpose of this paragraph the term “forced or compulsory labour” shall not
include:
i. Any work or service, not referred to in subparagraph (b), normally required of
a person who is under detention in consequence of a lawful order of a court, or
of a person during conditional release from such detention;
ii. Any service of a military character and, in countries where conscientious
objection is recognized, any national service required by law of conscientious
objectors;
iii. Any service exacted in cases of emergency or calamity threatening the life or
well-being of the community;
iv. Any work or service which forms part of normal civil obligations.
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his
arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a
judge or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release. It shall not be the general rule
that persons awaiting trial shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of the judicial proceedings, and,
should occasion arise, for execution of the judgment.

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4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.
Article 10
1. All persons deprived of their liberty shall be treated with humanity and with respect
for the inherent dignity of the human person.
(a) Accused persons shall, save in exceptional circumstances, be segregated from
convicted persons and shall be subject to separate treatment appropriate their
status as un-convicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as
speedily as possible for adjudication.
2. The penitentiary system shall comprise treatment of prisoners the essential aim of
which shall be their reformation and social rehabilitation. Juvenile offenders shall be
segregated from adults and be accorded treatment appropriate to their age and legal
status.
Article 11
No one shall be imprisoned merely on the ground of inability tofulfil a contractual
obligation.
Article 12
1. 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.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public order
(order public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.
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4. No one shall be arbitrarily deprived of the right to enter his own country.
Article 13
An alien lawfully in the territory of a State party to the presentCovenant may be
expelled therefrom only in pursuance of a decisionreached in accordance with law and shall,
except where compellingreasons of national security otherwise require, be allowed to submit
thereasons against his expulsion and to have his case reviewed by, and berepresented for the
purpose before, the competent authority or a person orpersons especially designated by the
competent authority.
Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law. The press and the public may be excluded from
all or part of a trial for reasons of morals, public order (order public) or national
security in a democratic society, or when the interest of the private lives of the parties
so requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but any
judgement rendered in a criminal case or in a suit at law shall be made public except
where the interest of juvenile persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed
innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to
the following minimum guarantees, in full equality:
a) To be informed promptly and in detail in a language which he understands of the
nature and cause of the charge against him;
b) To have adequate time and facilities for the preparation of his defence and to
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c) To be tried without undue delay;

d) To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance,
of this right; and to have legal assistance assigned to him, in any case where the
interests of justice so require, and without payment by him in any such case if he does
not have sufficient means to pay for it;
e) To examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him;
f) To have the free assistance of an interpreter if he cannot understand or speak the
language used in court;Not to be compelled to testify against himself or to confess
guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of
their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence
being reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the ground
that a new or newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment as a result of such
conviction shall be compensated according to law, unless it is proved that the
nondisclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has
already been finally convicted or acquitted in accordance with the law and penal
procedure of each country.
Article 15
1. No one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence, under national or international law, at the

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time when it was committed. Nor shall a heavier penalty be imposed than the one that
was applicable at the time when the criminal offence was committed. If, subsequent
to the commission of the offence, provision is made by law for the imposition of the
lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any
act or omission which, at the time when it was committed, was criminal according to
the general principles of law recognized by the community of nations.
Article 16
Everyone shall have the right to recognition everywhere as aperson before the law.
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
2. Everyone has the right to the protection of the law against such interference or
attacks.
Article 18
1. Everyone shall have the right to freedom of thought, conscience and religion. This
right shall include freedom to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to
adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations
as are prescribed by law and are necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others.
4. The States parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to ensure the religious and moral
education of their children in conformity with their own convictions.
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Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:
4. For respect of the rights or reputations of others;
5. For the protection of national security or of public order (order, public), or of public
health or morals.
Article 20
1. Any propaganda for war shall be prohibited by law
2. Any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.
Article 21
The right of peaceful assembly shall be recognized. No restrictionsmay be placed on
the exercise of this right other than those imposed inconformity with the law and which are
necessary in a democratic societyin the interests of national security or public safety, public
order (order public), the protection of public health or morals or the protection of therights
and freedoms of others.
Article 22
1. Everyone 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.
2. No restrictions may be placed on the exercise of this right other than those which are
prescribed by law and which are necessary in a democratic society in the interests of
national security or public safety, public order (order public), the protection of public
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health or morals or the protection of the rights and freedoms of others. This article
shall not prevent the imposition of lawful restrictions on members of the armed forces
and of the police in their exercise of this right.
3. Nothing in this article shall authorize States 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 for in that
Convention.
Article 23
1. The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall
be recognized.
3. No marriage shall be entered into without the free and full consent of the intending
spouses.
4. States parties to the present Covenant shall take appropriate steps to ensure equality
of rights and responsibilities of spouses as to marriage, during marriage and at its
dissolution. In the case of dissolution, provision shall be made for the necessary
protection of any children.
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language,
religion, national or social origin, property or birth, the right to such measures of
protection as are required by his status as a minor, on the part of his family, society
and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
Article 25

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Every citizen shall have the right and the opportunity, without anyof the distinctions
mentioned in article 2 and without unreasonablerestrictions:
(a) To take part in the conduct of public affairs, directly orthrough freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections whichshall be by universal
and equal suffrage and shall be held bysecret ballot, guaranteeing the free expression of the
will of the electors;
(c) To have access, on general terms of equality, to publicservice in his country.
Article 26
All persons are equal before the law and are entitled without anydiscrimination to the
equal protection of the law. In this respect, the lawshall prohibit any discrimination and
guarantee to all persons equal andeffective protection against discrimination on any ground
such as race,colour, sex, language, religion, political or other opinion, national orsocial
origin, property, birth or other status.
Article 27
In those States in which ethnic, religious or linguistic minoritiesexist, persons
belonging to such minorities shall not be denied the right,in community with the other
members of their group, to enjoy their ownculture, to profess and practice their own religion,
or to use their ownlanguage.
Part IV (Articles 28-45) – governs the establishment and operation ofthe Human Rights
committee, the body of independent experts thatmonitors implementation of the International
Covenant on civil andPolitical Rights by its State parties. It also allows parties to recognize
thecompetence of the Committee to resolve disputes between parties on theimplementation
of the Covenant (Articles 41 and 42).
Article 28 –
1. There shall be established a Human Rights Committee (hereafter referred to in the
present Covenant as the Committee). It shall consist of 18 members and shall carry
out the functions hereinafter provided.
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2. The Committee shall be composed of nationals of the States parties to the present
Covenant who shall be persons of high moral character and recognized competence in
the field of human rights, consideration being given to the usefulness of the
participation of some persons having legal experience.
3. The members of the Committee shall be elected and shall serve in their personal
capacity.
Article 29
1. The members of the Committee shall be elected by secret ballot from a list of persons
possessing the qualifications prescribed in article 28 and nominated for the purpose
by the States parties to the present Covenant.
2. Each State party to the present Covenant may nominate not more than two persons.
These persons shall be nationals of the nominating State.
3. A person shall be eligible for re-nomination.
Article 30
1. The initial election shall be held no later than six months after the date of the entry
into force of the present Covenant.
2. At least four months before the date of each election to the Committee, other than an
election to fill a vacancy declared in accordance with article 34, the Secretary-
General of the United Nations shall address a written invitation to the States parties to
the present Covenant to submit their nominations for membership of the Committee
within three months.
3. The Secretary-General of the United Nations shall prepare a list in alphabetical order
of all the persons thus nominated, with an indication of the States parties which have
nominated them, and shall submit it to the States parties to the present Covenant no
later than one month before the date of each election.
4. Elections of the members of the Committee shall be held at a meeting of the States
parties to the present Covenant convened by the Secretary-General of the United

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Nations at the Headquarters of the United Nations. At that meeting, for which two
thirds of the
5. States parties to the present Covenant shall constitute a quorum, the persons elected to
the Committee shall be those nominees who obtain the largest number of votes and an
absolute majority of the votes of the representatives of States parties present and
voting.
Article 31
1. The Committee may not include more than one national of the same State.
2. In the election of the Committee, consideration shall be given to equitable
geographical distribution of membership and to the representation of the different
forms of civilization and of the principal legal systems.
Article 32
1. The members of the Committee shall be elected for a term of four years. They shall
be eligible for re-election if denominated. However, the terms of nine of the members
elected at the first election shall expire at the end of two years; immediately after the
first election, the names of these nine members shall be chosen by lot by the
Chairman of the meeting referred to in article 30, paragraph 4.
2. Elections at the expiry of office shall be held in accordance with the preceding
articles of this part of the present Covenant.
Article 33
1. If, in the unanimous opinion of the other members, a member of the Committee has
ceased to carry out his functions for any cause other than absence of a temporary
character, the Chairman of the Committee shall notify the Secretary-General of the
United Nations, who shall then declare the seat of that member to be vacant.
2. In the event of the death or the resignation of a member of the Committee, the
Chairman shall immediately notify the Secretary- General of the United Nations, who
shall declare the seat vacant from the date of death or the date on which the
resignation takes effect.
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Article 34
1. When a vacancy is declared in accordance with article 33 and if the term of office of
the member to be replaced does not expire within six months of the declaration of the
vacancy, the Secretary-General of the United Nations shall notify each of the States
parties to the present Covenant, which may within two months submit nominations in
accordance with article 29 for the purpose of filling the vacancy.
2. The Secretary-General of the United Nations shall prepare a list in alphabetical order
of the persons thus nominated and shall submit it to 44 the States parties to the
present Covenant. The election to fill the vacancy shall then take place in accordance
with the relevant provisions of this part of the present Covenant.
3. A member of the Committee elected to fill a vacancy declared in accordance with
article 33 shall hold office for the remainder of the term of the member who vacated
the seat on the Committee under the provisions of that article.
Article 35
The members of the Committee shall, with the approval of theGeneral Assembly of
the United Nations, receive emoluments fromUnited Nations resources on such terms and
conditions as the GeneralAssembly may decide, having regard to the importance of
theCommittee’s responsibilities.
Article 36
The Secretary-General of the United Nations shall provide thenecessary staff and
facilities for the effective performance of thefunctions of the Committee under the present
Covenant.
Article 37
1. The Secretary-General of the United Nations shall convene the initial meeting of the
Committee at the Headquarters of the United Nations.
2. After its initial meeting, the Committee shall meet at such times as shall be provided
in its rules of procedure.

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3. The Committee shall normally meet at the Headquarters of the United Nations or at
the United Nations Office at Geneva.
Article 38
Every member of the Committee shall, before taking up his duties,make a solemn
declaration in open committee that he will perform hisfunctions impartially and
conscientiously.
Article 39
1. The Committee shall elect its officers for a term of two years. They may be re-
elected.
2. The Committee shall establish its own rules of procedure, but these rules shall
provide, inter alia, that:
a) Twelve members shall constitute a quorum;
b) Decisions of the Committee shall be made by a majority vote of the members present.
Article 40
1. The States parties to the present Covenant undertake to submitreports on the
measures they have adopted which give effect to therights recognized herein and on the
progress made in the enjoymentof those rights:
(a) Within one year of the entry into force of the presentCovenant for the States
parties concerned;
(b) Thereafter whenever the Committee so requests.
2. All reports shall be submitted to the Secretary-General of theUnited Nations, who
shall transmit them to the Committee forconsideration. Reports shall indicate the factors and
difficulties, ifany, affecting the implementation of the present Covenant.
3. The Secretary-General of the United Nations may, afterconsultation with the
Committee, transmit to the specializedagencies concerned copies of such parts of the reports
as may fallwithin their field of competence.
4. The Committee shall study the reports submitted by the Statesparties to the present
Covenant. It shall transmit its reports, andsuch general comments as it may consider
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appropriate, to the Statesparties.The Committee may also transmit to the Economic and
SocialCouncil these comments along with the copies of the reports it hasreceived from States
parties to the present Covenant.
5. The States parties to the present Covenant may submit to theCommittee
observations on any comments that may be made inaccordance with paragraph 4 of this
article.
Article 41
1. A State party to the present Covenant may at any time declareunder this article that
it recognizes the competence of theCommittee to receive and consider communications to the
effectthat a State party claims that another State party is not fulfilling itsobligations under the
present Covenant. Communications underthis article may be received and considered only if
submitted by aState party which has made a declaration recognizing in regard toitself the
competence of the Committee. No communication shallbe received by the Committee if it
concerns a State party which hasnot made such a declaration. Communications received
under thisarticle shall be dealt with in accordance with the followingprocedure:
(a) If a State party to the present Covenant considers thatanother State party is not
giving effect to the provisions ofthe present Covenant, it may, by written
communication,bring the matter to the attention of that State party. Withinthree months after
the receipt of the communication thereceiving State shall afford the State which sent
thecommunication an explanation, or any other statement inwriting clarifying the matter
which should include, to theextent possible and pertinent, reference to domesticprocedures
and remedies taken, pending, or available in thematter;
(b) If the matter is not adjusted to the satisfaction of both Statesparties concerned
within six months after the receipt by thereceiving State of the initial communication, either
Stateshall have the right to refer the matter to the Committee, bynotice given to the
Committee and to the other State;
(c) The Committee shall deal with a matter referred to it onlyafter it has ascertained
that all available domestic remedieshave been invoked and exhausted in the matter,

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inconformity with the generally recognized principles ofinternational law. This shall not be
the rule where theapplication of the remedies is unreasonably prolonged;
(d) The Committee shall hold closed meetings when examiningcommunications
under this article;
(e) Subject to the provisions of subparagraph (c), the Committeeshall make available
its good offices to the States partiesconcerned with a view to a friendly solution of the matter
onthe basis of respect for human rights and fundamentalfreedoms as recognized in the
present Covenant;
(f) In any matter referred to it, the Committee may call upon theStates parties
concerned, referred to in subparagraph (b), tosupply any relevant information;
(g) The States parties concerned, referred to in subparagraph (b) shall have the right
to be represented when the matter isbeing considered in the Committee and to make
submissionsorally and/or in writing;
(h) The Committee shall, within 12 months after the date ofreceipt of notice under
subparagraph (b), submit a report: (i)If a solution within the terms of subparagraph is
reached, theCommittee shall confine its report to a brief statement of thefacts and of the
solution reached; (ii) If a solution within theterms of subparagraph is not reached, the
Committee shallconfine its report to a brief statement of the facts; the writtensubmissions and
record of the oral submissions made by theStates parties concerned shall be attached to the
report. Inevery matter, the report shall be communicated to the Statesparties concerned.
2. The provisions of this article shall come into force when 10 Statesparties to the
present Covenant have made declarations underparagraph 1 of this article. Such declarations
shall be deposited bythe States parties with the Secretary-General of the United Nations,who
shall transmit copies thereof to the other States parties. Adeclaration may be withdrawn at
any time by notification to theSecretary-General. Such a withdrawal shall not prejudice
theconsideration of any matter which is the subject of acommunication already transmitted
under this article; no furthercommunication by any State party shall be received after

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thenotification of withdrawal of the declaration has been received bythe Secretary-General,

unless the State party concerned has made anew declaration.
Article 42
1. (a) If a matter referred to the Committee in accordance witharticle 41 is not
resolved to the satisfaction of the Statesparties concerned, the Committee may, with the
priorconsent of the States parties concerned, appoint an ad hocConciliation Commission
(hereinafter referred to as theCommission). The good offices of the Commission shall
bemade available to the States parties concerned with a view toan amicable solution of the
matter on the basis of respect forthe present Covenant;
(b) The Commission shall consist of five persons acceptable tothe States parties
concerned. If the States parties concernedfail to reach agreement within three months on all
or part ofthe composition of the Commission, the members of the Commission concerning
whom no agreement has beenreached shall be elected by secret ballot by a two-thirdsmajority
vote of the Committee from among its members.
2. The members of the Commission shall serve in their personalcapacity. They shall
not be nationals of the States partiesconcerned, or of a State not party to the present
Covenant, or of aState party which has not made a declaration under article 41.
3. The Commission shall elect its own Chairman and adopt its ownrules of procedure.
4. The meetings of the Commission shall normally be held at theHeadquarters of the
United Nations or at the United Nations Officeat Geneva. However, they may be held at such
other convenientplaces as the Commission may determine in consultation with theSecretary-
General of the United Nations and the States partiesconcerned.
5. The secretariat provided in accordance with article 36 shall alsoservice the
commissions appointed under this article.
6. The information received and collated by the Committee shall bemade available to
the Commission and the Commission may callupon the States parties concerned to supply
any other relevantinformation.

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7. When the Commission has fully considered the matter, but in anyevent not later
than 12 months after having been seized of thematter, it shall submit to the Chairman of the
Committee a reportfor communication to the States parties concerned:
(a) If the Commission is unable to complete its consideration ofthe matter within 12
months, it shall confine its report to abrief statement of the status of its consideration of
thematter;
(b) If an amicable solution to the matter on the basis of respectfor human rights as
recognized in the present Covenant isreached, the Commission shall confine its report to a
briefstatement of the facts and of the solution reached;
(c) If a solution within the terms of subparagraph (b) is notreached, the Commission’s
report shall embody its findingson all questions of fact relevant to the issues between
theStates parties concerned, and its views on the possibilities ofan amicable solution of the
matter. This report shall alsocontain the written submissions and a record of the
oralsubmissions made by the States parties concerned;
(d) If the Commission’s report is submitted under subparagraph
(c), the States parties concerned shall, within three months ofthe receipt of the report,
notify the Chairman of theCommittee whether or not they accept the contents of thereport of
the Commission.
8. The provisions of this article are without prejudice to theresponsibilities of the
Committee under article 41.
9. The States parties concerned shall share equally all the expenses ofthe members of
the Commission in accordance with estimates to beprovided by the Secretary-General of the
United Nations.
10. The Secretary-General of the United Nations shall be empoweredto pay the
expenses of the members of the Commission, ifnecessary, before reimbursement by the
States parties concerned, inaccordance with paragraph 9 of this article.
Article 43

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The members of the Committee, and of the ad hoc conciliationcommissions which

may be appointed under article 42, shall be entitled tothe facilities, privileges and immunities
of experts on mission for theUnited Nations as lay down in the relevant sections of the
Convention onthe Privileges and Immunities of the United Nations.
Article 44
The provisions for the implementation of the present Covenantshall apply without
prejudice to the procedures prescribed in the field ofhuman rights by or under the constituent
instruments and the conventionsof the United Nations and of the specialized agencies and
shall notprevent the States parties to the present Covenant from having recourse toother
procedures for settling a dispute in accordance with general orspecial international
agreements in force between them.
Article 45
The Committee shall submit to the General Assembly of the UnitedNations, through
the Economic and Social Council, an annual report onits activities.
Part V (Articles 46-47) clarifies that “nothing in the (present) Covenantshall be
interpreted as impairing the provisions of the Charter of theUnited Nations and of the
constitutions of the specialized agencies whichdefine the respective responsibilities of the
various organs of the UnitedNations and of the specialized agencies in regard to the matters
dealt within the present Covenant” or “the inherent right of all peoples to enjoy andutilize
fully and freely their national wealth and resources”.
Article 46
Nothing in the present Covenant shall be interpreted as impairingthe provisions of the
Charter of the United Nations and of theconstitutions of the specialized agencies which
define the respectiveresponsibilities of the various organs of the United Nations and of
thespecialized agencies in regard to the matters dealt with in the presentCovenant.
Article 47
Nothing in the present Covenant shall be interpreted as impairingthe inherent right of
all peoples to enjoy and utilize fully and freely theirnatural wealth and resources.
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Part VI (Articles 48-53) has provisions with regard to the ratification,entry into force
and amendment of the Covenant.
Article 48
1. The present Covenant is open for signature by any State Memberof the United
Nations or member of any of its specialized agencies,by any State party to the Statute of the
International Court ofJustice, and by any other State which has been invited by theGeneral
Assembly of the United Nations to become a party to thepresent Covenant.
2. The present Covenant is subject to ratification. Instruments ofratification shall be
deposited with the Secretary-General of theUnited Nations.
3. The present Covenant shall be open to accession by any Statereferred to in
paragraph 1 of this article.
4. Accession shall be effected by the deposit of an instrument ofaccession with the
Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all Stateswhich have
signed this Covenant or acceded to it of the deposit ofeach instrument of ratification or
accession.
Article 49
1. The present Covenant shall enter into force three months after thedate of the
deposit with the Secretary-General of the UnitedNations of the thirty-fifth instrument of
ratification or instrument ofaccession.
2. For each State ratifying the present Covenant or acceding to it afterthe deposit of
the thirty-fifth instrument of ratification orinstrument of accession, the present Covenant
shall enter into forcethree months after the date of the deposit of its own instrument
ofratification or instrument of accession.
Article 50
The provisions of the present Covenant shall extend to all parts offederal States
without any limitations or exceptions.
Article 51
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1. Any State party to the present Covenant may propose anamendment and file it with
the Secretary-General of the UnitedNations. The Secretary-General of the United Nations
shallthereupon communicate any proposed amendments to the Statesparties to the present
Covenant with a request that they notify himwhether they favour a conference of States
parties for the purposeof considering and voting upon the proposals. In the event that atleast
one third of the States parties favour such a conference, theSecretary-General shall convene
the conference under the auspicesof the United Nations. Any amendment adopted by a
majority ofthe States parties present and voting at the conference shall besubmitted to the
General Assembly of the United Nations forapproval.
2. Amendments shall come into force when they have been approvedby the General
Assembly of the United Nations and accepted by atwo-thirds majority of the States parties to
the present Covenant inaccordance with their respective constitutional processes.
3. When amendments come into force, they shall be binding on thoseStates parties
which have accepted them, other States parties stillbeing bound by the provisions of the
present Covenant and anyearlier amendment which they have accepted.
Article 52
Irrespective of the notifications made under article 48, paragraph 5,the Secretary-
General of the United Nations shall inform all Statesreferred to in paragraph 1 of the same
article of the following particulars:
(a) Signatures, ratifications and accessions under article 48;
(b) The dateof the entry into force of the present Covenant under article 49 and
thedate of the entry into force of any amendments under article 51.
Article 53
1. The present Covenant, of which the Chinese, English, French,Russian and Spanish
texts are equally authentic, shall be depositedin the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmitcertified copies of the
present Covenant to all States referred to inarticle 48.
(iv) India’s Reservation on the ICCPR
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I. “With reference to article 1 of the International Covenant onEconomic, Social and

Cultural Rights and article 1 of theInternational Covenant on Civil and Political Rights,
theGovernment of the Republic of India declares that the words’ theright of self-
determination appearing (this article) apply only to thepeoples under foreign domination and
that these words do notapply only to sovereign independent States or to a section of apeople
or nation-which is the essence of national integrity”.
II. “With reference to article 9 of the International Covenant on Civiland Political
Rights, the Government of the Republic of India takesthe position that the provisions of the
article shall be so applied asto be in consonance with the provisions of clauses (3) to (7)
ofarticle 22 of the constitution of India. Further under the IndianLegal System, there is no
enforceable right to compensation forpersons claiming to be victims of unlawful arrest or
detentionagainst the State”.
III. “With respect to article 13 of the International Covenant on Civiland Political
Rights, the Government of the Republic of Indiareserves its right to apply its law relating to
foreigners”.
IV. “With reference to articles, 4 and 8 of the International Covenanton Economic,
Social and Cultural Rights, and articles 12, 19(3), 21and 22 of the International Covenant on
Civil and Political Rightsthe Government of the Republic of India declares that theprovisions
of the said [article] shall be so applied as to be inconformity with the provisions of article 19
of the Constitution ofIndia”.
V. “With reference to article 7(c) of the International Covenant ofEconomic, Social
and Cultural Rights, the Government of theRepublic of India declares that the provisions of
the said articleshall be so applied as to be in conformity with the provisions ofarticle 16(4) of
the constitution of India.”
III. OPTIONAL PROTOCOL TO ICCPR
(a) First optional protocol
The First Optional Protocol is a supplementary treaty to theInternational Covenant on
Civil and Political Rights (ICCPR). It isprocedural and provides a mechanism for the Human

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Rights Committee,set up by the ICCPR, to receive and consider individual complaintsagainst

alleged breaches of the Covenant by state party.
The First Optional Protocol to the ICCPR was adopted by GeneralAssembly on 16th
December, 1966 and it entry into force, 23rd March,1976.Thus, individuals who claim that
their rights and freedoms havebeen violated, may call the State in question to account for its
actions,provided it is a party of the optional Protocol to the ICCPR.
Key Provisions of the First Optional Protocol to the ICCPR
• Establishes an individual complaints mechanism for the ICCPR;
• Parties agree to recognize the competence of the UN Human Rights Committee to
consider complaints from individuals or groups whoclaim their rights under the ICCPR have
been violated.
The States parties to the present Protocol, Considering that in orderfurther to achieve
the purposes of the International Covenant on Civil andPolitical Rights (hereinafter referred
to as the Covenant) and theimplementation of its provisions it would be appropriate to enable
theHuman Rights Committee set up in Part IV of the Covenant (hereinafterreferred to as the
Committee) to receive and consider, as provided in thepresent Protocol, communications
from individuals claiming to bevictims of violations of any of the rights set forth in the
Covenant Haveagreed as follows:
Article 1
A State party to the Covenant that becomes a party to the presentProtocol recognizes
the competence of the Committee to receive andconsider communications from individuals
subject to its jurisdiction whoclaim to be victims of a violation by that State party of any of
the rightsset forth in the Covenant. No communication shall be received by theCommittee if
it concerns a State party to the Covenant which is not aparty to the present Protocol.
Article 2
Subject to the provisions of article 1, individuals who claim thatany of their rights
enumerated in the Covenant have been violated andwho have exhausted all available
domestic remedies may submit a writtencommunication to the Committee for consideration.
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Article 3
The Committee shall consider inadmissible any communicationunder the present
Protocol which is anonymous, or which it considers tobe an abuse of the right of submission
of such communications or to beincompatible with the provisions of the Covenant.
Article 4
1. Subject to the provisions of article 3, the Committee shall bringany
communications submitted to it under the present Protocol tothe attention of the State party
to the present Protocol alleged to beviolating any provision of the Covenant.
2. Within six months, the receiving State shall submit to theCommittee written
explanations or statements clarifying the matterand the remedy, if any, that may have been
taken by that State.
Article 5
1. The Committee shall consider communications received under thepresent Protocol
in the light of all written information madeavailable to it by the individual and by the State
party concerned.
2. The Committee shall not consider any communication from anindividual unless it
has ascertained that:
(a) The same matter is not being examined under anotherprocedure of international
investigation or settlement;
(b) The individual has exhausted all available domesticremedies. This shall not be the
rule where the application ofthe remedies is unreasonably prolonged.
3. The Committee shall hold closed meetings when examiningcommunications under
the present Protocol.
4. The Committee shall forward its views to the State party concernedand to the
individual.
Article 6
The Committee shall include in its annual report under article 45 ofthe Covenant a
summary of its activities under the present Protocol.
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Article 7
Pending the achievement of the objectives of resolution 1514 (XV)adopted by the
General Assembly of the United Nations on 14 December1960 concerning the Declaration on
the Granting of Independence toColonial Countries and Peoples, the provisions of the present
Protocolshall in no way limit the right of petition granted to these peoples by theCharter of
the United Nations and other international conventions andinstruments under the United
Nations and its specialized agencies.
Article 8
1. The present Protocol is open for signature by any State which hassigned the
Covenant.
2. The present Protocol is subject to ratification by any State whichhas ratified or
acceded to the Covenant. Instruments of ratificationshall be deposited with the Secretary-
General of the UnitedNations.
3. The present Protocol shall be open to accession by any State which has ratified or
acceded to the Covenant.
4. Accession shall be effected by the deposit of an instrument ofaccession with the
Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all Stateswhich have
signed the present Protocol or acceded to it of thedeposit of each instrument of ratification or
accession.

Article 9
1. Subject to the entry into force of the Covenant, the present Protocolshall enter into
force three months after the date of the deposit withthe Secretary-General of the United
Nations of the tenth instrumentof ratification or instrument of accession.
2. For each State ratifying the present Protocol or acceding to it afterthe deposit of the
tenth instrument of ratification or instrument ofaccession, the present Protocol shall enter into

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force three monthsafter the date of the deposit of its own instrument of ratification
orinstrument of accession.
Article 10
The provisions of the present Protocol shall extend to all parts offederal States
without any limitations or exceptions.
Article 11
1. Any State party to the present Protocol may propose an amendmentand file it with
the Secretary-General of the United Nations. TheSecretary-General shall thereupon
communicate any proposedamendments to the States parties to the present Protocol with
arequest that they notify him whether they favour a conference ofStates parties for the
purpose of considering and voting upon theproposal. In the event that at least one third of the
States partiesfavour such a conference, the Secretary-General shall convene theconference
under the auspices of the United Nations. Anyamendment adopted by a majority of the States
parties present andvoting at the conference shall be submitted to the GeneralAssembly of the
United Nations for approval.
2. Amendments shall come into force when they have been approvedby the General
Assembly of the United Nations and accepted by atwo-thirds majority of the States parties to
the present Protocol inaccordance with their respective constitutional processes.
3. When amendments come into force, they shall be binding on thoseStates parties
which have accepted them, other States parties stillbeing bound by the provisions of the
present Protocol and anyearlier amendment which they have accepted.

Article 12
1. Any State party may denounce the present Protocol at any time bywritten
notification addressed to the Secretary-General of theUnited Nations. Denunciation shall take
effect three months afterthe date of receipt of the notification by the Secretary-General.

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2. Denunciation shall be without prejudice to the continuedapplication of the

provisions of the present Protocol to anycommunication submitted under article 2 before the
effective dateof denunciation.
Article 13
Irrespective of the notifications made under article 8, paragraph 5,of the present
Protocol, the Secretary-General of the United Nations shallinform all States referred to in
article 48, paragraph 1, of the Covenant ofthe following particulars: (a) Signatures,
ratifications and accessionsunder article 8; (b) The date of the entry into force of the present
Protocolunder article 9 and the date of the entry into force of any amendmentsunder article
11; (c) Denunciations under article 12.
Article 14
1. The present Protocol, of which the Chinese, English, French,Russian and Spanish
texts are equally authentic, shall be depositedin the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmitcertified copies of the
present Protocol to all States referred to inarticle 48 of the Covenant.
(b) Second Optional Protocol
The purpose of the Second optional Protocol is revealed by its fulltitle, “aiming at the
abolition of the death penalty”. It was adopted by theGeneral Assembly by its resolution
44/128 of 15 December 1989.
The Preamble to the Second Optional Protocol reinforces the viewthat abolition of the
death penalty is a desirable and progressive humanrights measure that enhances human
dignity and enjoyment of the right tolife.

Key Provisions of the Second Optional Protocol to the ICCPR

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• Commits its members to the abolition of the death penalty withintheir borders,
though Article 2.1 allows parties to make areservation allowing execution for grave crimes in
times of war.
Second Optional Protocol to the International Covenant on Civiland Political Rights,
Aiming at the Abolition of the Death PenaltyAdopted and proclaimed by General Assembly
resolution 44/128 of 15 December 1989 The States parties to the present Protocol, Believing
that abolitionof the death penalty contributes to enhancement of human dignity
andprogressive development of human rights, Recalling article 3 of theUniversal Declaration
of Human Rights, adopted on 10 December 1948,and article 6 of the International Covenant
on Civil and Political Rights,adopted on 16 December 1966, Noting that article 6 of the
InternationalCovenant on Civil and Political Rights refers to abolition of the deathpenalty in
terms that strongly suggest that abolition is desirable,Convinced that all measures of
abolition of the death penalty should beconsidered as progress in the enjoyment of the right
to life, Desirous toundertake hereby an international commitment to abolish the deathpenalty,
Have agreed as follows:
Article 1
1. No one within the jurisdiction of a State party to the presentProtocol shall be
executed.
2. Each State party shall take all necessary measures to abolish thedeath penalty
within its jurisdiction.
Article 2
1. No reservation is admissible to the present Protocol, except for areservation made
at the time of ratification or accession thatprovides for the application of the death penalty in
time of warpursuant to a conviction for a most serious crime of a militarynature committed
during wartime.
2. The State party making such a reservation shall at the time ofratification or
accession communicate to the Secretary-General ofthe United Nations the relevant provisions
of its national legislationapplicable during wartime. 3. The State party having made such

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areservation shall notify the Secretary-General of the United Nationsof any beginning or
ending of a state of war applicable to itsterritory.
Article 3
The States parties to the present Protocol shall include in thereports they submit to the
Human Rights Committee, in accordance witharticle 40 of the Covenant, information on the
measures that they haveadopted to give effect to the present Protocol.
Article 4
With respect to the States parties to the Covenant that have madedeclaration under
article 41, the competence of the Human RightsCommittee to receive and consider
communications when a State partyclaims that another State party is not fulfilling its
obligations shall extendto the provisions of the present Protocol, unless the State party
concernedhas made a statement to the contrary at the moment of ratification oraccession.
Article 5
With respect to the States parties to the first Optional Protocol tothe International
Covenant on Civil and Political Rights adopted on 16December 1966, the competence of the
Human Rights Committee toreceive and consider communications from individuals subject
to itsjurisdiction shall extend to the provisions of the present Protocol, unless the State party
concerned has made a statement to the contrary at themoment of ratification or accession.
Article 6
1. The provisions of the present Protocol shall apply as additionalprovisions to the
Covenant.
2. Without prejudice to the possibility of a reservation under article 2of the present
Protocol, the right guaranteed in article 1, paragraph1, of the present Protocol shall not be
subject to any derogationunder article 4 of the Covenant.
Article 7
1. The present Protocol is open for signature by any State that hassigned the
Covenant.

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2. The present Protocol is subject to ratification by any State that hasratified the
Covenant or acceded to it. Instruments of ratificationshall be deposited with the Secretary-
General of the UnitedNations.
3. The present Protocol shall be open to accession by any State thathas ratified the
Covenant or acceded to it.
4. Accession shall be effected by the deposit of an instrument ofaccession with the
Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all Statesthat have signed
the present Protocol or acceded to it of the depositof each instrument of ratification or
accession.
Article 8
1. The present Protocol shall enter into force three months after thedate of the deposit
with the Secretary-General of the UnitedNations of the tenth instrument of ratification or
accession.
2. For each State ratifying the present Protocol or acceding to it afterthe deposit of the
tenth instrument of ratification or accession, thepresent Protocol shall enter into force three
months after the date ofthe deposit of its own instrument of ratification or accession.
Article 9
The provisions of the present Protocol shall extend to all parts offederal States
without any limitations or exceptions.
Article 10
The Secretary-General of the United Nations shall inform all Statesreferred to in
article 48, paragraph 1, of the Covenant of the followingparticulars:
(a) Reservations, communications and notifications under article2 of the present
Protocol;
(b) Statements made under articles 4 or 5 of the presentProtocol;
(c) Signatures, ratifications and accessions under article 7 of thepresent Protocol;
(d) The date of the entry into force of the present Protocol underarticle 8 thereof.
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Article 11
1. The present Protocol, of which the Arabic, Chinese, English,French, Russian and
Spanish texts are equally authentic, shall bedeposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmitcertified copies of the
present Protocol to all States referred to inarticle 48 of the Covenant.
IV. UDHR IMPACT ON FUNDAMENTAL RIGHTS
The Universal Declaration of Human Rights is binding upon India,since it is a
signatory to the said declaration. The very basis of thisdeclaration is that the interest of one
part of the world is bound up withthe interests of human beings as a whole in every other part
of the world.
As Dr. Martin Luther King says, injustice anywhere is bound to leadinjustice
everywhere. Pains and troubles of one part of the human familymay be religious or
otherwise, cause the pain and trouble to the rest of thehuman family. This is fundamental
concept underlying making of bindingdeclarations and conventions in which the nations of
the world have joined. Therefore, the primary question, which arises, is ‘What influencedid
the Universal Declaration of Human Rights have on the IndianConstitution?’ In an attempt to
find the answer and going to the history ofmaking of the Indian Constitution, it is found that
the UniversalDeclaration of Human Rights, which the United Nation Organisation,adopted
on 10th December 1948, enumerates various Civil & PoliticalRights and Economic and
Social Rights. This Declaration had a greatimpact on the philosophy and ideology of the
Constitution framers, whilethe Constitution of India was in the making at that time. Many
similarrights were incorporated in our Constitution under the headingsFundamental Rights
and Directive Principles of the State Policy inChapter III & IV respectively and these rights
have a great significancefor the Indian people as they have enabled every citizen of India to
livefreely and honourably. A human being gets full freedom to develophimself mentally and
physically.
At the time of Declaration of the Human Rights, the GeneralAssembly proclaimed
that the Universal Declaration was to be a commonstandard of achievement for all the people

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and all the nations, to the endthat every individual and every organ of the society, keeping
thedeclaration constantly in mind, shall strive by teaching and education topromote respect
for these rights and freedoms and by progressivemeasures, national and international, to
secure their universal andeffective recognition and observance, both among the people of
Memberstates themselves and among themselves and among the people ofterritories under
their jurisdiction.
The Universal Declaration of Human Rights promulgated by theUnited Nations, to which
India was a party, proclaimed basic humanrights, although it did not provide for any
machinery for its enforcement. Thus viewed from the Indian standpoint, Human Rights have
beensynthesized, as it were, not as an integrated fabric by the preamblepromises and various
constitutional clauses of the Universal Declarationof Human Rights. To illustrate the said
proposition, one fine example isof the Fundamental Rights as enacted in our Constitution not
onlyrecognize the dignity of the individual to which the Preamble refers, butalso recognize
their necessity for the full development of the individualand for preserving the unity of India.
The historical struggle for politicalfreedom in India had made a declaration of Fundamental
Rightsinevitable. In fact, the Indian Declaration at the Round Table Conferencehad pressed
for the enactment of Fundamental Rights in the Constitutionwhich, it was expected the
British Parliament would pass. Also, WorldWar II saw human behaviour at its worst and
what were considered asNatural Rights of people came to be fine tuned into Human Rights.
United Nations took upon itself the role of the crusader for HumanRights. As the preamble of
United Nations Charter declared it wasdetermined "to reaffirm faith in fundamental Human
Rights, in thedignity and worth of human person, in equal rights of man and womenand of
the Nations large and small". Universal Declaration of HumanRights was adopted in 1948
followed by Covenants on Political and CivilRights and Social, Economic and Cultural
Rights in 1966. India, adoptedits Republican Constitution in 1950 and included a special part
onFundamental Rights. The Universal Declaration of Human Rightsadopted and proclaimed
by the General Assembly of the United Nationson the 10th of December 1948 is indeed one

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of the precious events in theongoing march of mankind in the direction of refining

civilization.
A standard code of Human Rights for the entire Homo sapiens racewas made
applicable to the whole globe and it was what mankind hadbeen striving over for centuries.
Now what is understood is that ‘thepremises for the Universal Declaration is that the entire
mankind istreated as one member of one human family; the rights are inalienableand are
considered on the foundation of freedom, justice and peace. Dignity of the human person is
acclaimed and men and womenwith equal rights are indeed to march ahead for the promotion
of socialprogress and for the better standards of life and environment of such freedom.
The topic of human rights is of universal concern and it cuts acrossall ideological,
political and cultural boundaries. Respect for humanrights is one of the cardinal principles for
an effective operation ofConstitution, Law and the Government of any country. Article 1 of
theUniversal Declaration of Human Rights is based on two assumptionsnamely,
(i) The right to liberty and equality is man’s birth right and cannot bealienated,
(ii) Because man is rational and a moral being, he is different fromother creations on
earth and, therefore, is entitled to certain rightsand freedoms which other creators do not
enjoy.
Here it is contestations to note the words of Prof. Upendra Baxi,who holds that ‘I take
it as axiomatic that the historic mission of thecontemporary human rights is to give voice to
human suffering to make itvisible and to ameliorate it.7 Laying down the very basis of the
HumanRights, the commendable author goes on to continue that ‘the ethics ofhuman rights
emerges as a tradition of critical morality by which thepositive morality of human rights
practices themselves may be judged.Respect towards the other as a co-equal human is a
groundwork of anethic of human rights, furnishing universal valid norms for humanconduct
and the basic structure of a society.’
Every societal cultureencapsulates beliefs, sentiments, symbols that impart sense to
the notionof being human, no matter in how many different registers of inclusivity.These

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societal human rights cultures relate to global cultures of humanrights. They are shaped by
the golden cultures and in turn shape them.
HUMAN RIGHTS AND THE INDIAN CONSTITUTION
No Name of Right Universal Indian
Declaration Constitution
1 Equality before law Article 07 Articles 14
Equality of opportunity in
2 Article 21(2) Article 16(1)
matters of public employment
Protection of certain rights
3 Article 19 Article 19(1) A
regarding freedoms of speech, etc,
Protection in respect of
4 Article 11(2) Article 20 (1)
conviction for offences
5 Protection of life and personal liberty Article 9 Article 21
Prohibition of trafficking in
6 Article 14 Article 23
human beings and forced labour
Freedom of conscience and free
7 Profession practice and propagation Article 18 Article 25 (1)
of religion
8 Protection of Interests of minorities Article 22 Article 29 (1)
Right of minorities to establish and
9 Article 20(3) Article 30(1)
administer Educational Institutions
Not a fundamental
rightsafter
amendment 44,
10 Right to property Article 17 (2)
but
now in Article
300A
11 Remedies for enforcement of rights Article 8 Article 32
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conferred by this part

Table 1:Similarities between Universal Declarations of Human Rights andIndian
Constitution.
HUMAN RIGHTS AND THE INDIAN CONSTITUTION
No Rights Convention on Indian
Civil And Political Constitution
Rights
Prohibition of trafficking in
1 Article 8(3) Article 23
human beings and forced labour
2 Equality before law Article 14(1) Article 14
Prohibition of discrimination on
3 ground of religion, race, caste, Article 26 Article 15
sex or place of birth
Equality of opportunity in
4 Article 25(c) Article 16(1)
matters of public employment
Protection of certain rights
5 Article 19(1, 2) Article 19
regarding freedom of speech
To assemble peaceably and
6 Article 21 Article 19 (1b)
without arms
7 To form association or unions Article 22(1) Article 19(1c)
To move freely throughout
8 Article 12 (1) Article 19(1d,e,g)
the territory of India
Protection in respect of Article 15(1)
9 Article 20(1)(2)
conviction for offences Article 14 (7)
10 No person accused of any offence Article 14(3g) Article 20(3)
shall be compelled to be a

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witness against himself

Article 6 (1),
11 Protection of life and personal liberty Article 21
Article 9 (1)
Protection against arrest and
12 Article 9 (2,3,4) Article 22
detention in certain cases
Freedom of conscience And
13 free profession, practice and Article 18(1) Article 25
propagation of religion
Table 2: Similarities between Covenant on Civil and Political Rights andIndian Constitution
Also, though they were added later by way of amendment, thefundamental duties
enshrined in the Constitution of India, contained inPart IV A, and are in consonance with
Article 29 (1) of the Universal Declaration of Human Rights, which says, everyone has duties
to the community in which alone the free and full development of his personality is possible.
‘We must reaffirm faith in recognition of theinherent dignity and inalienable rights of all
citizens as the foundation offreedom, justice and peace in the world, which implies
obligations andresponsibilities.’ Human rights, thus, go hand in hand withresponsibilities. It
is very necessary that all citizens should be madeaware of the potential of Article 51A
relating to fundamental duties as ameans to ensure the protection of human rights.
Thus is an effortless task to establish that the Universal Declarationis a pioneer
documentation of Human Rights of the mankind at large, ascontemplated, adopted and
accepted by the International Community.
The Fundament Rights that are guaranteed under the Constitutionhave a close
similarity with those in the UN Declaration of Human Rightsin form and content in Articles
14, 15, 16, 19, 20, 21, 23, 25, 29, 31and 32.
When we look closely at the content or substance of civil andpolitical rights and
personal freedom granted to the citizens of India, itbecomes manifest that though the
Fundamental Rights have not beenchristened as “human Rights” most of such rights find a

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place under thetitle “Fundamental Rights” in our Constitution. A comparative study of this is
provided that:
1. EQUALITY BEFORE LAW
The Indian Constitution: The State shall not deny to any person equalitybefore
the law or the equal protection of the laws within the territory ofIndia. (Art 14)
UDHR:All are equal before the law and are entitled without anydiscrimination to
equal protection of law (Art. 7).
2. NO DISCRIMINATION ON GROUNDS OF RELIGION, SEX, CASTE
ETC.
The Indian Constitution:The State shall not discriminate against anycitizen on
grounds only of religion, race, caste, sex, place of birth or anyof them. [Art. 15(1)]
UDHR:Everyone is entitled to all the rights and freedoms set forth inthis
Declaration, without distinction of any kind such as race, colour, sex,language, religion,
political or other opinion, national or social origin,property, birth or other status. (Art 2, para
1) Furthermore, no distinctionshall be made on the basis of the political, jurisdictional or
Internationalstatus of the country or territory to which a person belongs (Para 2)Art 7 of
UDHR goes a step further in providing equal protection topersons against any kind of
discrimination as “All are entitled to equalprotection against any discrimination in violation
of this declaration…”
3. EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC
EMPLOYMENT
The Indian Constitution:There shall be equality of opportunity for allcitizens in
matters relating to employment or appointment to any officeunder the State. [Art. 16(i)]
UDHR:Everyone has the right to equal access to public service in hiscountry. [Art.
21(2)]
4. FREEDOM OF SPEECH, ASSEMBLY, ASSOCIATION ETC.
(a) Right to Speech and Expression
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The Indian Constitution:All citizens shall have the rights–

(i) to freedom of speech and expression; [Art 19(i)(a)]
UDHR:(ii) Everyone has the right to freedom of opinion and expression.(Art 19) (a)
Right of Assembly
The Indian Constitution:(i) to assemble peaceably and without arms [Art,19(1)
(b)]
UDHR:Everyone has the right to freedom of peaceful assembly. [Art.20(1)]
(b) Right to form Unions and Associations
The Indian Constitution :(i) to form Unions and Associations; [Art.19(1)(c)]
UDHR:(ii) Everyone has the right to form and join trade unions. [Art.23(4)]
(c) Right to move freely throughout the territory of India
The Indian Constitution:(i) to move freely throughout the territory ofIndia [Art.
19(1)(d)]
UDHR: (ii) ‘Everyone has the right to freedom of movement and residence within
the borders of each State. [Art. 13(1)]
(d) Right to reside and settle in any part of the territory of India.

The Indian Constitution:(i) ‘to reside and settle in any part of theterritory of
India’; [Art. 19(1)(e)]
UDHR:(ii) Everyone has the right to leave any country, including hisown, and to
return to his country’. [Art 13(2)]A perusal of the above rights would underlie significance of
Indianpolity as a democratic State and society. Also, virtually each part of thevarious
freedoms conforms to the letter and spirit of the correspondingarticles of the UDHR.
5 PROTECTIONS IN RESPECT OF CONVICTION AND OFFENCES
The Indian Constitution:[Art 20(1)(i)] of the Indian Constitutionprovides that
“No person shall be convicted for any offence except forviolation of a law in force at the
time of commission of the act charged asan offence, nor be subjected to a penalty greater

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than that which mighthave been inflicted under the law in force at the time of the
commissionsof the offence.”
UDHR:(ii) Likewise [Art. 11(2)] of the Universal Declaration reads: “Noone shall
be held guilty of any penal offence on account of any act oromission which did not constitute
a penal offence, under national orinternational law, at the time when it was committed. Nor
shall a heavierpenalty be imposed than the one that was applicable at the time the
penaloffence was committed”.
6. PROTECTION OF LIFE AND PERSONAL LIBERTY
The Indian Constitution:(i) [Art. 21(i)] of the Indian Constitution laysdown that
“No person shall be deprived of his life or personal libertyexcept, according to procedure
established by law”.
UDHR:(ii) Art. 3 of UDHR speak in the same vein, “Everyone has theright to life,
liberty and security of persons”.However, in India, in the case of arrest and detention of a
person incustody, the Constitution guarantees various safeguards to a person (Art.22).
7. RIGHT AGAINST EXPLOITATION
The Indian Constitution:(i) [Art. 23(i)] Prohibits traffic in human beingsand
forced labour. It says: “Traffic in human beings and ‘beggar’ andother similar forms of
forced labour are prohibited and any contraventionof this provisions shall be an offence
punishable in accordance with law.”
Indian Constitution prevents exploitation of children of tender age.Article 24 reads as
follows: “No child below the age of fourteen yearsshall be employed to work in any factory
or mine or engaged in any otherhazardous employment.” How surprising it is to note that
while theConstitution makers of India guaranteed this right to the children with
thecommencement of the Constitution, the UN recognized and adopted sucha right of the
child in 1989, which came in force on September 2, 1990.There are in all 42 Articles, which
provide detailed safeguards to childrenbelow the age of eighteen years.

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UDHR:(ii) Art. 4 of UDHR prohibit traffic in human beings as: “Noperson shall be
held in slavery or servitude;
8. RIGHT TO FREEDOM OF RELIGION
The Indian Constitution:(i) The Right to Freedom of Religion (Articles25-29)
includes freedom of conscience and the right freely to profess,practice and propagate religion
and Freedom to Manage Religious Affairsalong with some other religious freedoms. Article
25(i) guaranteesfreedom of conscience and free profession, practice and propagation
ofreligion as:“Subject to public order, morality and health and to the otherprovisions of this
Part I, all persons are entitled to freedom of conscienceand the right freely to profess,
practice and propagate religion.” [Art25(i)]
UDHR: (ii) the contents of the Art. 18 of UDHR in respect is that“Everyone has the
right to freedom of thought, conscience, and religion,this right includes freedom to change
his religion or belief, and freedom,and either in alone or in community with others and in
public or private,to manifest his religion or belief in teaching, practice worship
andobservance.” Very surprisingly, this right includes “freedom of thought”along with
freedom of conscience and religion.
9. PROTECTION OF RIGHTS OF MINORITIES
The Indian Constitution:(i) Under Articles 29(1) and 30(1) rights ofminorities
have been guaranteed. According to Article 29(1) “Any sectionof the citizens residing in the
territory of India or any part thereof have adistinct language, script or culture of its own shall
have the right toconserve the same”.
Also, all minorities, whether based on religion or language, shallhave the right to
establish and administer educational institutions of theirchoice. [Art. 30(1)]
UDHR:(ii) Such a Human right has not been covered by UDHRHowever; this has
been covered by Article 27 of International covenanton Civil and Political Rights as under:
“In those States in which ethnic, religious or linguistic minoritiesexist, persons belonging to
such minorities shall not be denied the right,in community with the other members of the

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group, to enjoy their ownculture, to profess and practice their own religion, or to use their
ownlanguage.” (Art 27, ICCPR)
10. RIGHT TO CONSTITUTIONAL REMEDIES
All such rights mentioned here have no meaning if they are deniedin practice. Thus to
safeguard the enjoyment of rights some judicialagency for the enforcement of the rights is
needed.
The Indian Constitution:Indian makes arrangement for such anenforcement
Agency under Article 32(i). It reads; “The right to move theSupreme Court by appropriate
proceedings for the enforcement of therights conferred by this part is guaranteed”.The
Supreme Court under Article 32 and High Courts underArticle 226 have the power to issue
writs, including writs in the nature ofhabeas corpus, mandamus, prohibition, quo warranto
and certiorari forthe enforcement of these rights.
UDHR:The UDHR makes provision for remedial action under Article 8which states
that, everyone has the right to an effective remedy by thetribunals for acts violating the
fundamental rights granted to him by theConstitution or law”.

V. JUDICIAL INTERPRETATION OF UDHR

The peculiarity of the Constitution of India, as in comparison toother Constitutions,
lies in the fact that despite being a wholesalecombination of different documents, it has never
limited itself to oneaspect or one document. It has been a Living Constitution, a breathing
Patriarch, whose foundation is not like a rock, as being static, but isdynamic, flexible and
accumulative to the various provisions that may berequired to face the changing need of the
hour. The mechanism for thischange is well based, interalia, upon the stipulation of Judicial
Activism,which is also one of the responsibility of the Judiciary, to interpret theConstitution
in the interest and well being of those people of the Nation(who gave themselves the
Constitution).The forerunner to this cause has been the Supreme Court, whichhas often and
consistently read the provisions of the UniversalDeclaration, so as to include and provide the
basic and primary rights tothe people of India. The Hon’ble Court, while interpreting the
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provisionsof the constitution, has not limited the scope of the various articles towhat was laid
and understood by the constitutional framers (as reflectedin the Constitutional Assembly
Debates) and for the betterment and wellbeing of the Country as a whole, the Court has read
the DirectivePrinciples of State Policy in the Fundamental rights. In this process ofdeciding
case after case on the aspect of human rights of the citizens, theCourt has consistently read
the scope of Human Rights as in consonancewith the provisions of the Universal declaration,
along with the otherInternational Covenants, to which India is a party.
Thus the UniversalDeclaration has remained a mere paraphrase said to be the guiding
forcefor protection of Fundamental Rights but the Supreme Court, by suchreading and
amalgamating the provisions of this UN Magna Cartabroadened the outlook of our Organised
freedom loving society, or whatis known as the Indian democracy.
In the case of Satwant Singh Sawhney v. Asst. Passport Officer,Government of
India, the Supreme Court held that in the light of theUniversal Declaration stating “Everyone
has the right to leave anycountry including his own”, the Right was available only to
normalcitizens i.e. it was not available and not applicable to criminals avoidingpenalties or
political agitators etc., likely to create International tension orto persons who may disgrace
our country abroad. The case, which wasconcerned with the issue of right to movement, the
Hon’ble SupremeCourt held that as under the Universal declaration of human rights,
"Everyone has the right to leave any country including his own" and itbeing
applicable to normal persons did does not apply to criminalsavoiding penalties or political
agitators, etc. likely to create internationaltensions or persons who may disgrace our country
abroad.
In the celebrated case of I.C. Golak Nath v. State of Punjab,The Hon’ble Supreme
Court,14 while discussing the constitutional validityof a provision, observed that ‘the
importance of Fundamental Rights inthe world of today cannot be lost sight of.’ The Court,
considering thevarious aspects of Human Rights that the Constitution contemplated,
alsoobserved that ‘the Declaration represented the civil, political and religiousliberties for
which men have struggled through the centuries and thosenew social and economic rights of

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the Individual which the Nations wereincreasingly recognising in their Constitutions. Some
of these wereproclaimed during the French Revolution and are included in thedeclarations of
Nations taking pride in the dignity and liberty of theIndividual. They are epitomized in the
Preamble, and more fullyexpressed in Parts III and IV of our Constitution.’ The Court also
laid thatthe Declaration was intended to give a key to social progress byenvisaging rights to
work, to education and to social insurance.
The Court specifically laid that on a comparison of the UniversalDeclaration with
Parts III and IV of our Constitution remarkablesimilarity in the two documents was to be
found. Both were manifestos ofman's inviolable and fundamental freedoms and thereby, were
to beconstrued as being the forerunners for the enforcements and protection ofhuman right.
In the case of Nawabkhan Abbaskhan v. State of Gujarat,15 anobservation of the
Court was that in Indian constitutional law, naturaljustice does not exist as an absolute jural
value but is humanistic ally readby Courts into those great rights enshrined in Part III as the
quintessenceof reasonableness. This proved a deviation from the established principlesbut the
Court was quick to reconcile and held that it was not unmindfulthat from Seneca's Medea,
the Magna Carta and Lord Coke to theconstitutional norms of modern nations and the
Universal Declaration ofHuman Rights it is a deeply rooted principle that "the body of no
freeman shall be taken, nor imprisoned, nor diseased, nor outlawed, norbanished nor
destroyed in any way" without opportunity for defence.
The landmark case of Kesavananda Bharati Sripadagalvaru v.State of Kerala,
with the text of the judgement running in hundreds, animportant aspect of human rights was
involved. The Court took intoconsideration, that while our fundamental rights and directive
principleswere being fashioned and approved of by the Constituent Assembly, onDecember
10, 1948, the General Assembly of the United Nations adopteda Universal Declaration of
Human Rights and though the Declaration wasnot be a legally binding instrument but it an
authority to showed howIndia understood the nature of Human Rights.
The Court also considered the argument of Mr. Palkhivala, whocontended that apart
from Article 13(2) fundamental rights were based onUniversal Declaration of Human Rights

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and being natural rights, wereoutside the scope of amendment. On this basis and on
comparison of theposition of the Fundamental Rights in the Indian Constitution, the
Courtpropounded the theory of basic structure and came to hold that theFundamental rights
were also a part of the basic structure and being assuch was thus were inviolable and could
not be curtailed by anyamendment what so ever.
In the case of Additional District Magistrate, Jabalpur v.Shivakant Shukla,it was
submitted before the Court by the Counselfrom the Respondent that the Court should keep in
mind the UniversalDeclaration of Human Rights in interpreting the Constitution, the basisfor
which was Art. 51 of the Constitution, which laid for respect ofInternational Law, the
principle of British courts that International Law ispart of the law of the land and that the
Universal Declaration was a partof Indian Law by the operation of Art. 372 of the
Constitution, seemingto imply that the Court should read the Universal Declaration of
HumanRights into the Constitution as India was one of the signatories to it.However, the
Court held that the submissions appeared as nothing morethan appeals to weave certain
ethical rules and principles into the fabricof our Constitution which is the paramount law of
this country andprovides the final test of validity and enforceability of rules and
rightsthrough courts.
In the case of Prem Shankar Shukla v. Delhi Administration, atelegram was sent
to the Court protesting against the humiliation andtorture of being held in irons in public,
back and forth, when, as undertrials kept in custody in the Tihar Jail, i.e. being kept in
handcuffs wascontended by the petitioner. The practice had persisted despite the
courtsdirection not to use irons on him. The Court held that the blurred area of'detention
jurisprudence' where considerations of prevention of escapeand a personhood of prisoner
come into conflict, the Court laid that evenafter discussing the relevant statutory provisions
and constitutionalrequirements, Court was to remember Article 519 of the
UniversalDeclaration of Human Rights, 1948, all persons deprived of their libertyshall be
treated with humanity and with respect for the inherent dignity ofthe human person.J.
Krishna Iyer categorically stated that in interpreting theconstitutional and statutory provisions

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the Court must not forget the coreprinciple found in Article 5 of the Universal Declaration of
Human
Rights, 1948.The court held that the ambit of personal liberty protectedby Article 21 is wide
and comprehensive. It embraces both substantiverights to personal liberty and the procedure
provided for their deprivationand the handcuffing was a violation of right to live with
dignity, unlessrestricted in the interest and security of the state.
In the case of Francis Coralie Mullin v. Administrator, UnionTerritory of Delhi,
the question before the Court was whether the rightto life was limited only to protection of
limb or faculty or it went furtherand embraced something more. The Court specifically laid
that “the rightto life includes the right to live with human dignity and all that goes alongwith
it, namely, the bare necessaries of life such as adequate nutrition,clothing and shelter and
facilities for reading, writing and expressing19 Art. 5 --No one shall be subject to torture or
to cruel, inhuman or degrading treatment orpunishment.oneself in diverse forms, freely
moving about and mixing andcommingling with fellow human beings.” For the broad
interpretation ofthe right, the Court referred to the right to protection against torture orcruel,
inhuman or degrading treatment, enunciated in Article 5 of theUniversal Declaration of
Human Rights. The right extended to prisonerswhere as part of the right to live with human
dignity, they would beentitled to have interviews with the members of his family and
friendsand no prison regulation or procedure laid down by prison regulationregulating the
right to have interviews with the numbers of the family andfriends can be upheld as
constitutionally valid under Articles 14 and 21,unless it is reasonable, fair and just.
In this case, the reasoning adopted by the Court can be held as tohold the provisions
of Universal Declaration as a supportive clause, forthe protection, preservation and
enhancement of Human Rights. Hereby,it also needs to be signified that the Court gave
emphasis on the aspectsof human rights, only when it found the Fundamental Rights
notexpressly stating the extent of liberty and freedom granted to individualsof state, namely
the citizens of India. The reasoning also needs to beunderstood as that the Constitution itself

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recognising the human rights,the Universal Declaration plays the role of the lighthouse, in
whose lightthe concept of human rights need to be understood.
Further in the case, Justice Bahgwati, while deciding on the aspectof the Right of a
detenue held that the Right to protection against torture orcruel, inhuman or degrading
treatment (in prison), laid under Article 5 ofthe Universal Declaration of Human Rights is
implicit under Article 21 ofeth Constitution of India, under Right to live.
Thus we find that the Judiciary has made continuously read andinterpreted the
provisions of eth Universal Declaration of Human Rightsunder eth Fundamental Rights and
the Directive Principle of State Policy,so as to include and extend the guaranteed freedoms
under theConstitution, which fall within the Broad category of Human Rights. Anattempt has
been made there, in render to render the Constitution a livingone, to include more and more
freedoms to individuals, on the verge ofsetting a new social order where all human beings are
equal and theirrights and freedoms are protected at the expense of the State.
While considering the case of S.P. Mittal v. Union of India,when the Court tried to
understand the basis of Fundamental Rights, itreferred to the Universal Declaration. The
Court was precise in layingthat Articles 14 and 19 of the Constitution of India do not confer
anyfanciful rights. They conferred rights, which were elementary for theproper and effective
functioning of a democracy and were universally soregarded, as being evident from the
Universal Declaration of HumanRights. The Court laid that many countries in the civilised
world hadparted with their sovereignty in the hope and belief that their citizens willenjoy
human freedoms and they preferred to be bound by the decisionsand decrees of foreign
tribunals on matters concerning human freedoms.
Therefore, the Court assertively lay that had Articles 14 and 19been put out of
operation in regard to the bulk of laws which thelegislatures are empowered to pass, Article
32 would be drained of itslife-blood. Also that it was not possible to fit fundamental rights
anddirective principles in two distinct and strictly defined categories, but itwas to be stated
broadly that fundamental rights represent civil andpolitical rights while directive principles
embody social and economicrights, representing the broad spectrum of human rights, as

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contemplatedin the Universal Declaration of Human Rights which contained not onlyrights
protecting individual freedom (Articles 1 to 21) but also social andeconomic rights intended
to ensure socio-economic justice to everyone(Articles 22 to 29).
Therefore it can be found that the Court tried to advance andpresent the model of
Human Rights, as laid under Fundamental Rightsand the Directive Principles in the Indian
Constitution, on the basis of themodel of Human Rights as laid in the Universal Declaration
in two parts,as laid by the Court above. Therefore there was a paradigm shift from thestrictest
interpretation of the Constitution to the understanding of theFundamental Rights and
Directive Principles on the basis of the HumanRights model.
While considering the petition in the matter of People's Union forDemocratic
Rights v. Union of India, the question being as to whatwas the true scope and meaning of
the expression "traffic in human beingand beggar and other similar forms of forced labour" in
Article 23, theSupreme Court came to a conclusion that when the Constitution-
makersenacted Article 23 they had before them Article 4 of the UniversalDeclaration of
Human Rights but they deliberately departed from itslanguage and employed words which
would make the reach and contentof Article much wider than that of Article 4 of the
Universal Declarationof Human Rights. They banned 'traffic in human beings' which was
anexpression of much larger amplitude than 'slave trade' and they alsointerdicted "beggar and
other similar forms of forced labour".
Thus the Court departed to what was laid in the UniversalDeclaration, holding it as
inadequate and further extended the scope ofprotection available under the said proviso in the
Constitution to bringwithin its ambit other forms of obnoxious acts, which violated the
humanrights.
The Court went even before the Universal Declaration came intobeing and holding
that the practice of forced labour was condemned inalmost every international instrument
dealing with human rights acceptedthat as far back as 1930, International Labour
Organisation adopted aConvention laying down that every member of the International
LabourOrganisation which ratifies this convention shall "suppress the use offorced or

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compulsory labour in all its forms" and this prohibition adoptedby the International Labour
Organisation in 1957. The Court did not stophere but examined the provisions in other
documents as well such asEuropean Convention of Human Rights, International Covenant on
Civiland Political Rights etc. The Court thereby came to a stand that Article 23enacts a
prohibition against forced labour in whatever form it may befound. The Court, declining the
constitution referred to its earlier decisionin Maneka Gandhi v. Union of India, where it
was laid that whileinterpreting the provisions of the Constitution conferring
fundamentalrights, the attempt of the court should be to expand the reach and ambit ofthe
fundamental rights rather than to attenuate their meaning and content.
While considering the case of Indian Express Newspapers(Bombay) P. Ltd. v.
Union of India, the Court read the Art.19 of theUniversal Declaration of Human Rights
declaring that "Everyone has theright to freedom of opinion and expression; this right
includes freedom tohold opinions without interference and to seek, receive and
impartinformation and ideas through any media and regardless of frontiers” andthus relooked
at the position of the freedom of the press, being one of theitems around which the greatest
and the bitterest of constitutionalstruggles waged in all countries where liberal Constitutions
prevailed.
In the case of Charan Lal Sahu v. Union of India, the Court,while deliberating on
the issue of the production or carrying on trade indangerous chemicals by multinational
industries on the soil of ThirdWorld countries held that it called for the strictest enforcement
ofconstitutional guarantees for enjoying human rights in free India. For thisissue, the
Supreme Court drew its attention towards the Charter ofUniversal Declaration of Human
Rights. The Court considered Article 1,3, 6, 7 and 8 of the Declaration which held for all
human beings beingfree and equal in dignity and rights, everyone having the right to
life,liberty and security of his person, everyone having the right torecognition everywhere as
a person before the law, all being equal beforethe law and being entitled without any
discrimination to equal protectionof the law and everyone having the right to an effective
remedy bycompetent National Tribunal for acts violating fundamental rightsguaranteed to

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him by the Constitution or by the law. The Court,considering the importance of these
provisions reiterated that the Indiancitizens had a right to live, which could not be taken away
by the Unionor the State, except by a procedure which is just, fair and reasonable andif in
any event, these rights are violated, the Court would come to theirprotection and it would be
the duty of the judiciary to apply all relevantprinciple of national all well as International law
so as the protect thecitizens from such infringement.
In the case of Bubic Kariusz v. Union of India, while consideringthe aspect of
Preventive detention law, the court observed that detentionof a foreign national involves an
element of international law and humanrights and the appropriate authorities ought not to be
seen to have beenoblivious of its international obligations in this regard. The
UniversalDeclaration of Human Rights include the right to life, liberty and securityof person,
freedom from arbitrary arrest and detention; the right to fairtrial by an independent and
impartial tribunal; and the right to presume tobe an innocent man until proved guilty. Thus
when an act of preventivedetention involves a foreign national, though from the national
point ofview the municipal law alone counts in its application and interpretation;it is
generally a recognised principle in national legal system that in theevent of doubt the national
rule is to be interpreted in accordance with theState's international obligations. The Court for
this purpose referred itsearlier judgment as in the case of Jolly George Verghese v. Bank of
Cochin, where J. Krishna Iyer held that there was a need forharmonisation, whenever
possible, bearing in mind the spirit of thecovenants and in this context it was to be borne in
mind that thefundamental rights guaranteed under our Constitution were in conformingline
with those in the Universal Declaration and the other Covenantsratified and signed by India.
Thus the Court laid that for all purposes of interpreting the scope ofFundamental Rights and
other municipal law principles applicable aswell, International documents need to be
referred, especially when India isa party to it.
In the case of Mohini Jain v. State of Karnataka, the SupremeCourt looked into the
Provisions of the Universal Declaration to interpretthe Right to Education as a concomitant
to Fundamental Rights enshrinedunder Part III of eth constitution. The words in the

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declaration that“Education shall be directed to the full development of Humanpersonality…”

were held to be inclusive under Article 21 of the IndianConstitution, which was thus to be
guaranteed and enforced by theJudicial activism.
In the case of Life Insurance Corporation of India v. ManubhaiD. Shah, the
Supreme Court observed that the "Speech is God's gift tomankind through which a human
being conveys his thoughts, sentimentsand feelings to others." "Freedom of speech and
expression is thus anatural right which a human being acquires on birth" and is, "therefore,
abasic human right." "Everyone has the right to freedom of opinion andexpression where the
right includes freedom to hold opinions withoutinterference and to seek and receive and
impart information and ideasthrough any media and regardless of frontiers,” proclaims the
UniversalDeclaration of Human Rights (1948)29 and as the people of India declaredin the
Preamble of the Constitution to secure to all citizens liberty ofthought and expression as also
reflected in Article 19(1)(a), the Rightneeds to be protected in the interests of humanity and
mankind at large.
Further, in the case of State of Arunachal Pradesh v. KhidiramChakma,the
Supreme Court accepted the view of two authors namelyBlackburn and Taylor, that Art. 14
of the Universal declaration of HumanRights, which speaks of the right to enjoy asylum, has
to be interpreted inthe light of the instrument (i.e. the Universal Declaration itself) as awhole;
and must be taken to mean something, which is much more than adocumentary compilation
of International Human Rights Standards, but ahuman right code for the effective
development of the citizens.
While considering the case of Consumer Education andResearch Centre v. Union
of India,the Hon’ble Supreme Court ofIndia laid that Art. 1 of the Universal Declaration32
asserts humansensitivity and moral responsibility of every state.33 The Court laid thatthe
constitutional concern of social justice as an elastic continuousprocess is to accord justice to
all sections of the society by providingfacilities and opportunities to remove the handicaps
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thehuman rights, as contemplated in the Universal Declaration included rightto live with
dignity.
One judgment of the Supreme Court, which has slipped thewatchful eyes of Human
right activists, is Murlidhar Dayandeo Kesekarv. Vishwanath Pandu Barde, where the
Hon’ble Supreme Court heldthat right to economic empowerment to the Scheduled Tribes
asenshrined under Art. 46 of the Constitution, is a fundamental human rightunder Arts.
1,3,17,22 and 25 of the Universal Declaration of HumanRights, 1948 of the protected tribes
while the Court reiterated the fact thatthe State is enjoined under Declaration on the Right to
Development, toprovide facilities and opportunities consistent with Art 38 of theConstitution.
Thus when it is said that Samatha35 was the first case on theincorporation of Right to
development is a misnomer.
While considering the merits of the case in the matter of ChameliSingh v. State of
U.P., in context of providing just and basic humanconditions of life and a peaceful living, the
Supreme Court observed that‘in any organised society, right to life as a human being is nor
ensured bymeeting only the animal need of man. It is secured only when he isassured of all
facilities to develop himself and is freed from restrictionswhich inhibit his growth. All human
rights are designed to achieve thisobject. Right to live, as guaranteed in any civilized society
implies theright to food, water, decent environment, education, medical care andshelter.
These are basic human rights known to any civilised society’ andfor the purpose of extending
such rights, the Court further observed that‘all civil, political, social and cultural rights
enshrined in the UniversalDeclaration of Human Rights and Convention or under the
Constitutionof India cannot be exercised without these basic human rights.’ Thus thescope of
the basic, primary and guaranteed rights was, as according to theCourt, to extend and include
all those rights, which were considered bythe World community, as in 1948, as being vital
and necessary for thegrowth of human mind.
The Supreme Court, in the case of Bandhua Mukti Morcha v.Union of India,while
deliberating the issue of employment of Childrenlaid that Article 26(1) of Universal
Declaration of Human Rights assuredthat everyone has the right to education, which shall be

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free, at least at theelementary and fundamental stages. Elementary education shall

becompulsory. Technical and professional education shall be madeavailable and higher
education shall equally be accessible to all on thebasis of merit. Education enables
development of human rights andfundamental freedoms. It promotes understanding tolerance
andfriendship among people. It is, therefore, the duty of the State of providefacilities and
opportunities to the children driven to child labour todevelop their personality as responsible
citizens.
Thus the Court extended the assured right of development of thechild and thus nation
as a whole, by directing the Government to makeadequate provisions for those who had been
deprived the means to growand to vitalize the cause of nation.
In the case of D.K. Basu v. State of West Bengal, the SupremeCourt revisited one of
the aspects of the Universal Declaration and laidthat the Universal declaration of Human
Rights, 1948, which marked theemergence of a worldwide trend of protection and guarantee
of certainbasic Human Rights, stipulates in Art. 5 that “No one shall be subjectedto torture or
to cruel, inhuman and degrading treatment or punishment”and therefore, showing its concern
while considering this Writ Petition onan issue of Custodial Death the Court considered that
‘despite the piousdeclaration the crime continues unabated, though every civilized
nationshows its concern and takes steps for its eradication.’
On the serious issue of plight of the ‘flesh workers’, in a writpetition in the matter of
Gaurav Jain v. Union of India, the SupremeCourt accepted that the fallen/trapped victims
of flesh trade are subjectedto cruel, inhuman and degrading treatment which are
obnoxious,abominable and an affront to Art 5 of the Universal Declaration, besidesbeing
against the spirit of the Indian Constitution. The Court furtherwent on to say that that Human
Rights are derived from the dignity andworth inherent in the human person, and these Human
Rights andFundamental Freedoms have been reiterated by the UniversalDeclaration. So, for
all practicable purposes of recognising the scope ofHuman Rights, the Universal Declaration
has to be paid heed to. Thus theSupreme Court opened the path for reading the provisions of

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theUniversal Declaration while constructing the extent of applicability of theFundamental

Rights and the Directive Principles.
Again, in considering the subject matter of Samatha v. State ofA.P., the Court held
that the right to health, education, pollution-freeatmosphere, potable water, shelter, etc were,
along with all the basichuman rights declared under the Universal Declaration of Human
Rightsand thus are an integral part of right to life under Article 21 and otherfundamental
rights provided in Part III of the Constitution.
In the case of People’s Union of Civil Liberties (PUCL) v. Unionof India, the issue
was the legitimacy of Telephone tapping done byCBI, as an infringement of the Right to
privacy and to freedom ofExpression. The exact judgment of the Court was that “when a
person istalking on telephone, he is exercising his right to freedom of Speech
andExpression.” Therefore, “telephone tapping, unless it comes within thegrounds of
reasonable restrictions under Art. 19(2) would infract Art.19(1)(a) of the Constitution.” The
Court, while laying stress onInternational law, viewed through Universal Declaration of
HumanRights, 1948 and the International Covenants on Civil and PoliticalRights, 1966,
accepted that the present International law is not confinedto regulating relations between the
states but it is more than ever, now,aimed at individuals and matters of Social Concern such
as health,education and economics, apart from other human rights, fall within theambit of
Fundamental Regulations and through the ‘Law ofIncorporation’, adopted rules of customary
international law (namely theHuman Rights in the Universal declaration in this case) which
were notcontrary to the provisions of municipal law, in the domestic law.
In the case of Municipal Corporation of Delhi v. FemaleWorkers (Muster Roll),
the Supreme Court of India, whilehighlighting the importance of the Universal Declaration
laid that ‘theUniversal Declaration of Human Rights, 1948 set in motion the
universalthinking that human rights are supreme and ought to be preserved at allcosts. This
has been followed in a series of Conventions and India being asignatory has to respect them.
As recently, as in the year 2000, in the case of Chairman, RailwayBoard v.
Chandrima Das, where a Bangladeshi women was gangraped by the Indian Railway

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employees in a Railway building, the Courtallowed compensation to the victim while laying
for future reference, thatrelief could be granted to her under Public Law as there was a
violation ofFundamental Rights firstly and secondly on the grounds of
Domesticjurisprudence based on Constitutional Principles and also on grounds ofHuman
Rights Jurisprudence based on Universal Declaration of HumanRights, 1948, which has the
international recognition as the ‘Moral Codeof Conduct’, having been adopted by the
General Assembly of the UnitedNations. The Court specifically laid that the applicability of
UniversalDeclaration of Human Rights and principles thereof may have to be read,if need be,
into the domestic jurisprudence.
Thus the Court laid a completely laid a new branch of law, namelythe Human Right
jurisprudence, which was totally based on the UniversalDeclaration of Human Rights and
thus giving reference to the HumanRights under the Constitution of India, the Court went to
the extent ofprotecting the Human Rights at the expense of the state, by allowing thevictim a
Public Law remedy, when private law remedy was available toher.
The Court, also, reiterating the importance of the Universaldeclaration laid that ‘since
the term “life” is also recognized as a basicHuman Right in the Universal declaration, it has
to have the samemeaning and interpretation as has been placed on that word by theSupreme
Court in its earlier decisions relating to Art. 21 of the Constitution. The Supreme Court went
on to say that “our Constitutionguarantees all the basic and fundamental Human Rights set
out in theUniversal Declaration of Human Rights, 1948, to its citizens and other persons.”

EXPANSION OF ARTICLE 21
Article 21 reads as follows, protection of life and personalliberty -"No person shall be
deprived of his life or personal libertyexcept according to the procedure established by law."
Theexpansion of Article 21 of the Constitution has taken place in tworespects:
1. The expression "the procedure established by law" receiveda new interpretation not
intended by the founding fathers ofthe Constitution. In 1950, the very first year of the
Constitution,the Supreme Court in the case A.K. Gopalan v. State of reflecting on the

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intentions of the Constitution-makers,held that "procedure established by law" only meant

thata procedure had to be set by law enacted by a Legislature.This phrase was deliberately
used in Article 21 in preferenceto the American "Due Process" clause. Three decades
later,InManeka Gandhi v.Union of India case, the Supreme Courtnoted that "the Supreme
Court rejected its earlier interpretationand holds that the procedure contemplated under
Article21 is a right, just and fair procedure, not an arbitraryor oppressive procedure.The
procedure, which is reasonableand fair, must now be in conformity with the test of article 14
- "in effect it has become a Due Process." There isno doubt that the experien1:e of National
Emergency (1975-1977) prompted the court to go all out for vindication ofhuman
rights.Since then every case of infringement of rightsby the Legislature has undergone
judicial scrutiny in termsof the new interpretation laid down in the Maneka Gandhi'scase.
Further, this approach has led to procedural due processinnovations such as the right to claim
legal aid for thepoor and the right to expeditious trial.
2. The judiciary interprets 'the right to life and personal liberty'to encompass all basic
conditions for a life with dignity andliberty. Such an approach allows it to come down
heavilyon the system of administration of criminal justice and lawenforcement. It also brings
into the fold of Article 21 allthose directive principles of state policy that are essentialfor a
"life with dignity."Thus, the judiciary has interpreted "Life" to include the rightto possession
of each organ of one's body and a prohibition of tortureor inhuman or degrading treatment by
Police. In the FrancisCoralie Mullin v. The Administrator, Union territory of Delhi,the
Supreme Court held that "life" couldn't be restricted to mereanimal existence, or physical
survival. The right to life meansthe right to live with dignity and all that goes with it - the
basicnecessities of life such as adequate nutrition,clothing, shelterand facilities for reading,
writing and expressing oneself Many ofthe Article 21 cases that came before the High Courts
and theSupreme Court often revealed "a shocking state of affairs andportray a complete lack
of concern for human values " The HussainaraKhatoon v Home Secretary, Bihar case:It has
been held by the Supreme Court that though speedy trial isnot specifically enumerated as a
fundamental right, it is implicitin the broad sweep and content of Article 21, which deals

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with the'right to life and liberty'. Justice Bhagwati held "if a person isdeprived of his liberty
under a procedure which is not 'reasonable','fair' or 'just', it would fall foul of Article 21.
There can, there-fore, be no doubt that speedy trial, and by speedy trial we meanreasonably
expeditious trial, is an integral and essential part ofthe fundamental right to life and liberty
enshrined in Article 21.
It was also held by the Supreme Court that 'detention in jail fora period longer than
what they would have been sentenced for, ifconvicted, is illegal as being a violation of their
fundamental rightunder Article 21 of the Constitution.Deoraj Khatri v. State of Bihar case
raised the case ofPolice brutality in which 80 suspected criminals were brutallyblinded
during Police investigation (Bhagalpur Blinding case).The Supreme Court condemned it as a
"barbaric act and a crimeagainst mankind." In Sheela Barse v. The State of Maharashtracase,
the Court was confronted with the custodial violence againstwomen and it laid down certain
guidelines against torture and illtreatment of women in Police custody and jails.
The Supreme Court has also read into Article 21 a right to monetarycompensation for
deprivations of the right to life and liberty suffered at the hands of the State. This was
highlighted in theRudal Shah v. State of Bihar case.The emergence of the right to
compensation has nullified one of the reservations made by Indiain its instrument of
accession to the human rights Covenants,which stated that the Indian law did not recognize
such a rightin the event of right deprivation.
The health problems of workers in the asbestos industry led theSupreme Court in the
case Paramanand Katra v. Union of Indiato rule that the right to life and liberty under Article
21 also encompassesthe right of the workers to health arid medical aid. The right to life has
been held to include the right to receiveinstant medical aid in case of injury and the right of a
child toreceive free education up to the age of fourteen.

RIGHT AGAINST SLAVERY

Following the Slavery Convention of 1926, and UDHR, the General Assembly
adopteda Convention for the Suppression of the Traffic in Persons and of Exploitation of the

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Prostitutionof others in 1949. As supplementary to the 1926 Convention, the ECOSOC

succeededin getting a Supplementary Convention on the Abolition of slavery, slave trade
andinstitutions and practices similar to slavery adopted in 1956 through an international
conference.The Convention on the Elimination of All Forms of Discrimination against
Women1979 also contains a provision (article 6) for suppression of all forms of traffic in
womenand their exploitation and prostitution. The ILO Forced Labour Convention of 1930
and thesubsequently revised Abolition of Forced Labour Convention on 1957 are also
relevant inthis context.
FREEDOM FROM TORTURE
Following the provisions of UDHR, the Genocide Convention of 1948, and the
covenants,the United Nations has adopted a number of instruments elaborating the
freedomfrom torture and other forms of cruel, inhuman or degrading treatment or
punishment. TheDeclaration on the Protection of Women and Children in Emergency and
Armed Conflictadopted by the General Assembly in 1974 condemns torture and other similar
acts againstwomen and children to be crimes. In 1955 the First UN Congress on the
Prevention ofCrime and the Treatment of Offenders adopted the Standard Minimum Rules
for the Treatmentof Prisoners. These rules were commended to states for implementation, by
theECOSOC. Subsequently, the General Assembly adopted a Declaration in 1975 and a
Conventionon the Protection of All Persons from Being Subjected to Torture and Other
Cruel,Inhuman or Degrading Treatment or Punishment in 1984.The General Assembly
welcomed the WHO initiative and adopted a set of “Principlesof Medical Ethics relevant to
the role of health personnel, particularly physicians, in theprotection of prisoners and
detainees against torture...”The seventh UN Congress on the Prevention of Crime and the
Treatment of Offendersevolved the UN Standard Minimum Rules for the Administration of
Juvenile Justice. TheGeneral Assembly adopted these “Beijing Rules” in 1985. These rules
aim at protection ofchildren’s rights in the administration of justice.
PROHIBITION OF TORTURE

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The prohibition of torture is codified in the UDHR (Article 5), ICCPR (Article 7)and
CAT, and also in regional treaties such as ECHR (Article 3), the EuropeanConvention for the
Prevention of Torture and Inhuman or Degrading Treatmentor Punishment, ACHR (Article
5), the Inter-American Convention to Prevent andPunish Torture and the African Charter on
Human and Peoples’ Rights (Article 5),and in some standard-setting instruments, including
the Standard MinimumRules for the Treatment of Prisoners, the Basic Principles for the
Treatment ofPrisoners, the Body of Principles for the Protection of All Persons under Any
Formof Detention or Imprisonment, the United Nations Rules for the Protection of
Juveniles Deprived of their Liberty, and the Principles on the Effective Investigationand
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatmentor Punishment.
Torture is also prohibited by various provisions of the 1949 GenevaConventions, in
particular their common Article 3. Furthermore, the Rome Statuteof the International
Criminal Court defines torture as a “crime against humanity”when it is knowingly committed
as part of a widespread or systematic attackagainst any civilian population.
“The legal and moral basis for the prohibition oftorture and other cruel, inhuman or
degradingtreatment or punishment is absolute andimperative and must under no
circumstances yieldor be subordinated to other interests, policiesand practices.”

WHAT IS TORTURE?
Article 1 of CAT defines torture as any act – committed by a public official or other
personacting in an official capacity or at the instigation of or with the consent of such a
person –by which severe physical or mental pain or suffering is intentionally inflicted for a
specificpurpose, such as extortion of information or confession, punishment, intimidation
ordiscrimination. This definition of torture is more limited than that contained in Article 7of
the ICCPR, which does not mention the requirement that the acts be carried out bysomeone
acting in an official capacity and does not refer to the intentional nature or“specific purpose”
elements. In recent years, however, the Committee Against Torturehas begun to use an
expanded definition of the scope of torture to include crimes, suchas domestic violence

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against women and children or the use of forced labour by privatepersons, that the State has
failed to act with due diligence to prevent, investigate andremedy. Similarly, the UN Special
Reporter on torture underlines that the failure ofStates to eliminate such persistent practices
as intimate partner violence, child and forcedmarriage, female genital mutilation and so-
called “honour crimes”, and their failure tocriminalize marital rape and to repeal legislation
that exculpates rapists who marry theirvictims, violates the obligation to prevent and
prosecute torture and cruel, inhuman anddegrading treatment or punishment.
Under the definition of torture contained in CAT, acts that result in suffering but
lackone of the essential elements of torture – intent, specific purpose and powerlessnessof the
victim – may, depending on the form, purpose and severity of suffering, beconsidered to
constitute cruel, inhuman or degrading treatment or punishment.
Given that all forms of legal punishment inflict a degree of suffering and containsome
element of humiliation, punitive acts cannot be regarded as cruel, inhuman ordegrading
unless some additional aspect is present. Examples of acts considered cruel,inhuman or
degrading punishment by the Committee Against Torture include solitaryconfinement
beyond 7 days, routine strip searching of detainees and the enforcedwearing of name badges
rating a person’s proficiency in the local language, which wasdeemed to be both
discriminatory and humiliating.
“Torture is intended to humiliate, offend and degradea human being and turn
him or her into a ‘thing’.”
“… It is the powerlessness of the victim that makestorture such an evil, the fact
that one person hasabsolute power over another. This distinguishestorture from other
forms of cruel, inhuman ordegrading treatment… And this is why, like slavery,torture
is the most direct attack on the core ofhuman dignity, a special form of violence
whoseprohibition is the highest norm of international law,jus cogens…”

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WHAT STATE OBLIGATIONS ARISE FROM THE PROHIBITION OF

TORTURE?
Governments must not restrict or allow derogations from the right to personal
integrityand dignity, even in times of war and in states of emergency. The CAT-
Committeehas ruled that even when a suspect is believed to hold information about
imminentattacks that could endanger the lives of civilians, the State may not employ methods
ofinterrogation that would violate the prohibition on torture and ill treatment.
PROCEDURAL SAFEGUARDS DURING POLICE CUSTODY
The human rights monitoring bodies have received numerous complaintsregarding
torture and ill treatment that have occurred during police custody.The following procedural
safeguards limit considerably the exposure of arrestedpersons to that risk:
• notification of custody: the right of arrested persons to have the fact of
theirdetention notified to a third party of their choice (family member, friendor consulate);
• the right of detainees to have access to a lawyer and his/her presence
duringinterrogation;
• the right of detainees to request a medical examination by a physician of theirchoice
(in addition to any medical examination carried out by a physician calledby law enforcement
authorities);
• availability of centralized registers of all detainees and places of detention;
• exclusion of evidence elicited through torture or other forms of coercion;
• audio- or videotaping of all police interrogations.
These prohibited forms of torture and ill-treatment may include restraining a personin
a painful position, hooding, prolonged exposure to loud music or sleep deprivation,threats,
violent shaking or use of cold air to chill the detainee. The absolute prohibitionof torture and
ill-treatment is founded on the premise that if any exceptions arepermitted, the use of torture
is likely to increase.

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States have an obligation to prevent, investigate, prosecute and punish any act
oftorture. They must provide reparation to victims, including medical and
psychologicalrehabilitation and compensation for material and moral damages.
STATE OBLIGATIONS UNDER THE CONVENTION AGAINST
TORTURE AND ITSOPTIONAL PROTOCOL
States Parties to the Convention have a duty to:
• enact legislation to punish torture, empower the authorities to prosecute andpunish
the crime of torture wherever it has been committed and whatever thenationality of the
perpetrator or victim, and prevent these practices (principle ofuniversal jurisdiction contained
in Article 5 of the Convention);
• ensure that education and information regarding the prohibition of torture arefully
included in the training of civil or military law enforcement personnel,medical staff, public
officials and other persons who may be involved inthe custody, interrogation or treatment of
arrested, detained or imprisonedindividuals (Article 10 of the Convention);
• ensure that interrogation rules, instructions, methods and practices and
thearrangements for the custody and treatment of persons subjected to any formof arrest,
detention or imprisonment are systematically reviewed by independentbodies (Article 11 of
the Convention);
• ensure that complaints of torture and ill-treatment are investigated thoroughlyby
competent authorities, that persons suspected of torture are brought tojustice, that effective
remedies are available to victims, and that laws aredrawn up to implement measures that
prevent torture and ill-treatment duringdetention (Articles 12–14 of the Convention);
• refrain from expelling or returning (“refoulement”) or extraditing a person toanother
State where it is likely that he or she will be exposed to torture (principleof “non-
refoulement”) (Article 3 of the Convention);
• submit periodic reports to the CAT-Committee on the measures taken to giveeffect
to the Convention, or other reports that the Committee may request(Article 19 of the
Convention);

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• establish independent national preventive mechanisms to carry out visits to allplaces

of detention (OPCAT, adopted in 2002).
Prohibition of cruel, inhuman or degrading punishment
Minimum standards for the prohibition of cruel, inhuman or degrading treatment
orpunishment vary from country to country. However, according to rulings by
numerousbodies – the UN Human Rights Committee, the Committee on Economic,
Socialand Cultural Rights, the Committee Against Torture, the Committee on the Rights
ofthe Child, the European Court of Human Rights, the Inter-American Court of
HumanRights and the African Court of Human and Peoples’ Rights – corporal punishmentin
all its forms constitutes cruel, inhuman or degrading punishment and is thereforeprohibited
under contemporary human rights law. Most of the world also treats capitalpunishment as
cruel, inhuman and degrading punishment.
The right of detainees and prisoners to be treated with humanity
Article 10 of the ICCPR guarantees the right of all persons deprived of their liberty to
betreated with humanity and respect for their inherent dignity. According to the Human
Rights Committee, people deprived of their liberty may not be “subjected to anyhardship or
constraint other than that resulting from the deprivation of their liberty”.
A number of soft law instruments specify minimum standards applicable to detention.
As at March 2016, 48 States had banned the corporal punishment of children in all settings,
including the home; were publicly committed to reform the law in this regard; 36 recognized
corporal punishmentas a sentence of the courts; and 21 had not yet fully prohibited it in any
setting of children’s lives (www.endcorporalpunishment.org).
Selected United Nations minimum standards in respect ofdetention and the conduct of
law enforcement
• Safeguards Guaranteeing Protection of the Rights of Those Facing the
DeathPenalty, 1948
• Standard Minimum Rules for the Treatment of Prisoners, 1955 (revised andadopted
as the “Nelson Mandela Rules” in December 2015)

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• Code of Conduct for Law Enforcement Officials, 1979

• Principles of Medical Ethics relevant to the Role of Health Personnel,
particularlyPhysicians, in the Protection of Prisoners and Detainees against Torture andOther
Cruel, Inhuman or Degrading Treatment or Punishment, 1982
• Safeguards guaranteeing Protection of the Rights of those facing the DeathPenalty,
1984
• United Nations Standard Minimum Rules for the Administration of JuvenileJustice
(the “Beijing Rules”), 1985
• Body of Principles for the Protection of All Persons under Any Form of Detentionor
Imprisonment, 1988
• Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,
1990
• Basic Principles for the Treatment of Prisoners, 1990
• United Nations Guidelines for the Prevention of Juvenile Delinquency(the “Riyadh
Guidelines”), 1990
• United Nations Standard Minimum Rules for Non-Custodial Measures(the “Tokyo
Rules”), 1990
• United Nations Rules for the Protection of Juveniles Deprived of their Liberty,1990
• United Nations Rules for the Treatment of Women Prisoners and Non-
custodialMeasures for Women Offenders (the Bangkok Rules), 2010
• United Nations Principles and Guidelines on Access to Legal Aid in CriminalJustice
Systems, 2012
Human rights and privatization of prisons
Private-sector involvement in prison operations – construction of
penitentiaries,transport of prisoners, procurement of supplies and even the total
managementof detention centres – has been steadily increasing since the 1980s, when it
wasreintroduced in the United States of America (where it had been abandoned half acentury
earlier). At least 11 countries have privatized detention facilities to some extent.

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Prison privatization reduces the State’s capacity to ensure respect for prisoners’
rightsand limits the ability of detainees to hold prison authorities and the State accountablefor
violations of their human rights. The fact that corporate detention providers aremotivated by
profit often leads to substandard conditions of detention and increasesthe risk of violence and
abuse against both detainees and staff.
The Human Rights Committee has expressed concern over prison privatization. Ina
communication against Australia, it held that “the contracting out to the privatecommercial
sector of core State activities, which involve the use of force andthe detention of persons
does not absolve a State Party of its obligations under the Covenant”. In its
concludingobservations on the State report by New Zealand in 2010, the Committee
statedthat “While noting the steps taken by the State Party to address the risk of humanrights
violations in relation with the Corrections (Contract Management of Prisons)Amendment Bill
2009, the Committee reiterates its concern at the privatizationof prison management. It
remains concerned as to whether such privatization inan area where the State Party is
responsible for the protection of human rights ofpersons deprived of their liberty effectively
meets the obligations of the State Partyunder the Covenant and its accountability for any
violations, irrespective of thesafeguards in place.
Article 5 of the European Convention for the Protection ofHuman Rights
and Fundamental Freedoms: permissible grounds for arrestand detention
• Imprisonment of a person after conviction for a criminal offence
• Police custody and pre-trial detention of a criminal suspect in order to preventflight,
interference with evidence or recurrence
• Detention in a civil context to ensure that a witness appears in court orundergoes a
paternity test
• Detention of aliens in connection with immigration, asylum, expulsion
andextradition
• Detention of minors for the purpose of educational supervision
• Detention of persons with mental disabilities in a psychiatric hospital

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• Quarantine of sick persons in order to contain infectious diseases

• Detention of alcoholics, drug addicts and vagrants
When is arrest or detention lawful?
An individual may be deprived of his or her liberty only on legal grounds and under
aprocedure established by law. The procedure must conform not only to domestic lawbut also
to international standards. The relevant domestic law must not be arbitrary,i.e. it must not be
tainted by inappropriateness, injustice or unpredictability. Moreover,law enforcement in any
given case must not be arbitrary or discriminatory, but shouldbe proportionate to all of the
circumstances surrounding the case. “Aside from judicially imposed sentences for a fixed
period of time, the decision tokeep a person in any form of detention is arbitrary if it is not
subject to periodic reevaluationof the justification for continuing the detention.”
Human Rights Committee jurisprudence on pre-trial detention
According to the Human Rights Committee, pre-trial detention must be
lawful,necessary and reasonable under given circumstances. The Human RightsCommittee
has recognized that the ICCPR allows authorities to hold a personin custody as an
exceptional measure, if necessary to ensure that person’sappearance in court, but has
interpreted the “necessity” requirement narrowly:suspicion that a person has committed a
crime does not by itself justifydetention pending investigation and indictment (see A.W.
Mukong v. Cameroon,communication No. 458/1991). The Human Rights Committee has
also held,however, that custody may be necessary to prevent flight, avert interference
withwitnesses and other evidence or prevent the commission of further offences.
Typical examples of permissible grounds for arrest and detention are to be found
inArticle 5 of ECHR, which is understood to provide an exhaustive list of cases of
lawfuldeprivation of liberty in Europe and can serve as a basis for interpretingthe term
“arbitrary deprivation of liberty” in Article 9 of the ICCPR. Any imprisonmenton mere
grounds of inability to fulfil a contractual obligation, such as reimbursinga debt, is explicitly
prohibited by Article 11 of the ICCPR, Article 7 (7) of ACHR andArticle 1 of the Fourth
Additional Protocol to the ECHR.

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What rights does a person have when in custody?

• Arrested persons have the right to be informed promptly of the reasons for
theirarrest and detention and of their right to counsel. They must be promptly informed ofany
charges brought against them in order to be able to challenge the lawfulness oftheir arrest or
detention and, if indicted, to prepare their defence (ICCPR, Article 9 (4)).
• Persons facing a possible criminal charge have the right to be assisted by a lawyer
oftheir choice. If they cannot afford a lawyer, they should be provided with a qualifiedand
effective counsel. Adequate time and facilities should be made available forcommunication
with their counsel. Access to counsel should be immediate (ICCPR,Article 14 (3) (d)).
• Persons in custody have the right to communicate with the outside world and,
inparticular, to have prompt access to their family, lawyer, physician, a judicial officialand, if
the detainee is a foreign national, consular staff or a competent internationalorganization.
Communication with third parties is an essential safeguard againstsuch human rights
violations as secret and incommunicado detention, enforceddisappearances, torture and ill-
treatment and is vital to obtaining a fair trial (UnitedNations Body of Principles for the
Protection of All Persons under Any Form ofDetention, Article 16).
• Persons arrested on suspicion of a criminal offence have the right to be
broughtpromptly before a judge or other judicial officer, who must (a) assess whether
thereare sufficient legal grounds for the arrest, (b) assess whether detention before trial
isnecessary, (c) safeguard the well-being of the detainee and (d) prevent violations ofthe
detainee’s fundamental rights (ICCPR, Article 9).
• Persons in pre-trial detention have the right to be tried within a reasonable time or
elsebe released. In accordance with the presumption of innocence, people awaiting trial
oncriminal charges should not be held in custody, as a general rule (ICCPR, Article 9 (3)).
• Persons deprived of their liberty on whatever grounds have the right to
habeascorpus, i.e. they may challenge the lawfulness of their detention before a courtand
have their detention regularly reviewed. The court must decide without delay,normally
within a few days or weeks, on the lawfulness of the detention and orderimmediate release if

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the detention is unlawful. If detention for an unspecified periodof time is ordered (for
instance, in a psychiatric hospital), the detainee has a right toperiodic review, normally every
few months (ICCPR, Article 9 (4)).
• Any victim of unlawfularrest or detention has an enforceable right to
compensation(ICCPR, Article 9 (5)).
PRISONERS AND THE HUMAN RIGHTS
The Supreme Court of India in the recent past has been very vigilant against
encroachments upon the Human Rights of the prisoners. In this area an attempt is made to
explain the some of the provisions of the rights of prisoners under the International and
National arenas and also as interpreted by the Supreme Court of India by invoking the
Fundamental Rights. Article 21 of the Constitution of India provides that “No person shall be
deprived of his life and Personal Liberty except according to procedure established by law”.
The rights to life and Personal Liberty are the back bone of the Human Rights in India.
Through its positive approach and Activism, the Indian judiciary has served as an institution
for providing effective remedy against the violations of Human Rights.
By giving a liberal and comprehensive meaning to “life and personal liberty,” the
courts have formulated and have established plethora of rights. The court gave a very narrow
and concrete meaning to the Fundamental Rights enshrined in Article 21. In A.K.Gopalan‟s
Case, the court had taken the view that each Article dealt with separate rights and there was
no relation with each other i.e. they were mutually exclusive. But this view has been held to
be wrong in Maneka Gandhi case and held that they are not mutually exclusive but form a
single scheme in the Constitution, that they are all parts of an integrated scheme in the
Constitution. In the instant case, the court stated that “the ambit of Personal Liberty by
Article 21 of the Constitution is wide and comprehensive. It embraces both substantive rights
to Personal Liberty and the procedure prescribed for their deprivation” and also opined that
the procedures prescribed by law must be fair, just and reasonable.
In the following cases namely Maneka Gandhi22, Sunil Batra, M.H.Hoskotand
Hussainara Khatoon, the Supreme Court has taken the view that the provisions of part III should

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be given widest possible interpretation. Every activity which facilitates the exercise of the named
Fundamental Right may be considered integrated part of the Article 21 of the Constitution. It has
been held that right to legal aid, speedy trail, right to have interview with friend, relative and
lawyer, protection to prisoners in jail from degrading, inhuman, and barbarous treatment, right to
travel abroad, right live with human dignity, right to livelihood, etc. though specifically not
mentioned are Fundamental Rights under Article 21 of the Constitution. One of the most
powerful dimensions that arose through Public Interest Litigation is the Human Rights of the
prisoners.
The Supreme Court of India has considerably widened the scope of Article 21 and has
held that its protection will be available for safeguarding the fundamental rights of the prisoners
and for effecting prison reforms. The Supreme Court by its progressive interpretation made
Article 21, which guarantees the Right to Life and personal liberty, the reservoir of prisoner‟s
rights. Under the seventh schedule of the Constitution of the India, the prison administration,
police and law and order are to be administered by the respective states. The states have generally
given low priority to prison administration. In fact, some of the decisions of the Supreme Court
on prison administration have served as eye–openers for the administrators and directed the states
to modernize prison administration.
The Human Rights saviour Supreme Court has protected the prisoners from all types of
torture. Judiciary has taken a lead to widen the ambit of Right to Life and personal liberty. The
host of decisions of the Supreme Court on Article 21 of the Constitution after Maneka Gandhis
case, through Public Interest Litigation have unfolded the true nature and scope of Article 21. In
this thesis, an attempt is made to analyse the new dimensions given by the Supreme Court to
Article 21 through Public Interest Litigation to safeguard the fundamental freedom of the
individuals who are indigent, illiterate and ignorant. Public Interest Litigation became a focal
point to setthe judicial process in motion for the protection of the residuary rights of the
prisoners.
Judicial conscience recognized that Human Rights of the prisoners because of its
reformist approach and belief that convicts are also human beings and that the purpose of
imprisonment is to reform them rather than to make them hardened criminals. Regarding the
treatment of prisoners, Article 5 of the Universal Declaration of Human Rights, 1948 says “No
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one shall be subjected to torture or cruel treatment, in human or degrading treatment or

punishment”. While Article 6 of the Universal Declaration of Human Rights, 1948 contemplates
that “everyone has the right to recognition everywhere as a person before law”. Article 10(1) of
the International Covenant on Civil and Political Rights lay down that “All persons deprived of
their liberty shall be treated with humanity and with respect for the inherent dignity of the human
person”.
The Supreme Court of India has developed Human Rights jurisprudence for the
preservation and protection of prisoners Right to Human Dignity. The concern of the Apex
judiciary is evident from the various cardinal judicial decisions. The decisions of the Supreme
Court in Sunil Batra were a watershed in the development of prison jurisprudence in India.

RIGHTS AGAINST SOLITARY CONFINEMENT AND BAR FETTERS

The courts have strong view against solitary confinement and held that imposition of
solitary confinement is highly degrading and dehumanizing effect on the prisoners. The courts
have taken the view that it could be imposed only in exceptional cases where the convict was of
such a dangerous character that he must be segregated from the other prisoners. The Supreme
Court in Sunil Batra considered the validity of solitary confinement. The Constitutional validity
of solitary confinement prescribed under section 30(2) of the Prisons Act, 1894 was considered.
Section 30(2) of the Act provides the solitary confinement when prisoner is under sentence of
death, while section 56 of the said Act permits the use of bar fetters for the safe custody of the
prisoners.
The Supreme Court while approving section 30(2) of the Prisons Act, 1894 declared
that the imposition of solitary confinement on Sunil Batra was illegal on the ground under
sentence of death refers to a finally executable death sentence, which means that the sentence
of death has become final and conclusive, and cannot be annulled by any judicial or
Constitutional authority. Sunil Batra was not considered as a prisoner under sentence of
death, since his appeal against the death penalty was pending before the Supreme Court and
in the event of its dismissal, he retained the right to appeal for presidential clemency. The
court held that Batra was put in statutory confinement and not solitary confinement.

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The Supreme Court has also reacted strongly against putting bar fetters to the
prisoners. The court observed that continuously keeping a prisoner in fetters day and night
reduced the prisoner from human being to an animal and such treatment was so cruel and
unusual that the use of bar fetters was against the spirit of the Constitution of India.
On the question of the validity of the use of bar fetters, the court in Sunil Batra (I)
observed that subjecting a prisoner to bar fetters for an unusually long period, without due
regard to the safety of the prisoner and the security of the prisoner would violate basic
Human Dignity and is hence impermissible under the Constitution of India. The court while
approving section 56 of the Prisons Act and declared that bar fetters can be used subject to
the following procedural safeguards:
a. It must be absolutely necessary to use fetters;

b. The reasons for doing so must be recorded;

c. The basic condition of dangerousness must be well–grounded;

d. Principles of natural justice must be observed;

e. The fetters must be removed at the earliest opportunity;

f. There must a daily review of the absolute need for bar fetters;

g. Continuance of bar fetters beyond a day is subject to the direction of a District

Magistrate or session’s judge.
The Supreme Court in Sunil Batra diluted the rigour of solitary confinement and bar
fetters to a considerable extent by specifying the procedural norms to be followed when
resorting to sections 30 (2) and 56 of the Prisons Act, 1894.

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RIGHTS AGAINST HAND CUFFING

In Prem Shanker vs. Delhi Administration28 the Supreme Court added yet another
projectile in its armoury to be used against the war for prison reform and prisoners rights. In
the instant case the question raised was whether hand–cuffing is constitutionally valid or not?
The Supreme Court discussed in depth the hand cuffing jurisprudence. It is the case placed
before the court by way of Public Interest Litigation urging the court to pronounce upon the
Constitution validity of the “hand cuffing culture” in the light of Article 21 of the
Constitution. In the instant case, the court banned the routine hand cuffing of a prisoners as a
Constitutional mandate and declared the distinction between classes of prisoner as obsolete.
The court also opined that “hand cuffing is prima-facie inhuman and, therefore,
unreasonable, is over harsh and at the first flush, arbitrary. Absent fair procedure and
objective monitoring to inflict “irons” is to resort to Zoological strategies repugnant to
Article 21 of the Constitution”.
While deciding the Constitutional validity of hand cuffing, the Supreme Court
specifically referred to Article 5 of the Universal Declaration of Human Rights, 194830 and
Article 10 of the International Covenant on Civil and Political Rights and held that hand
cuffing is impermissible torture and is violate of Article 21. In the instant case justice
Krishna Iyer rightly emphasized hand cuffs should not be used in routine and they were to be
used in extreme circumstances only, when the prisoner isa security risk, desperate, rowdy or
involved in non–bailable offences. But in even such circumstances, the escorting authority
must record the reasons for doing so. Otherwise, the court pointed out, under Article 21 of
the Constitution the procedure will be unfair and bad in law.
In spite of such clear ruling of the Supreme Court against hand cuffing, the high
handedness of the police personnel came to the light in Delhi Judicial Service Association
case, wherein the Supreme Court held that an extraordinary and the unusual behaviour of
police was not proper and the court laid down detailed guidelines which should be followed
in case of arrest and detention of judicial officer. The Supreme Court took a serious note of

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whole incident and it amounts to interference with the administration of justice, lowering of
its judicial authority and it amounts to criminal contempt.
It is submitted that wherever any police official acts contrary to the clear directions
against hand cuffing as laid down by the Supreme Court and thus violates the basic Human
Right to human dignity, he should be made personally liable to pay the compensation and
this fact is clearly established in state of Maharashtra vs. Ravikanth S.Patil Apart from the
above the Supreme Court had delivered many cases against hand cuffing and ruled that it is
violative of Article 21 of the Constitution. In Citizen for Democracy vs. State of Assam, the
Supreme Court said that it lays down as a rule that hand cuffs or other fetters shall not be
forced on prisoner, convicted or under trail, while lodged in a jail anywhere in the country or
while transporting or in transit from jail to another or from jail to court and back. The police
and jail authorities, on their own, shall have no authority to direct transport from one jail to
another or from jail to court and back”. The court declared that if it is absolutely necessary
for the jail or police authorities to hand cuff, permission of Magistrate is to be obtained. The
Magistrate may grant the permission to hand cuff the prisoner in rare cases. Violation of the
directions given by the Supreme Court by the authorities shall be punishable under the
contempt of court Act, 1971.
The Supreme Court directed the Union of India to frame rules or guidelines regarding
the circumstances in which hand cuffing of the accused should be resorted to, in conformity
with the judgment of the court in Prem Shankar case; and to circulate them among all the
Government of the states and Union Territories for strict observance. It is important to
mention that so as to put an end to hand–cuffing it is suggested that the parliament may make
a suitable amendment to the Indian Penal Code, 1860 and the Code of Criminal Procedure,
1973 where in, hand–cuffing should be made a cognizable offence so as to give effect to the
ruling of the Apex Court of the land and also to preserve the right to live with Human
Dignity, which is a important facet of personal liability of the individuals.
RIGHTS AGAINST INHUMAN TREATMENT OF PRISONERS

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Human Rights are part and parcel of Human Dignity. The Supreme Court of India in
various cases has taken a serious note of the inhuman treatment on prisoners and has issued
appropriate directions to prison and police authorities for safeguarding the rights of the
prisoners and persons in police lock–up. The Supreme Court read the right against torture
into Articles 14 and 19 of the Constitution. The court observed that “the treatment of a
human being which offends human dignity, imposes avoidable torture and reduces the man to
the level of a beast would certainly be arbitrary and can be questioned under Article 14”. In
the Raghubir Singh v. State of Bihar, the Supreme Court expressed its anguish over police
torture by upholding the life sentence awarded to a police officer responsible for the death of
a suspect due to torture in a police lock – up.
In Kishore Singh VS. State of Rajasthan the Supreme Court held that the use of third
degree method by police is violative of Article 21. The court also directed the Government to
take necessary steps to educate the police so as to inculcate a respect for the human person.
In the instant case the Supreme Court brought home the deep concern for Human Rights by
observing against police cruelty in the following words: “Nothing is more cowardly and
unconscionable than a person in police custody beingbeaten up and nothing inflicts a deeper
wound on our Constitutional culture that a state official running berserk regardless of Human
Rights.”
It is pertinent to mention that the custodial death is perhaps one of the worst crimes in
civilized society governed by the rule of law. The court promptly ruled that the inhuman
treatment meted to the accused in police custody is the gross and blatant violation of Human
Rights. In the absence of any legislative or executive guidelines the court has undertaken an
activist role and ruled in plethora of cases and one such case is D.K.Basu vs. State of West
Bengal.
The decision of the Supreme Court in the case of D.K. Basu is note worthy. While
dealing the case, the court specifically concentrated on the problem of custodial torture and
issued a number of directions to eradicate this evil, for better protection and promotion of
Human Rights. In the instant case the Supreme Court defined torture and analyzed its

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implications. The observations of the court on torture are valuable and worth quoting at
length. With a view to curbing this menace, the Supreme Court laid down detailed guidelines
as preventive measures as follows.
a. The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle interrogation of the
arrestee must be recorded in a register.

b. That the police officer carrying out the arrest of the arrestee shall prepare a memo
of arrest at the time of arrest and such memo shall be attested by at least one witness, who
may either be a member of the family of arrestee or a respectable person of the locality from
where the arrest is made. It shall also be countersigned by the arrestee and shall contain the
time and date of arrest.

c. A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock – up shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being informed as
soon as practicable that he has been arrested and is being detained at the particular place
unless the attesting witness of the memo of arrest is himself such a friend or relative of the
arrestee.
d. The time, place of arrest and venue of custody of an arrestee must be notified by
the police where the next friend or relative of the arrestee lives outside the district or town
through legal aid organizations in the district and the police station of the area concerned
telegraphically within a period of 8 to 12 hours after the arrest.

e. The person arrested must be aware of this right to have someone informed of his
arrest or detention as soon as he is put under arrest or is detained.

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f. An entry must be made in the diary at the place of detention regarding the arrest of
the person which shall also disclose the name of the next friend of the person who has been
informed of the arrest and the names and particulars of the police officials in whose custody
the arrestee is.

g. The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any present on his/her body, must be recorded at that
time. “Inspection Memo” must be signed both by the arrestee and the police officer affecting
the arrest and its copy provided to the arrestee.

h. The arrestee should be subjected to medical examination by a trained doctor every

48 hours during his detention in custody by a doctor on the panel of approved doctors
appointed by Director, Health Services of the State or Union Territory concerned. Director,
Health Services should prepare such a panel for all tehsils and districts as well.

i. Copies of all the documents including the memo of arrest, referred to above should
be sent to the area Magistrate for his/her record.

j. The arrestee may be permitted to meet his lawyer during interrogation though not
throughout the interrogation.

k. A police control room should be provided at all district and state head quarters,
where information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest within 12 hours of effecting the arrest and at
the police control room it should be displayed on a conspicuous notice board.
In the instant case, the Apex Court made it clear that, custodial violence, including
torture and death in the police lock–up, strikes a blow at the rule of law, which demands that
the powers of the executive should not only be deprived from the law but also that the same
should be limited by the law. The court also made it clear that failure to comply with
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guidelines should, apart from rendering the official concerned liable for departmental action
and also render him liable to contempt of court40. The Supreme Court has made it clear
beyond doubt that any form of torture of cruel, inhuman or degrading treatment is offensive
to Human Dignity and is violative of Article 21 of the Constitution.

RIGHTS TO ADMINISTRATIVE “DUE PROCESS”:

for example, rights of access to officials responsible, for designing or
administeringdevelopment activities; rights of access'to information, and to a fair hearing to
determinethe grievances of people who claim to be threatened or harmed by development
projects;rights to redress and the imposition of accountability on development actors who
disregardthe rights of development-affected peoples.
RIGHTS TO A RULE OF LAW WHICH ENABLES PROTECTION OF
ALL OF ABOVE RIGHTS
A system of rules, procedures and institutions (including courts) which enablepeople
to secure enforcement of all of the above rights. The UN Commissioner for HumanRights
assists in investigation of human rights complaints and situations. The High
Commissionerhas since 1994 maintained a 24 -hour facsimile (fax) “hotline” for reporting
humanrights violations. This is accessible to victims of human rights violations, their
relativesand NGOs. The treaty-based implementation mechanisms are legally separate
fromthe United Nations, although they also report to the United Nations on their activities
andthese reports may form the basis of further discussions at the United Nations. Also, the
UNCentre for Human Rights and other administrative departments of the United Nations
offertechnical and other assistance to these treaty-based bodies.
The principal treaty based monitoring bodies in operation are:
1. The Committee on Economic, Social and Cultural Rights of the ECOSOC (a
WorkingGroup which previously performed this function was converted and rechristened
thusin 1985, under the International Convention on Economic, Social and Cultural Rights
1966).
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2. The Human Rights Committee under the International Covenant on Civil and
PoliticalRights 1966.
3. The Committee on the Elimination of Racial Discrimination, under the
InternationalConvention on the Elimination of Racial Discrimination 1965.
4. The Committee on the Elimination of Discrimination against Women, under the
Conventionon the Elimination of All Forms of Discrimination against Women 1979.
5. The Committee against Torture, under the Convention against Torture and Other
Cruel,Inhuman and Degrading Treatment or Punishment 1984.
6. The Group of Three under the International Convention on the Suppression and
Punishmentof the Crime of Apartheid 1973.
7. The Committee on the Rights of the Child, under the Convention on the Rights of
theChild 1989.The general pattern of structure and functioning of these bodies is as follows:
State parties to a treaty have a duty to submit periodic reports of information on thestatus of
implementation of the treaty based human rights to the monitoring body. The bodythen
examines them, and comments on them by other states and NGOs. It may on its ownalso ask
for special reports and information. It gives the state concerned an opportunity tomake its
comments on others’ comments and also on the comments of the monitoringbodies itself.
Finally, it makes its own report and recommendations to the state, and to therelevant bodies
of the United Nations.The NGOs play on important role in making the UN activities in the
field of humanrights effective. They assist the UN bodies and the treaty based bodies by
highlightinghuman rights situations or patterns of human rights violations in states. They also
produceevidence and information before these bodies which use them in performing their
functions.However it has been noticed that, states have faired every badly in carrying out
theirobligation to submit reports. They conceal much more than they reveal. Unfortunately,
ithas also been observed that, in view of the international politics of human rights,
nothingmuch can be expected of the international organisations. The effective
implementation ofhuman rights remains under the exclusive control of states.64

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COOPERATION WITH THE OFFICE OF THE HIGH

COMMISSIONER FOR HUMAN RIGHTS
Cooperation with the Office of the High Commissioner for Human Rights (OHCHR)
ismost important for UNDP human rights-related support. A Memorandum of
Understandingregarding such cooperation is being finalized. UNDP's role will be to support
OHCHR,which has an expressly designated mandate and leading role in human rights.
Partnerships
UNDP will continue to build partnerships and ensure the full involvement of
majorstakeholders. These partnerships will help consensus building, coordination sharing
ofexpertise, and best practices, and policy dialogue, thereby ensuring the sustainability
ofUNDP’s human rights-related support. UNDP’s major partners will include: UN and
multilateralagencies that are involved in human rights (i.e. ILO, UNESCO, UNICEF, WHO,
UNAIDS, UNV, ERD, etc.); other donors (World Bank, the Regional Development Banks,
CIDA, SIDA, USAID, ODA, DANIDA, DAC/OECD, IDB, etc.); and national and
international human rights-related NGOs.
FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
The right to freedom of thought, conscience and religion may not be subject
toderogation, even during a state of emergency. What is known as the forum internum,i.e. the
right to form one’s own thoughts, opinions, conscience, convictions andbeliefs, is an absolute
right protected against any form of State interference, such asindoctrination
(“brainwashing”). However, the public manifestation of religion or beliefmay be restricted on
legitimate grounds.
The terms “religion” and “belief” should be interpreted broadly, to include
traditionalas well as non-traditional beliefs and religions. The freedom to have or to adopta
religion or belief includes the freedom to choose another belief or religion, whichmay entail
replacing a previously held religion or belief with another, or to adoptatheist views, or to
retain one’s religion or belief.
Limitations on the manifestation of one’s religion or belief
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Limitations on the freedom to manifest one’s religion or beliefs are subject to

strictlyspecified conditions, and are allowed only if they are:
• prescribed by law;
• necessary for protecting public safety, order, health or morals or the
fundamentalrights and freedoms of others.
One example of permissible grounds for a limitation of the freedom to manifestone’s
religion or belief is when such manifestations amount to propaganda for waror advocacy of
national, racial or religious hatred that constitutes incitement todiscrimination, hostility or
violence.
Religious and moral education
Article 18 (4) of the ICCPR requires States to respect the freedom of parents andlegal
guardians to bring up their children in accordance with their own religious andmoral
convictions.
Compulsory religious or moral education in public schools is not incompatible with
thatprovision, if religion is taught in an objective and pluralistic manner (for instance, aspart
of a course on the general history of religion and ethics). If one religion is taughtin a public
school, provisions should be made for non-discriminatory exemptions oralternatives,
accommodating the wishes of all parents or legal guardians.
FREEDOM OF OPINION AND EXPRESSION
Two main elements can be distinguished in the above provisions:
• freedom of opinion;
• freedom of expression.
Freedom of opinion
The right to hold opinions is by nature passive and forms an absolute freedom:
theICCPR allows for no exceptions to or restrictions on its enjoyment. The right to
expressopinions, on the other hand, is not absolute. As we shall see, freedom of
expressioncan and even must be restricted under some circumstances.
Freedom of expression
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Freedom of expression, along with freedom of assembly and association, is

acornerstone of democratic society. Democracy cannot be realized without a freeflow of
ideas and information, and the possibility for people to gather, to voice anddiscuss ideas,
criticize and make demands, defend their interests and rights and setup organizations for
those purposes, such as trade unions and political parties. TheUnited Nations Special
Rapporteur on freedom of expression has described that rightas “an essential test right, the
enjoyment of which illustrates the degree of enjoymentof all human rights enshrined in the
International Bill of Human Rights, and thatrespect for this right reflects a country’s
standards of fair play, justice and integrity.”
All international and regional human rights monitoring bodies have underlined
theparamount importance of freedom of expression for democracy. The Human
RightsCommittee in general comment No. 34 (2011) stated that the rights to freedom
ofopinion and expression “constitute the foundation stone for every free and
democraticsociety”. The Inter-American Commission on Human Rights approved the Inter-
American Declaration of Principles on Freedom of Expression in 2000. The
AfricanCommission on Human and Peoples’ Rights adopted a Declaration of Principles
onFreedom of Expression in Africa in 2002. The Parliamentary Assembly of the Councilof
Europe has adopted a number of instruments related to various aspects of the rightto freedom
of expression, including Recommendation 1506 (2001), on Freedom ofExpression and
Information in the media in Europe, and Resolution 1510 (2006), onFreedom of Expression
and respect for religious beliefs.
Freedom of expression comprises not only the right of individuals to express their
ownthoughts, but also the right to seek, receive and impart information and ideas of allkinds.
It therefore has an individual and a group dimension: it is a right that belongsto individuals,
and also implies the collective right to receive information and to haveaccess to the thoughts
expressed by others.
FREEDOM OF PEACEFUL ASSEMBLY AND ASSOCIATION

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Freedom of peaceful assembly and of association are, together with freedom

ofexpression, key rights in a democratic society, since they enable the people toparticipate in
the democratic process.
Freedom of assembly
Scope
Protecting freedom of assembly means guaranteeing the right to hold meetings
topublicly discuss or disseminate information or ideas – but only if they are “peaceful”,a
term that must be interpreted broadly. For instance, States Parties must preventa peaceful
assembly from leading to a riot as a result of provocation or the useof force by security forces
or private parties, such as counter-demonstrators oragents provocateurs.States are under an
obligation to take positive measures to guarantee this right andprotect it against interference
by State agencies and private parties alike. To that end,authorities must take measures to
ensure the smooth functioning of gatherings anddemonstrations. Accordingly, they should be
informed of the location and time of aplanned assembly with sufficient advance notice, and
should be granted access to it.
Limitations
The right to assemble peacefully is subject to restrictions, which must be:
• in conformity with the law: interference with freedom of assembly can
beundertaken independently by administrative authorities, particularly the police, onthe basis
of a general statutory authorization;
• necessary in a democratic society: they must be proportional and compatible withthe
basic democratic values of pluralism, tolerance, broad-mindedness and popularsovereignty;
• aimed at a legitimate purpose, such as national security, public safety, publicorder,
public health and morals and the rights and freedoms of others (for instance,an assembly may
be broken up if it constitutes a specific threat to persons orpassers-by).
Freedom of association
Scope

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Protecting freedom of association means guaranteeing the right of anyone to foundan

association with like-minded persons or to join an existing association. Thus, astrict one-
party system that precludes the formation and activities of other politicalparties violates
freedom of association. The formation of and membership in anassociation must be
voluntary; nobody may be forced – directly or indirectly – by theState or by private parties to
join a political party, a religious society, a commercialundertaking or a sports club. States are
under an obligation to provide the legalframework for setting up associations and to protect
this right against interferenceby private parties.
Freedom of association includes the right to form and join trade unions to
protectone’s interests. Trade union rights are laid down more specifically in Article 8of
ICESCR.
DECLARATION ON CRITERIA FOR FREE AND FAIR ELECTIONS
(1994)
The authority of parliament derives largely from its capacity to reflect faithfullythe
diversity of all components of society, and this in turn depends on theway elections are
organized. IPU has therefore put considerable effort intothe formulation of election criteria.
An important outcome of that work is theDeclaration on Criteria for Free and Fair Elections,
which was adopted in 1994.
It is mainly based on a study of the international law on democratic rights andState
practice in respect of elections, covering the entire electoral process, fromelectoral laws to
balloting, monitoring the poll, counting ballots, proclaiming theresults, examining complaints
and resolving disputes.
The right to vote and be elected
The right to vote and be elected is crucial for parliament as a democratic institution,
formembers of parliament, and for democracy as a whole. Its proper implementation
andrealization has a direct impact on the way voters perceive their elected representatives,on
the legitimacy of the legislation that parliament enacts and on the decisions ittakes. It is
therefore directly related to the essence of parliament and the idea ofpopular rule through
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representatives. Any breach of this right has direct consequencesfor parliament’s legitimacy,
and even – in the most serious cases – for law and orderand stability in a country. Moreover,
parliamentarians are guardians of the right to voteand stand for election.
Elections must be organized so that the will of the people is freely and
effectivelyexpressed and the electorate is offered an actual choice. It is also essential to
ensurenon-discriminatory access of candidates and competing political parties to the media

The right to vote

Persons entitled to vote should be able to register, and any manipulation of
registrationand the voting itself, such as intimidation or coercion, should be prohibited by
law.
The elections should be based on the principle of “one person, one vote”. The
drawingof electoral boundaries and the methods of vote allocation should not distort
thedistribution of voters or discriminate against any social groups.
Positive measures should be taken to remove obstacles to participation, suchas
illiteracy, language barriers (information should be made available in minoritylanguages),
poverty, non-accessibility for persons with disabilities and obstacles tofreedom of movement.
Citizens should be protected from coercion or from attempts to compel them to
revealtheir voting intentions or preferences, and the principle of the secret ballot mustbe
upheld.
The right to be elected
The right to stand for election may be subject to restrictions, such as those basedon
minimum age or citizenship, but these must be justifiable and reasonable.Physical disability,
illiteracy, educational background, party membership or propertyrequirements should never
apply as restrictive conditions.

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Furthermore, conditions relating to nomination dates, fees or deposits should

bereasonable and non-discriminatory (Human Rights Committee, general commentNo. 25
(1996), paragraph 16).
Voting procedures
Free, fair and periodic elections should be guaranteed by national law. Voters should
befree to support or oppose the government and form opinions independently. Electionsmust
be held by secret ballot, ensuring that the will of the electors is expressed freely.One such
crucial measure is the establishment of an independent authority tosupervise the electoral
process. It is important to ensure the security of ballotboxes during voting. After the voting,
ballots should be counted in the presence of(international) observers, candidates or their
agents.
“No matter who you are, or where you live, underinternational law, your voice
counts. Governmentsshould ensure that this is not a dream. It should be
a reality.”

FREEDOM OF MOVEMENT
The Universal Declaration of Human Rights and the ICCPR protect the right of
everyperson residing lawfully in a country to move freely and to choose a place of
residenceanywhere within the territory of that country. This right should be protected from
bothpublic and private interference.
Freedom of movement of non-nationals within a State
Given that the right of freedom of movement applies to persons who are lawfully
inthe territory of a State, governments may impose restrictions on the entry of
nonnationals.Whether a non-national is “lawfully” in the territory of a State should
bedetermined according to domestic law, which may specify entry restrictions, providedthat
they meet the State’s international obligations.
Non-nationals who enter a country illegally but whose status is
subsequentlyregularized must be considered to be in the territory lawfully. If a person is
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lawfullyin a country, any restriction imposed on that person or any treatment of that person
other than the treatment reserved to nationals must be justified under Article 12 (3) ofthe
ICCPR.
An example of restrictions imposed on a non-national is provided in the case of
Celepliv. Sweden before the Human Rights Committee (1994). Mr Celepli, a Turkish
citizenof Kurdish origin living in Sweden, was ordered to leave the country on grounds
ofsuspected involvement in terrorist activities. That order was not enforced, as theSwedish
authorities believed Mr Celepli was at risk of persecution in Turkey; he wasallowed to stay
on provided that he reside in a particular municipality and reportregularly to the police. The
Human Rights Committee found that these restrictions onfreedom of movement did not
violate Article 12 (3) of the ICCPR.

Freedom to leave a country

Article 12 (2) of the ICCPR stipulates that all persons (citizens and non-nationals,and
even persons residing in a country illegally) are free to leave the territory of aState. This right
applies to short and long visits abroad and to (permanent or semipermanent)emigration.
Enjoyment of this right should not depend on the purpose orduration of travel abroad.
This right imposes obligations on both the State of residence and the State
ofnationality. For instance, the State of nationality must issue travel documents orpassports to
all citizens both within and outside the national territory. If a State refusesto issue a passport
or requires its citizens to obtain exit visas in order to leave, thereis interference in their right
to freedom of movement, which is difficult to justify.
Moreover, in its general comment No. 27 (1999) on freedom of movement, the
HumanRights Committee stated the following: “In examining State reports, the
Committeehas on several occasions found that measures preventing women from moving
freelyor from leaving the country by requiring them to have the consent or the escort of
amale person constitute a violation of Article 12.
Barriers to freedom of movement: examples
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The Human Rights Committee notes in paragraph 17 of its general commentNo. 27

(1999) that the right to freedom of movement is often subjected to thebarriers listed below,
which make travelling within or between countries difficultor impossible. Parliamentarians
may wish to oppose such measures.
Movement within the country
• Obligation to obtain a permit for internal travel
• Obligation to apply for permission to change residence
• Obligation to seek approval by the local authorities of the place of destination
• Administrative delays in processing written applications
Movement to another country
• Lack of access to the authorities or to information regarding requirements
• Requirement to apply for special forms in order to obtain the actual
applicationforms for the issuance of a passport
• Requirement to produce statements of support by employers or relatives
• Requirement to submit an exact description of the travel route
• High fees for the issuance of a passport
• Unreasonable delays in the issuance of travel documents
• Restrictions on family members travelling together
• Requirement to make a repatriation deposit or have a return ticket
• Requirement to produce an invitation from the State of destination
• Harassment of applicants
Limitations
Freedom of movement must not be restricted, except where such restrictions
areprovided for by law and where they are necessary on grounds of national security,public
order, public health or morals or the rights and freedoms of others (Article 12 (3)of ICCPR).
According to the Human Rights Committee, in paragraph 16 of its general commentNo. 27
(1999), these requirements would not be met, for instance, “if an individualwere prevented
from leaving a country merely on the grounds that he or she is theholder of ‘State secrets’, or

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if an individual were prevented from travelling internallywithout a specific permit”. On the

other hand, restrictions on access to military zoneson national security grounds or limitations
on the freedom to settle in areas inhabitedby indigenous or minority communities may,
according to the Committee, constitutepermissible restrictions.
Enacting limitations and overseeing their implementationDrawing up legislation
In adopting laws that provide for restrictions under Article 12 (3) of the
ICCPR,parliaments should always be guided by the principle that the restrictions mustnot
defeat the purpose of the right. The laws must stipulate precise criteria for therestrictions –
which should be implemented objectively – and respect the principleof proportionality; the
restrictions should be appropriate, should be the leastintrusive possible, and should be
proportionate to the interest to be protected.
Implementation
If a State decides to impose restrictions, they should be specified in a law.Restrictions
not provided for by law and not in conformity with Article 12 (3) ofthe ICCPR violate
freedom of movement. Furthermore, the restrictions must beconsistent with other rights
provided for under the ICCPR and with the principlesof equality and non-discrimination.
The right to enter one’s own country
Article 12 (4) of the ICCPR implies that one has the right to remain in one’s own
countryand to return to it after having left. The right may also entitle a person to enter a
countryfor the first time (if he or she is a national of that country but was born abroad).
Theright to return is particularly important for refugees seeking voluntary repatriation.
The wording “one’s own country” refers primarily to citizens of that country.
Inexceptional cases, persons who have resided for a very long period in a country as
nonnationalsor who were born there as second-generation immigrants may consider
theircountry of residence as their “own” country.

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UNIT IV
SOCIAL, ECONOMIC AND CULTURAL RIGHTS – INTERNATIONAL
INSTRUMENTS
THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS
The International Covenant on Economic, Social and Cultural Rights, 1966 contains
31 articles. Of these are directly related to these rights, the rest deal with how theagreement is
brought into force, and subsequently amended. The covenant is based onthe general
awareness that full realisation of the rights contained in it would require a highlevel of
economic development in states. It specifically stresses the importance of
internationaleconomic and technical cooperation for achievement of full realisation of the
rightsrecognised under the covenant.
The developing countries are allowed to determine to what extent they would
guaranteethese rights, “with due regard to human rights and their national economy".
Second,states are permitted to impose limitations of the economic, social and cultural rights,
subjectto two conditions: (1) that the limitations must be “compatible with the nature of
theserights”, and (2) that they must be imposed “solely for the purpose of promoting the
generalwelfare in a democratic society”.

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Machinery for implementation

The covenant expects ‘states parties to it to implement the rights contained in it
ingood faith. It also provides for an international mechanism for facilitating the
implementation.
The mechanism for monitoring the implementation of the covenant consists of(a)an
obligation of states to submit periodic reports to the Secretary-General of theUnited Nations,
(b) the General Assembly, (c) the Economic and Social Council and its18members
committee on Economic Social and Cultural Rights, and (d) the relevantspecialised agencies,
i.e. other international organisations dealing with the relevant aspectsof the economic, social
and cultural rights, such as health, food, education, culturaletc.
A state party to the covenant has a clear obligation to submit periodic reports to the
UNbodies. These reports should indicate the extent to which a country has been able to
implementthe various rights under the covenant and also the factors and difficulties
affectingtheir implementation. These reports are commented upon by other states and
relevantspecialised agencies. The committee may then make its recommendations, after
consideringthe reports, comments of other states and international organisations and also
thoseof the state in question. The ECOSOC also sends periodic reports to the General
Assembly, with information and general recommendations to facilitate implementation of the
covenant.
It reiterates the right “to an adequate standard of living” and “to the continuous
improvementof living conditions” (Article 11) and further elaborates what that entails
throughout the Covenant.
All of the above UN legal instruments formally link human rights with
development.Moreover, the 1986 UN Declaration on the Right to Development, in particular,
states thatdevelopment itselfis a human right, thereby enjoining, ipso facto, a human rights
dimensionto development. The Declaration of the 1993 UN World Conference on Human
Rightsfurther strengthens the Declaration on the Right to Development and proclaims that
“theright to development is an inalienable human right and an integral, part of

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fundamentalhuman freedoms”. So, too, have the UN World Conferences on Population and
Development(Cairo), on Women (Beijing) and the World Summit on Social Development
(Copenhagen).
“Human Rights are universal legal guarantees protecting individuals and groups
againstactions which interfere with fundamental freedoms and human dignity.
DIRECTIVE PRINCIPLES OF STATE POLICY ANDHUMAN RIGHTS
(Judicially non-enforceable rights)
Judicially non-enforceable rights in Part IV of the Constitutionare chief those of
economic and social character. However,Article 37 makes it clear that their judicial non-
enforceabilitydoes not weaken the duty of the State to apply them in makinglaws, since they
are nevertheless fundamental in the governanceof the county. Additionally, the innovative
jurisprudence of theSupreme Court has now read into Article 21 (the right to lifeand personal
liberty) many of these principles and made themenforceable.
The duties of the State encompass securing a social order with justice,social,
economic and political, striving to minimize and eliminateall inequalities (Article 38),
securing for "the citizens, menand women equally" the right to an adequate means of
livelihood(Article 39 (a)),distribution of ownership and control of communityresources to
sub serve the common good (Article 39(b)),prevention of concentration of wealth and means
of productionthe common detriment (Article 39(c)),securing equal pay forequal work for
both men and women (Article 39(d)), preventing abuse of labour, including child labour
(Article 39(e)),ensuring ofchild development (Article 39(f)), ensuring of equal justice andfree
legal aid (Article 39 A), organization of village democracies(Article 40),provision of the
right to work, education and publicassistance in case of unemployment, old age sickness and
disability(Article 41), provision of humane conditions of work (Article42), living wage and a
decent standard of life (Article 43), securingparticipation of workers in the management of
industries (Article 43A), provision of a uniform civil code for the wholecountry (Article 44),
provision for early child care and educationto children below the age of six years. The State
shall endeavour to provide early childhood care and education for all children untilthey

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complete the age of six years (Article 45), promotion ofeducational and economic interest of
the weaker sections of thepeople and their protection from injustice and all forms of
exploitation(Article 46), raising the standard of living, improvingthe level of nutrition and
public health and prohibition of intoxicatingdrinks and of drugs (Article 47),scientific
reorganizationof animal husbandry and agriculture (Article 48) conservationof environment,
forests and wildlife (Article 48A), protection ofmonuments and things of artistic or historical
importance (Article19),separation of judiciary from the executive (Article 50) andpromotion
of international peace and security (Article 51 ).
The table below shows that most of the economic, socialand cultural rights
proclaimed in the Universal Declaration ofHuman Rights have been incorporated in part IV
of the IndianConstitution
No. Universal Declaration of Article in the Article in the
Human Rights Universal Indian
Declaration Constitution
Right to work, to just aid favourable
1 Article 23 (1) Article 41
conditions of work
2 Right to equal pay for equal work Article 23 (2) Article 39 (d)
Articles 21 (A),
3 Right to education Article 26(1)
41,45 & 51A(k)
Right to just and favourable
4 Article 23(3) Article 43
remuneration
5 Right to rest and leisure Article 24 Article 43
Right of everyone to a
Article 39(a) &
6 standard of living adequate Article 25(1)
Article 47
for him and his family
7 Right to a proper social order Article 28 Article 38

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SIMILARITIES BETWEEN CONVENTATION ON

ECONOMIC,SOCIAL AND CULTURALRIGHTS
No Name of Right Convention on Indian
Economic Social Constitution
And Cultural
Rights
1 Equal pay for equal work Article 7a (1) Article39(d)
Provision for just and humane
2 conditions of work and maternity Article 7b Article 42
relief
Right to work, to education and
3 Article 6(1) Article 41
public assistance in certain cases
4 Opportunity for children Article 10 (3) Article 41f
5 Compulsory education for children Article 13 (2a) Article 45
Article 7(a)(11)
6 Living wage, etc, for workers Article 43
Article 7 (d)
7 Nutrition and standard of living Article 11

RIGHTS TO WORK:
Which impose obligations on development planners to promote opportunities for
productiveemployment (through local, self-help efforts as well as private and public
investment);reduce risks to people which flow, foreseeable, from policies (such as
structuraladjustments) which create unemployment; to adopt appropriate training programs to
helppeople (notably young people) become qualified for productive work in a world of
changingtechnologies and economic activities. The right to work has been stressed not only
in
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UDHR and the international covenants, but also in various other instruments including the
Convention against All Forms of Racial Discrimination 1965 and the Convention on
Discriminationagainst Women 1979. The ILO Employment Policy Convention 1964, the
1964and 1984 Recommendations on employment policy, the Discrimination (Employment
andOccupation) Convention 1958 and the Recommendation of 1958 under the
convention,alsohave a direct bearing on the right to work.
RIGHT TO CHILD EDUCATION
Right to Child Education (Article 21 A) is a new human right, whichis included in the
Constitution by the Eighty Sixth ConstitutionAmendment Act, 2002. In order to make the
right to free and compulsoryeducation to a child, the Constitution's 83 rd amendment Bill 1997
was introduced in Rajya Sabah insert a new article 21 A in the Constitution.However, the
Bill was withdrawn on November 27, 2001. The Constitution93rd Amendment Bill 2001 was
introduced and passed by unanimous votein the Lok Sabah on November 28, 2001 and the
Rajya Sabha on May14, 2002 with formal amendments as 86th Constitutional
amendment.According to Article 21(A), the State shall provide free and
compulsoryeducation to all children of the age of six to fourteen years in suchmanner as the
State may, by law, determine.Before the Constitutional process started for making the right
toeducation a fundamental right, the Supreme Court in J.P. Unnikrishnanand others v. The
State of Andhra Pradesh held that every citizen of thiscountry has the right to fret? Education
until he completes the age offourteen years.

RIGHT TO HEALTH
The Health sector has got a total outlay of INR 34,488 billion in the budget
estimatesfor 2012-13, which is 13.24% more than the budget estimates of INR 30,456
billionfor the 2011-12 fiscal. After years of stagnation, total Health Expenditure from
theCentre, as a share of total Union Budget, rose nominally to 2.31% for 2012-13 from2.15%
in 2011-12.81 Despite a number of public health care schemes for poor andrural families, and
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the extensive Indian Public Health Standards (IPHS), the country’shealth-care infrastructure
is sub-standard and inadequate, with insufficient doctors,paramedical workers and hospital
beds. There are six doctors and nine hospitalbeds per 10,000 people. With a shortage of 3.6
million beds, 1.9 million doctorsand 3.7 million nurses, the vision of achieving a doctor
population ratio of 1:1000 isstill farfetched. Only 15% of the population has health insurance,
making qualityhealth care in private hospitals inaccessible for a vast majority of the
population. Thegovernment has announced that the health insurance scheme – Rashtriya
SwasthyaBima Yojana (RSBY) – will be expanded by the end of the Twelfth Five-Year Plan
inorder to cover around 70 million families. Even this scheme has seen problemsin
implementation. In late 2012, private health facilities throughout India wereimplicated in a
massive hysterectomy removal scheme, in which doctors performedunnecessary
hysterectomies on poor women for the RSBY reimbursement.
Access to Health Services
The National Rural Health Mission (NRHM) was launched to improve availability
andaccess to quality health care for the rural poor. While it is an ambitious
centralgovernment programme, the benefits are not reaching the poorest of the poor.
Therecent announcement in the Budget 2012 to introduce a National Urban HealthMission is
a positive step towards providing health care to the urban poor in thecourse of the Twelfth
Five-Year Plan. The success of this mission would depend onadequate budgetary allocations,
a clear plan of action incorporating a human rightsapproach, and a monitoring mechanism to
ensure that targets are met.Growing privatisation of health care in India has resulted in gross
disparities inservice distribution between rich and poor, and rural and urban areas. Moreover,
anincrease in service tax from 10% to 12% will result in an additional financial burden tobe
borne by the end-recipient.88 According to a 2011 Supreme Court order, privatehospitals are
supposed to provide free treatment and hospitalisation to the poor.
The right to the highest attainable standard of health remains unfulfilled for most
ofIndia’s population, as the health care system has collapsed in several parts of thecountry.

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For example, at least children died in West Bengal between June andNovember 2011, due to
lack of basic health care facilities in state-run hospitals.
A total of 585 children died due to encephalitis in eastern Uttar Pradesh in
2011,according to official data as of November 2011.91 Since January 2012, over
500children have died as a result of poor sanitation and upkeep at GB Pant Hospital
inSrinagar, Kashmir. Ongoing public interest litigation (PIL), Dr. Rouf Mohidin Malik& Anr
v State of Jammu and Kashmir has resulted in investigations and immediatechanges at the
government hospital.
Most persons with disabilities are denied health insurance, and many of them
havebeen denied medical treatment in hospitals. Due to infrastructural barriers, lack
ofadequate human resources, lack of modern equipments and lack of communication,persons
with disabilities fail to avail appropriate medical services.
Access to Affordable Medicines
The growing neglect of primary health centres and the inability to
establish‘compulsory licensing’, particularly for essential and life saving drugs, is
disturbing.In compulsory licensing, under the World Trade Organization’s (WTO) Trade
RelatedIntellectual Property Rights Agreement (TRIPS), the government allows a
genericfirm to produce a patented product without the consent of the patent owner on
thefollowing grounds: (a) that the reasonable requirements of the public with respectto the
patented invention have not been satisfied; (b) that the patented invention isnot available to
the public at a reasonably affordable price; or (c) that the patentedinvention is not worked in
the territory of India.
The TRIPS Agreement states that compulsory licenses are a legally recognisedmeans
to overcome barriers in accessing affordable medicines. In March 2012,the Indian Patent
Office has issued the first-ever compulsory license in India to ageneric drug
manufacturer.This initiative ends pharmaceutical company Bayer’smonopoly on the drug
Sorafenib Tosylate in India, which is used to treat kidney andliver cancer. This
groundbreaking move will help improve the availability of affordablelife saving medicine by

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ensuring that a generic version produced locally is availableat a fraction of the current price
(i.e. 97% price reduction). Additionally, in October2012, the Supreme Court ordered the
government to develop a Drug Price ControlOrder (DPCO) to ensure fair prices on essential
medicines.
THE HELSINKI FINAL ACT 1975
One of the first international instruments containing a provision onself-determination
that was certainly not meant to apply to colonialsituations is the Helsinki Final Act of 1975.
It was the officialdocument containing the agreement of the parties to the Conferenceon
Security and Co-operation in Europe (CSCE), the predecessor ofthe Organization for
Security and Cooperation in Europe (OSCE) thatwas established during the Cold War. Both
sides realized that stabilityand cooperation in the region would be mutually beneficial
andtherefore some sort of agreement was necessary.361 Even though theproduct of the
Conference, the Helsinki Final Act, is not a treaty, it isa ‘politically binding agreement’. ‘By
virtue of the principle of equal rights and self-determination of peoples,all peoples always
have the right, in full freedom, to determine, when andas they wish, their internal and
external political status, without externalinterference, and to pursue as they wish their
political, economic, social andcultural development.’
The inclusion of the right of self-determination in a Declaration thatwas meant to
apply to the peoples of Europe, who were at the timenot subject to colonial domination,
definitely rebuts the assertion thatself-determination only applies in colonial situations.
Furthermore, self-determination as proclaimed in the Helsinki FinalAct is quite ‘progressive’
when compared to the pronouncements onself-determination that have been made within the
context of the United Nations. There is no doubt that the phrase ‘all peoples always havethe
right’ was intended to affirm the universal scope of selfdetermination. In addition, the phrase
‘when and as they wish’warrants the conclusion that the right of self-determination is
‘acontinuing right’.
Like any other instrument containing a reference to selfdeterminationthe Final Act
does not attempt to define the meaning ofthe term ‘peoples’ either, but the drafting history

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indicates that‘peoples’ referred to ‘the entire population of a State’. The travauxpréparatoires

also clarify that the parties at the Conference agreedthat the term peoples did not include
minorities. Instead, the FinalAct deals with minorities separately in Principle VII.
It is important to note that Principle VIII of the Helsinki Final Act‘explicitly’ refers to the
internal dimension of self-determination.According to Cassese‘[t]he debates preceding the
adoption of the Helsinki Declaration illustratethat the phrase ‘in full freedom’ reflects the
Western view that the right ofself-determination cannot be implemented if basic human
rights andfundamental freedoms, in particular the freedom of expression andassociation, are
not ensured to all members of the people concerned’.Highlighting the internal aspect of self-
determination by making theconnection between self-determination, democracy and human
rights,the Helsinki Final Act ‘breaks new ground in international relations’.
This instrument not only shows that self-determination continues tobe relevant outside the
colonial context, but also that beyonddecolonisation the emphasis has shifted from its
external to itsinternal dimension.

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UNIT V
HUMAN RIGHTS AND VULNERABLE GROUPS
INTRODUCTION

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There is a certain group of a human being which either by nature or because of deep-
rooted custom is weak and vulnerable, such as a child, women, disabled persons, aged
persons, migrant workers or persons belonging to a particular race. However, they were a
human being possesses a human right and fundamental freedom. But their rights have been
violated very frequently by the dominant section of the society.
A number of the convention has been concluded under the auspices of the United
Nation to protect their rights which are as follows:
WOMEN
Women constitute almost half of the world population. However, their enjoyment of
rights equally with that of men is far from satisfactory. In every society from ancient to
modern times, women are considered as the property of men to serve their interests in both
society and the domestic front. In order to halt such practices, the UN and the international
community have evolved a number of methods to augment the rights of women on par with
men without any kind of discrimination.
The most prominent human rights document concerning the human rights of women
is the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW). This convention became effective in September 1981, and at least 170 countries
have approved the convention. The Preamble to the Convention on the Elimination against
Women explains that, despite the existence of other instruments, women still do not have
equal rights with men; Discrimination against Women continues to exist in every society.
The Convention under Article 1 defines the term discrimination against women as
any distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by the women,
irrespective of their marital status on a basis of equality of men and women, of human right
and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
The Convention under Part III lays down a number of fields where States Parties are
required to take steps to eliminate discrimination against which includes the following: –
EDUCATION

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EMPLOYMENT
HEALTH CARE
ECONOMIC AND SOCIAL LIFE
WOMEN IN RURAL AREAS
EQUALITY BEFORE LAW
MARRIAGE AND FAMILY RELATIONS
India has ratified the Convention on the Elimination of ALL Forms of Discrimination
against Women (1979). Ratification of the Convention obliges India to honour the
obligations imposed by the Convention. In Madhu Kishwaar v. State of Bihar (AIR. 1996
p.2178), it was held that by the Supreme Court that the Convention on the Elimination of All
Forms Of Discrimination Against Women is an integral scheme of the Fundamental Rights
and the Directive Principles. Article 2(e) of CEDAW enjoins the States Parties to breathe life
into the dry bones of the Constitution International Convention and the Protection of Human
Rights Act, to prevent gender-based discrimination and to effectuate right to life including
empowerment of economic, social and cultural rights. Article2 (f) read with Articles 3,14 and
15 of CEDAW embodies the concomitant right to development as an integral scheme of the
Indian Constitution and Human Right Act.
In a traditional society like India, where many women goddess is worshipped with a
lot of devotion and respect, when it comes to equal treatment of their biological partners,
both men and society keep them in low profile. Many times they are considered as servants
of the home and are looked at as sexual objects. Their economic capacity is deprived to make
them dependent on the male-dominated society. The traditional, economic, social and
cultural disbeliefs and age-old customary practices of intimidating cruel practices that are
prevalent in many parts of the world have to be halted with a welcome sign of considering
them as partners in progress.
CHILD
The childhood is entitled to special care and assistance and child should grow up in a
family environment, in an atmosphere of happiness, love, and understanding. The

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Convention on the Rights of the child (CRC) was adopted on November 20, 1989, and 196
states are party to it CRC provided a bill of rights for children. The CRC is the first globally
binding treaty for the protection of children’s civil, political, economic, social and cultural
rights. CRC, in fact, provided a bill of rights for children. The Convention under Article 1
states that a child means every human being below the age of eighteen years unless, under
the law applicable to the child, a majority is attained earlier.
India has ratified the Convention on the Rights of the Child of 1989 which provided
under Article 28 Para (1) for compulsory primary education which shall be available free to
all. India has, therefore, an oblige action to implement the above provision of the
Convention. No doubt, more children than ever before going to schools, free primary
education to all children could not be provided due to other pressing social and economic
problems which have surpassed importance due to other pressing social and economic
problems which have surpassed importance due to a child.
Child labour in India
Child labour is conventionally defined to include all ‘economically active’ children in
the age group 5-14 years. A person is treated as economically active or gainfully employed if
she/he does work on a regular basis and receives remuneration for it. The ILO defines ‘child
labour’ as “work that deprives children of their childhood and their dignity, which hampers
their access to education and the acquisition of skills, and which is performed under
deplorable conditions harmful to their health and their development.”
The Indian constitution under article 24 provides that no child below the age of
fourteen years shall be employed in any factory or mine or engaged in any other hazardous
employment. The above provision was made in order to protect children from exploitation
and to provide them with the education so that they may develop their personality and may
live a dignified life. The framers of the Constitution were aware that the prohibition of labour
alone is not enough and therefore article 45 was inserted which provided that the state shall
endeavour age of fourteen years. Despite the above constitutional prohibition on child labour,
children are working Large number I hazardous as well as non- hazardous work.

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In India, the Employment of Children Act of 1938 was the first statutory enactment
dealing with child labour. The ACT had prohibited employment of children below 14 years
of age in the railways and other means of transport, However, the schedule appended into the
act did not specify many other which are unquestionable hazardous.
The enactment of child labour (Prohibition and Regulation) Act of 1986 is indeed the
bold step to prohibit the Child labour. Section 3 of the Act prohibited employment of
children in certain occupations and processes. Section 14 of the Act has provided for
punishment for up to one year (minimum being three months) or fine up to Rs. 20000.00
(minimum being Ten Thousand) or both to one who employs or permits any a child to work,
in contravention of a provision of Section 3.
The Act was limited in scope in the sense that children can continue to work if they
are part of family or labour. Further, children may continue to work in industries which are
not specified in Part A and Part B of the schedule appended to the Act. The Act also did not
lie as to the rehabilitation of the child once the employer is prosecuted.
In order to expand the scope, the ban on child labour in the year 2006 a notification
was issued by the Government which amended the Child Labour (Prohibited employment of
Children under the age of 14 as domestic servants or in dhabas (roadside eateries)
restaurants, hotels, tea shops, resorts, spas and recreational centres. The ban is accompanied
by provisions imposing punishment which include a jail term up to one year and fine of RS
20,000/- The above notification came into force from October 11, 2006. It is to note that, the
list of Professions that are deemed hazardous was further expanded in 2008 through a
notification issued by the Ministry of Labour and Employment which included 15 hazardous
occupations and 9 processes on the list of 57 practices prohibited under the Act.
M.C. Mehta v. State of Tamil Nadu (AIR SC 1997) wherein it was ruled in that the
offending employer must pay compensation of Rs. 20,000 for every child employed in
contravention of the provisions of the Act and the Inspectors, whose appointment is
visualized by Section 17 have to secure compliance with this provision. The said sum could
be deposited in a fund to be known as the Child Labour Rehabilitation-cum-Welfare Fund.

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It was held that an order for paying compensation is in terms of the direction of the
Supreme Court and that cannot be confused with a levy of fine by way of penalty under
Section 14 of the Act. The penal fine is different from compensation.
The prevention of child labour is a gigantic task. The only way by which it can be
prevented is to provide education to the children.It is one of the most effective instruments
for the prevention of child labour. Children are not expenses they are an investment. They
shape the future of the country. It is the duty of the parents, NGO’s and the government to
see that every child goes to school.
MIGRANT WORKERS
Migrants are a particularly vulnerable group and find their rights routinely violated.
In order to eliminate widespread discrimination against the migrant workers and members of
their families, a Convention was adopted by the General Assembly on December 18, 1990,
which known’s as the International Convention on the Protection of the Rights of all
migrants’ workers and members of their families. The Convention came into force on July 1,
2003, in accordance with Article 87 Para 1 of the Convention. As on February 3, 2016, the
Convention had 48 States Parties. The 93 Article Convention is divided into nine parts which
cover its scope and definitions, non- discrimination, human rights of all migrant workers
irrespective of their status, other rights of those who are documented or in a ‘regular
situation’.
A migrant worker has been defined under Article 2 of the Convention as a person
who is to been engaged or has been engaged in a remunerated activity in a State of which he
or she is not a national. The expression ‘member of the family’ has also been defined under
Article 4 as persons married to migrant workers or having with them a relationship that,
according to applicable law, produces effects equivalent to marriage, as well as their
dependent children and other dependent persons who are recognized as member of the family
by applicable legislation or applicable bilateral or multilateral agreements between the States
concerned.
DISABLED PERSONS
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There are 650 million men, women and children in the World who live with either
mental or physical disabilities. Most of them live in the Developing World. They suffer from
discrimination and lower standards of living. They are very often denied the basic human
rights. They are denied basic educational opportunities and often given menial or poorly paid
jobs. Social attitudes exclude them from cultural life and normal social relations. Persons
with disabilities include those who have long-term physical, mental, intellectual or sensory
impairments which in interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others.
The General Assembly on December 13, 2006, adopted by consensus the Convention
on the Rights of Persons with Disabilities. The Convention came into force on May 3, 2008,
after its ratification by 20 States. As on February 3, 2016, the Convention had 161 States
Parties.
The Convention laid down a number of rights to be provided to the persons of
disabilities such as right to life, equal recognition before the law, access to justice, liberty and
security of persons, freedom from torture or cruel, inhuman or degrading treatment or
punishment, freedom from exploitation, violence and access to information, respect for
privacy etc.
The Convention also stipulated that persons with disabilities shall have the right to
education, health, work, employment and an adequate standard of living. They shall
participate in political and public life and in cultural life on the equal basis with others.
It is to be noted that the Convention did not create new rights for the persons with
disabilities. However, it specifically mentioned them so that States Parties to the Convention
may raise awareness in the society to foster respect for the rights and dignity of persons with
disabilities.
INDIGENOUS PEOPLE
Indigenous People or Aboriginal Peoples are those who were living on their lands
before settlers came from elsewhere. They are the descendants of those who inhabited a
country or a geographical region at the time where peoples of different cultures or ethnic -

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origin arrived, the new arrivals later becoming dominant through conquest, occupation,
settlement or other means, thus they consider themselves to distinct from other section of the
societies. Indigenous people are also called “first People” tribal peoples, aboriginals, and
autochthons. It has been estimated the number of indigenous people is approximately 370
million and they are spread across 70 countries from Australia to the Arctic. More than half
of them live China and India, some 10 million in Myanmar (Burma) and 30 million in South
America.
Indigenous and Tribal Peoples in many parts of the World do not enjoy their
fundamental rights in the State in which they live to the same degree as the rest of the
Population. Presently, they are no dominant section of the Society because of their Poverty
and illiteracy. They are required to be provided for their cultural protection on land and
human rights by their respective States.
International action to protect the human rights of the indigenous peoples has been
limited. International Labour Organisations (ILO) for the first time in 1953 completed a
study that led to the adoption of a Convention in 1953 on the rights of Indigenous and Tribal
Populations Convention (NO. 107). The Convention was least effective to provide rights to
the indigenous peoples and therefore the ILO in 1989 adopted another Convention which is
known’s as the convention (No.169) concerning indigenous and tribal peoples in Independent
Countries which came into force on September 5, 1991. The General Assembly on
September 13, 2007, adopted a landmark Declaration on Rights of Indigenous Peoples.
OLDER PERSONS
The United Nations is concerned not only with the quality of the life of human
beings, but it is equally concerned with the longevity of the human beings. The United
Nation is committed to helping those countries which are facing the challenge for the needs
of elderly persons and using effectively their contribution to development.
The principle for Older Persons

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The General Assembly on December 16, 1991, by a resolution, adopted a set of 18

Principles for older persons and government were encouraged to incorporate the principle
into their national programs.
These principles were related to the independence, participation, care, self-fulfilment
and the dignity of the older persons. Some of the principles are as follows:
Older persons should have the opportunity to work or to have access to other income
generating opportunities.
Older persons should remain integrated with society, participate actively in the
formulation and implementation of policies that directly affect their well-being and share
their knowledge and skills with younger generations.
Older persons should have access to health care to help them to maintain or regain the
optimum level of physical, mental and emotional well-being and to prevent or delay the onset
of illness.
Older persons should be able to pursue opportunities for the full development of their
potential.
Older persons should be able to live in dignity and security and be free of exploitation
and physical or mental abuse.
The Second World Assembly on Ageing took place in Madrid from 8 to 12 April
2002. The participating countries adopted two key documents: A Political Declaration and
the Madrid International Plan of Action on Ageing, 2002. Both documents included
commitments from Governments to devise and implement measures to address the
challenges posed by ageing. The documents also put forward over 100 recommendations for
action based on three priority themes: older persons and development; advancing health and
well-being into old age, and ensuring enabling and supportive environments. The Assembly
gave the United Nations regional commissions responsibility for translating the International
Plan of Action on Ageing into regional action plans reflecting, inter alia, the demographic,
economic and cultural specificities of each region and serving as a basis for implementing the
recommendation.

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PERSONS BELONGING TO NATIONAL OR ETHNIC, RELIGIOUS

AND LINGUISTIC MINORITIES
The Convention on Civil and Political Rights under Article 27 provided that persons
belonging to ethnic, religious and linguistic minorities shall not be denied the right to enjoy
their own culture, to profess and practice their own religion, or to use their own language.
Inspired by the above, the General Assembly on December 18, 1992, adopted the Declaration
on the Rights of Persons belonging to National or Ethnic Religious or Linguistic Minorities.
The Declaration proclaimed that promoting and Protecting the rights of such minorities
contribute to the political and social stability of states in which they live. The declaration
consisting of nine Articles stated the following rights to such persons.
The existence and the national or ethnic, cultural, religious and linguistic identity of
minorities within their respective territories bylaws and other measures. (ARTICLE1)
Persons belonging to minorities have the right to enjoy their own culture to profess
and practice their own religion and use their own language. (ARTICLE 2)
Persons belonging to minorities have the right to participate in effectively cultural,
religious social, economic and public life. (Para 2, Article 2)
Persons belonging to minorities have the right to participate effectively in decisions
on the national and, where appropriate, regional level concerning the minorities to which
they belong or to regions in which they live, in a manner not incompatible with national
legislation (Para 3, Article 2).
Persons belonging to minorities have the right to establish and maintain their own
associations (Para 4, Article 2).
Persons belonging to minorities have the right to establish and maintain, without any
discrimination, free and peaceful contacts with other members of their groups and with
persons belonging to other minorities. (Para 5, Article2).
Minorities may exercise their right to establish and maintain without any
discrimination, free and peaceful contacts with other members of their groups and with
persons belonging to other minorities (Para 5, Article 2).

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States should provide adequate opportunities for persons belonging to minorities to

learn their mother tongue and to participate fully in the economic progress and development
in their country (Article 4).
States are required to co-operate on questions relating to persons belonging to
minorities, inter alia, exchanging information and experience, in order to promote mutual
understanding and confidence. Measures were taken by the state to ensure the effective
enjoyment of the rights shall not prima facie be considered contrary to the principle of
equality contained in Universal Declaration of Human Rights.

***

UNIT VI
ENFORCEMENT OF HUMAN RIGHTS – ADJUDICATION AND
ENFORCEMENT
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INTRODUCTION
The State maintains the framework of social order by implementation of variouslaws
without which well ordered social life would not be possible. Variousphilosophers of social
contract theory are of the view that object of the creation of stateis to maintain and protect
the rights of individuals. According to Aristotle, State cameinto existence out of base
necessities of life and continues for the sake of good life. Prof.Laski expressed that State is
known by the rights it maintains. Similarly Locke was ofthe view that end of state is to
remove the obstacles that hinder the development of an individual. Thus, the existence of the
state is recognized with the protection of rightsand liberties of individual which is the main
object of state.
Protection of the dignity of an individual is essential for harmony in the society,as its
violation can have grave impact on individual in particular and on society ingeneral. Each
individual is entitled to some rights which are inherent to humanexistence. Such rights should
not be violated on the grounds of gender, race, caste,ethnicity, religion etc. these are called
human rights. Human rights are also known asbasic rights, fundamental rights, natural rights
or inherent rights. The concept of humanright is not a new phenomenon, ‘Human Rights’ is a
twentieth century term but itsnotion is as old as humanity. It has gone through various stages
of development andhas taken long time to become the concept of present day. These rights
had place in allancient societies though referred by different names, it includes civil rights,
libertiesand social cultural and economic rights. These rights are essential for all individual
asthese are consonant with the freedom and dignity and ultimately contribute to social
welfare.
Protection of human rights is a necessity for the development and growth of
anindividual personality, which ultimately contributes in the development of the nation asa
whole. It is an internationally recognized issue and various international instrumentshave
been established for the protection of human rights. The concept of human rightsis dynamic
and adapts to the needs of the nation and its people. The ultimate purposeof the national as
well as international law is to safeguards the human rights of thepeople.

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At international level various efforts have been made for the protection of
humanrights. The United Nations through its charter represents a significant advancement
inthe direction for the promotion as well as protection of human rights. International billon
human rights has been incorporated in the UN Charter. The UN Charter containsvarious
provisions for the promotion of human rights and fundamental freedoms in thePreamble and
in various Articles 1, 13(b), 55, 56, 62 (2), 68 and 76(c).6 Apart from UNCharter there are
four international instruments created under the auspices of theUnited Nations known as
International Bill of Human Rights, which include theUniversal Declaration of Human
Rights 1948, the International Covenant on Civil andPolitical Rights 1966, and the
International Covenant on Economic, Social, and CulturalRights 1966, the Optional Protocol
to the International Covenant on Civil and PoliticalRights, 1966.7 The international human
rights regime is continuously growing with thepassage of time, it provides certain accepted
legal standards which all the nationsshould accept and implement in their domestic laws. The
Governments of all thenations must work to promote the welfare of people by eliminating all
forms ofdiscriminations and provide right to equality and justice to all.

HUMAN RIGHTS IN INDIA

India is the biggest democracy in the world. Being a democratic country one ofthe
main objectives is the protection of the basic rights of the people. Government ofIndia has
given due consideration to the recognition and protection of human rights.The Constitution
of India recognizes these rights of the people and shows deep concerntowards them.
The Universal Declaration of Human Rights contains civil, political, economic,social
and cultural rights. Constitution guarantees most of the human rights containedin Universal
Declaration of Human Rights. Part III of the constitution contains civil andpolitical rights,
whereas economic, social and cultural rights have been included in Part IV of the
Constitution. All the statutes have to be in concurrence of the provisions ofthe Constitution.
The philosophy and objective of the Constitution of India is enshrined in thepreamble
which include the protection of the dignity of an individual. For thefulfilment of this

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objective Part III of the constitution guarantees fundamental rights topeople which are
essential for the development of an individual personality, theserights include right to
equality, the right to freedom, the right against exploitation, theright to freedom of religion,
cultural and educational rights and the right toconstitutional remedies. It is the duty of the
central as well as state Governments toprovide adequate conditions to each individual to
enjoy their human rights. Theconstitution through Directive Principles of State Policy
enshrined in the Part IV of theConstitution, ascertains the duties on the government to work
for the welfare of thepeople and protection of human rights of the people. These are guiding
principles forthe state to make policies regarding distributive justice, right to work, right
toeducation, social security, just and humane conditions of work, for promotion ofinterest of
weaker section, raise the standard of nutrition and standard of living and toimprove public
health, protection and improvement of environment and ecology etc. sothat each individual
can enjoy rights to the fullest.

ROLE OF THE JUDICIARY

Only provision for the fundamental rights does not fulfil the objective of‘protection of
dignity of an individual’, but free enjoyment of the rights has to beensured. Therefore,
Article 32 guarantees right to constitutional remedies, i.e. right tomove to Supreme Court to
enforce fundamental rights.
It is constitutional mandate of judiciary to protect human rights of the
citizens.Supreme Court and High Courts are empowered to take action to enforce these
rights.Machinery for redress is provided under Articles 32 and 226 of the constitution.
Anaggrieved person can directly approach the Supreme Court or High Court of theconcerned
state for the protection of his/her fundamental rights, redress of grievancesand enjoyment of
fundamental rights. In such cases Court are empowered to issueappropriate order, directions
and writs in the nature of Habeas Corpus, Mandamus,Prohibition, Quo-Warranto and
Certiorari.

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Judiciary is ultimate guardian of the human rights of the people. It not onlyprotects
the rights enumerated in Constitution but also has recognized certain unremuneratedrights by
interpreting the fundamental rights and widened their scope. Asa result people not only enjoy
enumerated rights but also un-enumerated rights as well.
Supreme Court in Maneka Gandhi v. Union of India,interpreted the right to life and
towiden its scope and deduced un-enumerated right such as “right to live with
humandignity”. Supreme Court propounded the theory of “emanation” to make the
existenceof the fundamental right meaningful and active. Thereafter, in many cases court
such asPeople's Union for Civil Liberties and another v. State of Maharashtra andothers,
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi held thatright to life
includes right to live with human dignity. Therefore, through the judicialinterpretations
various rights have been recognized though they are not specificallyprovided in Part III of the
Constitution.The rule of locus standi, i.e. right to move to the court, whereby only
aggrievedperson can approach the court for redress of his grievances has been relaxed by
thejudiciary. Now court through public interest litigation permits public spirited personsto
file a writ petition for the enforcement of rights of any other person or a class, if theyare
unable to invoke the jurisdiction of the Court due to poverty or any social andeconomic
disability. In S.P. Gupta v. Union of India and others,Supreme Court held thatany member of
the public can approach the court for enforcing the Constitutional orlegal rights of those, who
cannot go to the court because of poverty or any otherdisabilities. Person can even write
letter to the court for making complaints of violationof rights. Public interest litigation is an
opportunity to make basic human rightsmeaningful to the deprived and vulnerable sections of
the community. To assurevulnerable section social, economic and political justice, any public
spirited personthrough public interest litigation can approach the court to protect their rights
on behalfof aggrieved persons who cannot approach the court themselves due to their
vulnerableconditions. Similar observations have been made by Supreme Court in
variousjudgments such as in Bandhua Mukti Morcha v. Union of India,Ramsharan
Autyanuprasiand another v. Union of India and Others,Narmada Bachao Andolan v. Union

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of India.Therefore, public interest litigation has become the tool for the protection of
humanrights of the people in India.The oppressed sections of the society are more prone to
the violation of humanrights. Most vulnerable sections of society are children, women and
socially andeducationally weaker sections of society. Judiciary has taken many steps to
ensureprotection of human rights of these sections.
Children are more prone to exploitation and abuse. The rights of the children
areneeded to be specially protected because of their vulnerability. For this reason
UnitedNations Convention on the Rights of the Child was adopted in 1989. This
conventionbrings together children’s human rights, as children require safety and protection
fortheir development. Judiciary is playing a commendable role in protecting the rights
ofchildren from time and again.There are various instances where judiciary intervened and
the rights of children.In the case of Labourers working on Salal project v. State of Jammu
and Kashmir, SupremeCourt held that child below the age of 14 years cannot be employed
and allowed towork in construction process. Court has issued various directions related to
childlabour. Supreme Court in Vishal Jeet v. Union of India asked governments to
setupadvisory committee to make suggestions for eradication of child prostitution and
toevolve schemes to ensure proper care and protection to the victim girls and children.
The Supreme Court further in Gaurav Jain v. Union of Indiashowed its concern
aboutrehabilitation of minors involved in prostitution and held that juvenile homes should
beused for rehabilitation of them and other neglected children.Mumbai High Court in Public
at large v. State of Maharashtrarescued childrenfrom flesh trade and passed order for
checking sexual slavery of children and for theirrehabilitation. Children are not only prone to
sexual abuse but they are also sometimeskept as bonded labourers as was in the case of
People's Union for Civil Liberties (PUCL) v.Union of Indiawhere the Supreme Court
released child labourers and also ordered forgrant of compensation to them. Concern of the
Supreme Court about the protection ofrights of children does not ended here it reiterated the
importance of compulsoryprimary education vis-a-vis eradication of child labour in the case
of Bandhua MuktiMorcha v. Union of India.

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Supreme Court in Sakshi v. Union of Indiahighlighted the need to establishprocedure

that would help the child victim to testify at ease in the court and held thatproceedings should
be held in cameras. Delhi High Court in Sheba Abidi v. State ofDelhiobserved that child
victims are entitled to get support person during trial andalso established that child victims
can testify outside the court environment.
Women are considered weak in our society which has resulted in thebackwardness of
women in every sphere. Women remains oppressed ones and areoften denied basic human
rights. They are subjected to violence in society whether it iswithin four walls of the house or
at workplace. Despite the provision of right toequality enshrined under Article 14 of the
Constitution, they are subjected todiscrimination. Gender is considered to be the most
important factor as for as Indianlabour market is concerned. Discrimination against women
labourer in terms of wagepayments is a very common phenomenon in India. Wages earned
by women aregenerally lesser than their male counterparts. However, Article 39 of the
Constitutionguarantees the principle of equal pay for equal work for both men and women.
Despitethe guarantees of equal rights to women still they are not equally treated with men.
Supreme Court has played remarkable role in protection of their rights such as in caseof
Associate Banks officers Association v. State Bank of India,Supreme Court protected
therights of women workers and held that women workers are in no way inferior to theirmale
counterparts and hence there should be no discrimination on the ground of sexagainst
women. In State of Madhya Pradesh v. Pramod BhartiyaSupreme Court held thatunder
Article 39 the State shall direct its policy towards securing equal pay for equalwork for both
men and women.
Article 21 i.e. protection of life and personal liberty was invoked for the dignifiedlife
for the prostitutes by Supreme Court in case of State of Maharashtra v. MadhukarNarayan
Mandlikarheld that even a woman of easy virtue is entitled to privacy and noone can evade
her privacy. In Bodhi Satwa Gautam v. Subra ChakarbortySupreme Courthas held that rape
is a crime against basic human rights. Supreme Court laid downguidelines for protection of
women against sexual harassment at work place in case ofVishaka v. State of Rajasthan30

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and reiterated the same in Medha Kotwal Lele v. Union ofIndia.Guidelines for ensuring the
safe work environment for women were given andmade it mandatory for employer to take
responsibility in cases of sexual harassment atwork.
Supreme Court also protected the rights of workman in BALCO Employees
Union(Regd.) v. Union of India,Consumer Edu. & Research Centre v. Union of India. In
People'sUnion for Democratic Rights v. Union of Indiathe Supreme Court stated that
releasingpersons from bonded labour was connected to rehabilitation process in order to
givefull remedy. In Workmen v. Rohtas Industriesthe Supreme Court observed that the
rightto equality became instrumental in protecting right of workers against
unreasonableclosures and discriminations in payment of pensions.
Judicial system protects the rights of its citizens including prisoners.The
SupremeCourt by interpreting Article 21 of the Constitution protected and preserved the
rightsof the prisoners. In case Prem Shankar v. Delhi AdministrationSupreme Court held
thatpractice of using handcuff and fetters on prisoners violates the guarantee of
humandignity. A landmark judgment in D.K. Basu v. State of West Bengal, protected the
rightsof the prisoners and laid down various guidelines for arrest and detention to preventthe
custodial violence and observed that right to life include right to live with humandignity.
Similarly Court in Sheela Barse v. State of Maharashtra dealt with an issue ofmistreatment
of women in police station and court laid down various guidelines for theprotection of rights
of women in custodial/correctional institutions. Further in Citizensfor Democracy v. State of
Assam and others,Supreme Court held that handcuffing andtying with ropes is inhuman and
in utter violation of human rights guaranteed underthe international laws and the laws of the
land. Court directed that handcuffs or otherfetters shall not be forced on prisoners- convicted
or under trial while lodged in jail oreven while transporting, police and jail authorities shall
have no authority to directhandcuffing of any inmate of jail or during transportation without
permission from themagistrate. While executing of arrest warrant person arrested cannot be
handcuffedwithout obtaining orders from magistrate.

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Therefore, Judiciary is playing a crucial role in the protection of the human rightsof
the people from time and again by expanding the scope of the rights and recognizingnew
rights with the need of time. Judiciary has expanded the scope of right to life toinclude
entitlements which are vital for the enjoyment of right to life with dignity.Courts have
protected right of the people in numerous cases whether it is a rightagainst violence in
custody, to live in a pollution free environment, right to health, rightto adequate wages of the
workers, safety of the women at workplace, compensation torape victim and rights of the
child labourers and so on.
THE PROTECTION OF HUMAN RIGHTS ACT, 1993
The need for the protection of human rights issues both at national andinternational
level led to the enactment of an Act which specifically deals with theprotection of Human
rights called ‘The Protection of Human Rights Act, 1993’.
The objective of the Act is to provide organizational structure for protectinghuman
rights. The Act provides for Human Rights Commission at national level as wellas at State
level in each state and further for setup of Human Rights Courts at districtlevel for better
protection of human rights and matters connected therewith.
The Act defines human rights in Section 2(d) as “the rights relating to life,
liberty,equality and dignity of the individual guaranteed by the Constitution or embodied in
theInternational Covenants and enforceable by courts in India.” The above definition,
however,limits the scope of the functioning of the National Human Rights Commission.
ThoughIndia ratified the two Covenants, these are International Covenant on Civil and
PoliticalRights and the International Covenant on Economic, Social and Cultural Rights.
International covenants are not justifiable before the courts, so there should be laws
inthe country which is to be with the conformity of these conventions. Therefore, therights
guaranteed in the Constitution are in conformity with these InternationalConventions.
IMPORTANT FEATURES OF THE PROTECTION OF HUMAN
RIGHTS ACT:

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The PHRA envisages the establishment of a National Human RightsCommission and

the State Human Rights Commissions and the HumanRights Courts. The Act consists of
forty-three sections arranged under eightchapters.
The Protection of Human Rights Act, 1993 defines the term ‘humanrights’ to mean
‘rights relating to life, liberty, equality and dignity of theindividual guaranteed by the
Constitution, or embodied in the InternationalCovenants and enforceable by the Courts in
India. In this definition ‘humanrights’ have been given a wider ambit than those embodied in
the IndianConstitution so as to include the rights listed in International Covenants.
The role of judiciary has been remarkable to interpret the variousenactments and the
provisions giving brighter spectrum and the newdimensions to the various provisions of the
Act. Recent important verdicts ofHon’ble Supreme Court, High Courts, and various
Commissions andTribunals have raised the scope of various provisions of the Act.
The enactment of PHRA has empowered the National Human RightsCommission
(herein-after referred to as NHRC) to function from New Delhiwith jurisdiction all over
India. The powers of the Commission are intendedto be so wide as to overseer the
functioning of the organs of the State, notwith a view to interfering with their constitutionally
assigned functions, butto highlighting before them the pressing problems endangering human
rightsin order that the constitution, which the people of this country have givenunto
themselves to safeguard a true democratic system of administration,becomes a meaningful
instrument of justice and equity and an invigoratingforce to carry the nation forward. The
Commission completes 13 years of itsexistence on October, 12,2006. Over the past 13 years,
the Commission hasendeavoured to give a positive meaning and content to the objectives set
outin the PHRA, 1993 for better protection of human rights. The Commissionhas worked
vigorously and effectively all these years to create awareness andsensitising public
authorities for promoting and protecting human rights inthe country.Apart from redressal of
individual complaints and suo-moto actions ofhuman rights violations, the NHRC undertakes
various programmes toaddress societal issues, systematic reforms of police setup, prisons and
tospread in promoting a culture of human rights in a country which has variedkinds of

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problems stemming from its size and population. The PHRA alsoembodies provisions with
regard to the establishment of State Human RightsCommissions all over India to supplement
the efforts of NHRC. Besides,Human Rights Courts are also being set up in the Districts to
dealexclusively with the proven cases of human rights violations.
HUMAN RIGHTS AND ROLE OF NATIONAL HUMAN
RIGHTSCOMMISSION
The National Human Rights Commission is an expression of India’sconcern for the
protection and promotion of human rights. It is a uniqueexpert body, which is created under
the Protection of Human Rights Act,1993, for examining and investigating the complaints
relating to violationsof human rights, as also the negligence on the part of any public servant
inpreventing such violation.
In India, the National Human Rights Commission can play a vital rolein influencing
the policy making and sometimes even policy initiations,facilitating protection and
promotion of human rights, such institutionsprovide an excellent mechanism for building
public opinion and strongalliances and partnerships with non-governmental organisations and
otherhuman rights activists for influencing the national agenda on human rights.
Apart from the resolution of disputes brought to such institutions, voicearticulated,
studies conducted and research produced by these institutionscarry great credibility and
respectability and thus, can be important sourcematerial in the quest of securing and
protecting human rights. There is a needto evolve more meaningful interaction and
networking among theseinstitutions.
The straggle for protection and promotion of human rights is long andarduous. It is
important that we constantly remain engaged in devisingstructures and institutions, which
can make us all more sensitive andresponsive towards protection and promotion of human
rights. It is to benoted that the wide comprehension of human rights indicates that
thejudiciary alone is not equipped to perform the entire task of promotion andprotection of
human rights. There is a need of a similar institution tocomplement the judiciary by
monitoring the functioning of the institutionsof the State, which most often are responsible

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for violation and neglect inprevention of violation of human rights. The National Human
RightsCommission is an institution acts as a catalyst to improve the quality ofgovernance, on
which depends the state of human rights in a country.
The proposal for a Commission as originally contained in a Human
Rights Commission Bill which was introduced in the Lok Sabha on 14 thMay, 1993. When the
same was considered by the Parliamentary StandingCommittee on Home Affairs, it was
extensively criticised with regard topowers, functions and manner of functioning of the
proposed Commission.
After certain modifications in the light of comments made on the originalBill, the
Commission was initially constituted on 12th October, 1993 underthe Protection of Human
Rights Ordinance on 28th September, 1993, whichwas later presented to the Parliament on
25th November, 1993 to replace theOrdinance and became ‘The Protection of Human Rights
Act, 1993(hereinafter referred to as PHRA)1. 2 The Act is extended to the whole ofIndia, but
applies to the State of Jammu and Kashmir only of the matterspertaining to or relatable to
any of the Entries enumerated in List I and ListIII of the Seventh Schedule to the
Constitution as applicable to the State.Subsequently, the PHRA, 1993, has amended in the
year 2006 for effective. An implementation of human rights.

CHARACTERISTICS OF THE COMMISSION:

The establishment of the National Human Rights Commission was theresult of
criticism against India, both at National and International level,regarding human rights
situation in Kashmir and Punjab. Several Indiawatchers thought at that time that, the creation
of the NHRC was a tacticalmove on the part of the Government of India to take some of the
pressureoff, so far as the alleged violation of human rights in Kashmir and Punjabwere
concerned. Due to this background that the Commission needs is thecredibility and
acceptance, which will ultimately come from the work itdoes, it stand on human rights issues
and the fate of its recommendations. Itsadvocacy for abolition of TADA, its stand on
custodial deaths, rights ofwomen and children, and the police atrocities have all led to an

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atmospherewhere the NHRC has made its presence felt. Its recommendations havegenerally
been accepted by the Governments on various matters.
Despite all this, and taking into account the vastness and variety ofhuman rights
issues in India, the Commission faces a gigantic task. Thequestion is whether the
arrangements envisaged under the National HumanRights Commission Act, 1993 are
sufficient to meet the challenge? It may bementioned that the Act is a very comprehensive
piece of legislation which,apart from the Commission, it also envisages State Human
RightsCommissions at State level and Human Rights Courts at District level for‘better
protection of human rights’. Therefore, the Commission happens tobe the only institution
operational under the Act. An attempt here is madeto analyse and assess the statutory
framework of NHRC from the point ofview of credibility and acceptance. Because ultimately
these will determinewhether it can face the challenge of creating a human rights culture in
thiscountry. Credibility or acceptance of any institution created by the State suchas a
National Human Rights Commission depends at least upon three factors i.e. autonomy and
transparency.

1. Autonomy:
It involves the capacity to take an independent decision uninfluencedby any vested
interest including the State. Autonomy is ensured by themanner of appointments to the
Commission, the statutory status and theposition of its members, security of their tenure and
unconditional financialgrants to carry out its activities. All these matters have been adverted
to in theAct. The Commission consists of five members including its Chairperson. While the
Chairperson has to be a person, who has been the Chief Justice ofthe Supreme Court, the
other two members have to be respectively the Judgeof the Supreme Court and the Chief
Justice of a High Court. Two membershave to be appointed from amongst those persons who
have knowledge of,or practical experience in, matters relating to human rights. So far,
onlyJudges have been appointed as the members of the Commission.It is pertinent to mention
that the eligibility criteria for membership ofthe Commission in terms of qualification and

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background would have to becarefully considered. The guiding principle must be that
eminence of themembers should enhance the credibility, prestige and the moral authority
ofthe Commission. The members should also intimately aware of the fieldconditions in the
country with respect to various aspects of human rights, inparticular, the legal and
enforcement aspects and the welfare thrust of theadministration in respect of vulnerable
sections of the society.
The Members of the Commission, including its Chairperson areappointed for a five
years term and can be removed earlier only on thegrounds of proved misbehaviour or
incapacity after an inquiry made by theSupreme Court in this regard. That accords the
members necessary securityof tenure.
The Members of the Commission, including its chairperson areappointed by the
President of India after recommendations by a nominatingCommittee chaired by the Prime
Minister and consisting of Speaker of theLok Sabha, Minister in-charge of the Ministry of
Home Affairs in theGovernment of India, Leader of Opposition of Lok Sabha, and Leader
ofOpposition in Rajya Sabha, and Deputy Chairmen of Rajya Sabha as Members. The
Constitution nominating committee is such that the personsof stature and integrity will be
appointed by the Commission.
Financial autonomy is also very crucial for the Commission. Section32 of the said
Act10 requires the Central Government to pay the Commissionby way of grants such sums of
money as the Government ‘may think fit forbeing utilised for the purposes of the Act’ after
due appropriation made bythe Parliament. Thus, the actual amount to be handed over to
theCommission depends upon the goodwill of the Government.
2. Transparency:
In the functioning of the Commission, transparency is another factorcrucial for its
creditability and acceptance. It is ensured by the openness andfairness of the procedures
adopted to pursue matters before it. TheCommission has framed detailed regulations which
govern its procedures to make an inquiry. The Commission either proceeds to inquire into
thematter itself or it may hand over the case for further investigation for whichit maintains its

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own investigative machinery headed by a person not belowthe rank of a Director General of
Police. Thus, the Commission does notdepend upon the State for investigation. The
investigative machinery worksunder the control and direction of the Commission.
To ensure more transparency, outsiders can be appointed asinvestigators or observers.
To ensure fairness, the regulations require thecommission to afford, in its discretion, a
personal hearing to the petitioner orany other person if the Commission considers it
necessary for theappropriate disposal of the matter before it. Witnesses, who appear before
it,may also be cross-examined and an opportunity of reasonable hearing isgiven to a person
who might be adversely affected by the findings of theCommission.
The openness, with which the Commission is supposed to function, isfurther clear
from the fact that it is required to provide a copy of its inquiry to the complainant, make its
decision public and place it’s Reports before the Parliament. The Act and the Regulations
made there under, thus ensureopenness as well as fairness of the proceedings.
COMPOSITION OF THE COMMISSION:
The Commission shall consist of -
i) A Chairperson who has been a Chief Justice of the Supreme Court;
ii) One Member who is, or has been, a Judge of the Supreme Court;
iii) One Member who is, or has been, the Chief Justice of a High Court;
iv) Two Members to be appointed from amongst persons havingknowledge of, or
practical experience in, matters relating to human rights.
Apart from this, the Chairpersons of the National Commission for Minorities, the
National Commission for the Scheduled Castes [and theNational Commission for Scheduled
Tribes] and National Commission forWomen, shall be deemed to be Members of the
Commission for thedischarge of functions enumerated in clauses (b) to (j) of Sec. 12 of the
Act.
APPOINTING AUTHORITY:

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Every appointment shall be made by the President on a warrant underhand and seal
appoints the Chairperson and other members, after obtainingthe recommendations of a
committee composed of -
a) The Prime Minister ..... Chairperson
b) Speaker of the House of the People ..... Member
c) Minister-in-charge of the Ministry of Home Affairs ..... Member
d) Leader of the Opposition in the House of People ..... Member
e) Leader of the Opposition in the Council of States ..... Member
f) Deputy Chairman of the Council of States ..... Member
TERMS AND REMOVAL OF THE CHAIRPERSON AND OTHER
MEMBERS OF THECOMMISSION:
The terms of the office of the Chairperson and other nominatedMembers is five years,
from the date on which he enters upon his office oruntil he attains the age of seventy years,
whichever is earlier. A member ofthe Commission is eligible for reappointment provided he
had not attainedthe age of seventy years, but the Chairperson is not eligible for a second
term.
The Chairperson or any Member of the Commission can be removedfrom his office
only by Order of the President of India on the ground ofproved misbehaviour or incapacity
after an inquiry by the Supreme Court, onreference being made to it by the President.
Further, in any one of thefollowing cases, the President may by order remove the
Chairperson or anyother Member who
i) Is adjudged an insolvent; or
ii) Engages during his term of office in any paid employment outsidethe duties of his
office; or
iii) is unfit to continue in office by reason of infirmity of mind orbody; or
iv) Is of unsound mind and stands so declared by a competent court; or
v) Is convicted and sentenced to imprisonment for an offence which in the opinion of
the President involves moral turpitude.

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FUNCTIONS AND POWERS OF THE COMMISSION:

The Commission has been envisaged as an activist body for creating ahuman rights
culture in the country. The effectiveness and impact of theCommission will depend upon the
range of functions, it is required toperform. The powers conferred upon it to accomplish the
job and theultimate fate of its recommendations. Apart from its functions ofadjudicating
complaints regarding human rights violations, it acts as anoverseer of the human rights
situation in the country with the help of its suomotu initiations. The functions that are to be
discharged by the Commissionare
a) Inquire, suo motu, or on a petition presented to it by a victim or any personon his
behalf, [or on a direction or order of any court] into complaint of
i)Violation of human rights or abetment thereof; or
ii) Negligence in the prevention of such violation by a public servant;
b) intervene in any proceeding involving any allegation of violation ofhuman rights
pending before a Court with the approval of such Court;
c) [visit, notwithstanding anything contained in any other law for the timebeing in
force, any jail or other institution under the control of the StateGovernment, where persons
are detained or lodged for purposes oftreatment, reformation or protection, for the study of
the living conditions ofthe inmates thereof and make recommendations thereon to the
Government]
d) Review the safeguards provided by or under the Constitution or any lawfor the
time being in force for the protection of human rights and recommendmeasures for their
effective implementation;
e) Review the factors, including acts of terrorism, that inhibit the enjoymentof human
rights and recommend appropriate remedial measures;
f) Study treaties and other international instruments on human rights andmake
recommendations for their effective implementation;
g) Undertake and promote research in the field of human rights;

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h) Spread human rights literacy among various sections of society andpromote

awareness of the safeguards available for the protection of theserights through publications,
the media, seminars and other available means;
i) Encourage the efforts of non-governmental organizations and institutionsworking
in the field of human rights;
j) Such other functions as it may consider necessary for the promotion of human
rights.
According to Section 29 all the above provisions except clause (f), shallbe applicable
to the State Human Rights Commissions. The Commission hasbeen empowered to hear and
inquire all the complaints regarding theviolations of human rights. The Commission proceeds
either suo motu or onthe receipt of a complaints. The procedure adopted in both the cases is
thesame. However, the complaints of violations of human rights by Members ofthe Armed
Forces are kept outside the purview of inquiry and investigation.
It is also incumbent upon the Commission to submit an Annual Reportand also
Special Reports to the Central Government and State Governmentsconcerned. The said
Governments shall have to present the Reports, alongwith a memorandum of action or
acceptance, before each House ofParliament and also before the House of the State
Legislature.
The Commission is authorized to utilize the services of any officer orinvestigating
agency of the Central or the State Governments for the purposeof conducting any
investigation pertaining to the enquiry. It is also to benoted that, the functions are enumerated
in Section 12, which encompasses awide area to enable the Commission not only to enquire
into the violations ornegligence in prevention of violation of human rights but also to
promote thehuman rights culture and perform any function necessary for the promotionof
human rights.
The main function of the National Human Rights Institutions is topromote and protect
human rights in its widest perspective. It is important tonote that the Paris Principles lay
down the minimum standards to beobserved in setting up any National Human Rights

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Institutions, even thoughno single model is prescribed. Variations in the mechanism

consistent withthe national ethos are permissible so long as the essence of Paris Principles
isobserved. The National Institutions must be strong and effective which canbe contribute
substantially to the realization of human rights andfundamental freedoms. It is no longer
doubted that effective enjoyment ofhuman rights requires the existence of national
infrastructures for theirpromotion and protection. The Paris Principles affirm that
NationalInstitutions are to be vested with competence to promote and protect humanrights
and given as broad a mandate as possible which must be set forthclearly in a Constitutional
and Legislative text.
The Paris Principles contain guidelines for the composition of NationalHuman Rights
Institutions, dealing with the mode of appointment of itsmembers ensuring pluralism
guarantees for operational independence,including the nature of its responsibilities and
methods of operation. TheVienna Declaration and Programme of Action adopted by the 1993
WorldConference of Human Rights confirmed the principles and encourage theestablishment
and strengthening of National Institutions having regard to thePrinciples, in addition to
Office of United Nations High Commissioner forHuman Rights. The Paris Principles relating
to the status of NationalInstitutions are an important step in the evolutionary process.
Governmentscontinue to avoid strict adherence to Paris Principles apprehendinginterference
by an autonomous body. For this reason, the nature ofconstitution of the National Human
Rights Institution and the manner inwhich it functions determines its efficacy.
It is relevant to mention here that ever since the constitution of theNational Human
Rights Commission, in accordance with the ParisPrinciples, the Supreme Court of India has
been facilitated considerably inthe performance of its task of the protection of human rights.
The NHRC hasbeen constituted for the better protection of human rights.
Thecomplementarities developed between the Supreme Court and the NHRC hasbeen
enabled the better protection of human rights and promotion of humanrights culture in the
country.

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The NHRC has been discharging its role as a catalyst to improve thequality of
governance, which helps in greater respect for human rights. Inshort, the NHRC of India is
seen as institution, which has proved that, ifproperly constituted, such an institution is greatly
efficacious in enabling theState to discharge its obligation under the United Nation Charter
and theNational Democratic Constitution of protecting human rights.
IMPLEMENTATION MECHANISM:
The important implementation mechanisms that can be made use of bythe National
Human Rights Commission in the process of dealing withviolation of human rights are as
follows:
a) Individual Complaints
b) Intervening in Court proceedings
INDIVIDUAL COMPLAINTS:
The procedure for dealing with the complaints comes underRegulation of the
National Human Rights Commission (Procedure)Regulations, 1994 which stipulates that “All
Complaints in whatever formreceived by the Commission shall be registered and assigned a
number andplaced for admission before a bench of two members constituted for thepurpose
not later than the two weeks of receipt thereof.
Ordinarily the complaints of the following nature are not entertain ableby the
Commission:
i) In regard to the events which happened more than one year beforethe making of
complaints;
ii) With regard to matters which are sub-judice;
iii) Which are vague, anonymous or pseudonymous?
iv) Those which are outside the purview of the Commission.
The Commission cannot inquire into any matter which is pendingbefore a State
Commission or any other Commission duly constituted underany law for the time being in
force. Besides this, the NHRC or the StateCommissions shall not inquire into any matter after
the expiry of one year,from the date on which the act constituting the violation of human

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rights isalleged to have been committed. This provision or inhibition of theCommission

contained in Section 36(2) of the Act came for considerationbefore the Supreme Court in
Paramjit Kaur v. State of Punjab. One of themain questions for consideration before the
Court was whether the inhibitioncontained in Section 36(2) would apply to the Commission
even when theSupreme Court under Article 32 of the Constitution referred a matter ofalleged
violation of human rights to the Commission?
In the instant case, S.Saghir Ahmad and S. Rajendra Babu, JJ.observed that the
provisions of the Act, do not bind or limit the powers of theSupreme Court in exercise of its
powers under Article 32. It is, therefore,reasonable to hold that the Supreme Court designated
the Commission as abody sui generis to carry out the functions and determine issues as
entrustedto it by the Supreme Court. This Court in exercise of the jurisdiction under
Article 32 of the Constitution entrusted the National Human RightsCommission to deal with
certain matters in the manner indicated in thecourse of its order. All authorities in the country
are bound by the directionsof this Court and have to act in aid of this Court. National Human
RightsCommission is no exception. The Commission would function pursuant tothe
directions issued by this Court and not under Act under which it isconstituted. In deciding the
matters referred by the Supreme Court, theNHRC is given a free hand and is not
circumscribed by any conditions.
Therefore, the jurisdiction exercised by NHRC in these matters is of aspecial nature
not covered by enactment or law, and thus acts sui generis.The power and jurisdiction of the
Supreme Court under Article 32 ofthe Constitution cannot be curtailed by any statutory
limitation, includingthose contained in Section 36(2) of the Act. If the Supreme Court
canexercise that power unaffected by the prohibition contained in Sec. 36(2),there is no
reason why the Commission, at the request of the Supreme Court,cannot investigate or look
into the violations of human rights even thoughthe period of limitation indicated in Section
36(2) might have expired. Insuch a situation, the Commission will not be affected by the bar
contained inSection 36(2) and it will be well within its rights to investigate the matter
referred to it by this Court.

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INTERVENING IN COURT PROCEEDINGS:

Comprehensive powers have been given to the Commission for theperformance of its
functions. The Commission either proceeds to inquire thematter itself or it may hand over the
case for further investigation for whichit maintains its own investigative machinery. While
inquiring into thecomplaint, the Commission has all the powers of a civil court trying a
suitunder the Code of Civil Procedure and particularly in respect of thefollowing matters:
i) Summon and enforce the attendance of witnesses and examining themon oath;
ii) Discovery and production of any document;
iii) Receiving evidence on affidavits;
iv) Requisitioning any public record or copy thereof from any court oroffice;
v) Issuing Commission for the examination of witnesses or documents;and
vi) Any other matter which may be prescribed;
The Commission has power to require any person, subject to anyprivilege, which may
be claimed, by that person under any law for the timebeing in force, to furnish information on
such points or matters as, in theopinion of the Commission, may be useful for, or relevant to,
the subjectmatter of the inquiry and any person so required shall be deemed to belegally
bound to furnish such information within the meaning of Section 176and Section 177 of the
Indian Penal Code. The Commission may authoriseany officer, not below the rank of a
Gazetted Officer to enter into anybuilding or place where the Commission has reason to
believe that anydocument relating to the subject matter of inquiry may be found, and
mayseize any such document relating to the subject matter of inquiry may befound, and may
seize any such document or take extract or copies therefrom.
The Commission shall be deemed to be civil court and when anyoffence as is
described in Sections 175, 178, 179, 180 or Section 228 of theIndian Penal Code is
committed in the view or presence of the Commission,the Commission may, after recording
the facts constituting the offence andthe statement of the accused as provided for in the Code
of CriminalProcedure, 1973, forward the case to a Magistrate having jurisdiction to trythe
same and the Magistrate to whom any such case is forwarded shallproceed to hear the

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complaint against the accused as if the case has beenforwarded to him under Sec. 346 of the
Cr.P.C., 1973.
However, under the present statutory scheme, Sec. 13 deals withCommission’s
inquiry powers, which does not provide the Commission withthe authority to compel
personal presence is an important aspect tostrengthen the powers of the Commission. Hence,
the Commission, in itsAnnual Report 1993-94 suggested an Amendment to Sec. 13 of the
PHRAgranting it, the power to compel attendance of any person during inquiry.But till so
far, it has not been complied with.
POWERS OF INVESTIGATION:
The Commission has enormous powers of t investigation. TheCommission either
proceeds to inquire into the matter itself or it may handover the case for further investigation
for which it maintains its owninvestigative machinery, headed by person not below the rank
of Directoror General of Police, who is appointed by the Commission itself. Thus, the
Commission does not depend upon the State for investigation. Theinvestigation machinery
works under the control and direction of theCommission.
While inquiring into the complaints of violations of human rights, theCommission
may
i) call for information or report from the Central Government or anyState
Government or any other authority or organisation subordinatethereto within such time as
may be specified by it: Provided that —
a) if the information or report is not received within the timestipulated by the
Commission, it may proceed to inquire into thecomplaint on its own;
b) if, on receipt of information or report, the Commission issatisfied either that no
further inquiry is required or that therequired action has been initiated or taken by the
concernedGovernment or authority, it may not proceed with the complaintand inform the
complaint accordingly;
ii) without prejudice to anything contained in clause (i), if it considersnecessary,
having regard to the nature of complaint, initiate aninquiry.

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A complaint may be dismissed inlimine. However, once a complaint isadmitted for

hearing, the Commission may either set down the matter forinquiry or investigation, as it
may deem proper. To ensure fairness, theregulations require the Commission to afford, in its
discretion, a personalhearing to the petitioner or to any other person if the Commission
considers itnecessary for the appropriate disposal of the matter before it. Witnesses,
whoappear before it, may also be cross-examined and an opportunity ofreasonable hearing is
given to a person who might be adversely affected bythe findings of the Commission. The
Protection of Human Rights Act and theregulations made there-under, thus ensure openness
as well as fairness of theproceedings. The Commission is thus one of the most powerful
Commissionsof inquiry.
POWERS OF THE COMMISSION SUBSEQUENT TO INQUIRY:
Sec. 18 deals with the steps to be taken by the National Human Rights Commission
[during and] after conducting an inquiry. If an inquiryconducted under the Act either suo-
moto or on the basis of a petition revealsthat the violation of human rights has occurred, the
Commission cannot byitself take any step to get the wrong undone, but may take any of
thefollowing steps :
a) where the inquiry discloses, the commission of violation of humanrights or
negligence in the prevention of violation of human rights by apublic servant, it may
recommend to the concerned Government orauthority the initiation of proceedings for
prosecution or such otheraction as the Commission may deem fit, against the concerned
personor persons;
b) approach the Supreme Court or the High Courts concerned for suchdirections,
orders or writs, as that Courts may deem necessary ;
c) recommend to the concerned Government or authority for the grant ofsuch
immediate interim relief to the victim or the members for hisfamily as the Commission may
consider necessary ;
d) the Commission shall send a copy of its inquiry report together with
itsrecommendations to the concerned Government, or authority, and theconcerned

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government or authority shall, within a period of one month,or such further time as the
Commission may allow, forward itscomments on the report, including the action taken or
proposed to betaken thereon, to the Commission.
LIMITATIONS ON THE JURISDICTION OF THE COMMISSION:
Sec. 19 deals with the special provisions when the members of theArmed Forces
violate the human rights. As regards the complaints ofviolation of human rights by the armed
forces of the Union, the Commissionis not empowered to make an inquiry or investigation in
the matter directly.
Instead, it may seek a report from the Central Government on its own motionor on the
complaint filed by a party. It may then make its recommendationsto the Central Government.
The Government is required to inform theCommission ordinarily within three months, of the
action taken on itsrecommendations. There may be some justification to follow a
differentprocedure and to bar an inquiry or investigation against the armed forces onthe
ground of national security, when these forces are engaged in defendingthe country against
foreign aggression. But, there is no justification to takethem out of the normal jurisdiction of
the Commission when these forces aredeployed to do policing which is not unusual in this
country.
The Act does not specifically confer upon the Commission, ajurisdiction to inquire or
investigate human rights violations by organisedgroups in the society. The focus of the Act is
violation of the human rightsby the public servants. Certain organised groups such as
terrorists, religiousfundamentalists, caste and communal groups are now perceived as
thegreatest threat to human rights. So far as the State or its functionary isconcerned, they
work under various types of pressures and check. They aresupposed to adhere to rules of
media, citizens and NGO’s. Organised groupswork under no such constraint. The Act should
appropriately focus uponthese groups.
STATE HUMAN RIGHTS COMMISSIONS:
According to the stipulation of the Protection of Human Rights Act,1993, there
should be a State Human Rights Commission in every State. TheState Government shall

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specify the place for headquarters of the StateCommission. The Chairperson shall hold office
for a term of five years, oruntil he attains the age of 70 years, whichever is earlier.
[The State Commission shall consists of –
a) a Chairperson who has been a Chief Justice of a High Court;
b) one Member who is, or has been , a Judge of a High Court or DistrictJudge in the
State with a minimum of seven years experience as DistrictJudge;
c) one Member to be appointed from amongst persons having knowledge ofor
practical experience in matters relating to human rights.]
The Chairperson and Members shall be appointed by the Governor byWarrant under
his hand and seal, provided that every appointment shall bemade after obtaining the
recommendation of a Committee consisting of:
a) the Chief Minister as the Chairperson;
b) Speaker of the Legislative Assembly as Member
c) Minister in charge of the Department of Home in that Stateas Member
d) Leader of the Opposition in the Legislative Assembly asMember
The Chairperson is appointed for a term of five years or till he attainsthe age of
seventy years, whichever is earlier. The other members areappointed for five years and they
are eligible for reappointment for anotherterm of five years. But no member shall hold office
after attaining the age ofseventy years. The Chairperson or any other member of the State
Commission may be removed from his office in the same manner and on thesame ground as
in the case of the Chairperson and Members of NationalHuman Rights Commission.
The State Commission shall submit an Annual Report to the StateGovernment, which
shall cause the report to be laid before the House ofState Legislature along with a
memorandum of action taken or proposed tobe taken on the recommendations of the State
Commission and the reasonsfor non-acceptance of the recommendations, if any.
It is to be noted that the powers and functions of the StateCommissions and the
procedure of inquiry and investigation are similar tothat of National Human Rights
Commission. Though, the Protection ofHuman Rights Act provides for the subject matters to

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be dealt withexclusively by the National or State Commissions, in practice these divisionsare

rarely adhered to. In effect, the complainant is free to seek redress fromthe National or State
Commission irrespective of the subject matter of hiscomplaint. The only restriction is that
once either of the Commission takescognizance of a case, the other commission must hand
over the case to thatCommission and close it, at its own end.
The ideal remedy would be the establishment of a hierarchical relationwhereby, cases
reach the National Human Rights Commission after havingbeen dealt with by the State
Commission or alternatively, theimplementation of the subject division format whereby the
Commission havea clear demarcation of issues to be considered by each. For this purpose,
theNational Human Rights Commission has been actively advocating for thesetting up of
State Commissions in all States.
Following the appeals by the NHRC and discussions with it so far,some States have
set up State Human Rights Commissions which include,Assam, Andhra Pradesh,
Chhatisgarh, Himachal Pradesh, Jammu &Kashmir, Kerala, Madhya Pradesh, Maharastra,
Manipur, Punjab, Rajastan,Tamil Nadu, UtterPradesh, West Bengal.
Most of the states are yet to constitute State Human RightsCommissions. Therefore,
all the complaints of human rights violations arebeing referred to the NHRC. In India,
because of its size, territory-wise aswell as population-wise, it is difficult for any single
institution to meet thegrowing demand of the protection of human rights of all persons,
especiallyin the context of increasing violations of human rights. Thus, there is a workload
on the part of NHRC regarding the receiving of complaints hasincreased beyond proportion.
Therefore, it is the need of the hour that everyState must constitute its own Human Rights
Commission so as to providespeedy justice to the people and to protect them from the
violation of theirhuman rights.
HUMAN RIGHTS COURTS AT DISTRICT LEVEL:
Prior to enactment of the Protection of Human Rights Act, throughwhich the NHRC
has been established, most of the human rights violationswere to be redressed either by the
Supreme Court under Article 32 or by theHigh Courts under Article 226 of the Constitution

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of India through their writjurisdiction. The remedy provided under the Constitution is
expensive andbeyond the reach of common man. But now, with the establishment of Human
Rights Courts at District level, a laudable attempt has been made tobring justice within the
reach of common man.
Sec. 30 of the PHRA which provides for the establishment of HumanRights Courts at
District level is as follows:For the purpose of providing speedy trial of offences arising out
ofviolation of human rights, the State Government may, with the concurrenceof the Chief
Justice of the High Court, by notification, specify for eachDistrict a Court of Session to be a
Human Rights Court to try the saidoffences;
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 otherlaw for the
time being in force.
In pursuance of the power given in Sec. 30, some of the StateGovernments have
notified the establishment of Human Rights Courts atDistrict level in their States. The
provisions contained in this section arevery weak, for it uses the word ‘may’ which indicates
that it is notmandatory for the State Governments to establish Human Rights Courts
atDistrict level. That’s why only few States, i.e. Andhra Pradesh, Assam,Tamil Nadu, Sikkim
have established Human Rights Courts and recentlyUttar Pradesh has also notified the
establishment of such courts.
In fact, in some of the States where the Human Rights Courts arebeing established,
the jurisdiction of such courts and procedure to beadopted, while dealing with the petitions of
violation of human rights has notbeen expressly specified. Therefore, the non-availability of
any clear cutjurisdiction and procedure regarding these courts while dealing withviolation of
human rights is making these courts ineffective.
The very fact that, the majority of the States have not yet establishedthe Human
Rights Courts in their States even after the lapse of more than tenyears from the date of
commencement of the Protection of Human RightsAct, which shows the States casual
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Further, if the assumption is that the powers of these courts whiledealing with the
cases involving violation of human rights will be same asthat of Supreme Court or of High
Courts, under Articles 32 and 226 of theConstitution of India respectively. It is also not clear
whether these Courtscan hear the petition brought before them by the complainant or will
dulyhear those cases which have been directed by the National or State HumanRights
Commission to these Courts for prosecution.
Therefore, the repent provision under Section 30 of the PHRA isinadequate, defective
and requires modification without which, HumanRights Courts at the District level, even if
formed, cannot function properlyand effectively. The National Human Rights Commission
has recommendedin its Annual Reports repeatedly an amendment to Section 30 so as
toimpose mandatory obligation on every State to establish Human RightsCourts at District
level properly defining their jurisdiction and the procedureto be followed in dealing with the
human rights cases.

WORKING OF THE HUMAN RIGHTS COMMISSION:

The NHRC at New Delhi and several of the State Human RightsCommissions started
on their sensitive task with great enthusiasm. To setright some of the inadequacies of the law,
a seven Member AdvisoryCommittee was set up by the National Human Rights Commission
headedby the former Chief Justice of the Supreme Court of India Justice A.M.
Ahmadi and this Committee made the following significantrecommendations for the effective
functioning of the NHRC ANDSHRC’s:39
a) The NHRC and the SHRC’s should be granted financial autonomyto facilitate
more effective functioning.
b) The composition of the NHRC should be changed to consist of twojudicial and
three non-judicial members, one of whom should be awoman.
c) The definition of ‘Armed Forces’ should be changed to bringhuman rights
violations by Para-Military personnel under thepurview of the NHRC.
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d) The NHRC and the SHRC’s should be further empowered toenquire into any
matter after the expiry of one year from the datewhen the Act constituting violation of human
rights is alleged tohave been committed, if there is sufficient reason for not filing
thecomplaint within the said period. At present, the NHRC caninvestigate human rights
violations only within one year of theiroccurrence.
e) The recommendations of the NHRC ‘must receive proper faithfuland time-bound
consideration’ by the Central and StateGovernments, which should intimate, within three
months,acceptance or otherwise of their recommendations and submitreasons in case of non-
acceptance.
Regarding the work and effectiveness of the NHRC, it should beundoubtedly
acknowledged that the work has been both qualitatively andquantitatively at a high level. The
fact that the number of complaintsreaching the Commission doubled and trebled year after
year shows that thepeople started looking at NHRC as an effective institution for the
promotionand protection of human rights.
During the last few years, the NHRC has laid emphasis on theEconomic, Social and
Cultural Rights, along with Civil and Political Rightson the premise that all rights are inter-
related and inter-dependent. Apartfrom the working for the eradication of bonded labour and
child labour,rights of the women, dalits, minorities and other marginalized groups,
theCommission has also undertaken projects in other fields, such as publichealth, right to
food etc, workshops and seminars on HIV/AIDS, nutritionaldeficiencies, access to health
care, tobacco control, etc., have beenconducted, yielding useful recommendations for
implementation by theGovernment. The Commission has been engaged in prison and penal
reformsand training of personnel to sensitize them to human rights.
It is also to be noted that the Commission has vigorously undertakenthe issue of
protection of civil liberties and has proposed systematic reformsin the police, prisons and
criminal justice system. The Commission hasintervened in a case on police reforms pending
before the Supreme Court.

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The Indian experience has already established the importance andpre-eminence of the
NHRC in its complementary role to the Judiciary inareas concerning human rights. The
NHRC has also been coordinating thecommendable work being done by many NGO’s in the
field of humanrights, particularly to that of improving prison administration and
penalreforms. Thus, the NHRC can and does play an important role incoordinating and
monitoring efforts of both civic and public bodies and Agencies.
It is also to be noted that in 2004-2005, the Commission in 45 cases,recommended
interim relief under Sec. 18(3) of the Act, to the extent of Rs.23,27,000/-. Since 1993, the
Commission has recommended more than Rs.10 corers by way of interim relief in 632
cases.The role of the NHRC and the impact of its intervention is too wellknown to require
elaboration. The Commission’s intervention did help tobuild confidence among different
sections of the plural society, which isessential in an inclusive democracy. The true role and
efficacy of theCommission has to be appreciated which is to facilitate human governance.
The nation’s commitment to human rights is judged in the internationalcommunity
from the support the Government gives to the institution set upfor promotion and protection
of human rights.
FUNCTIONS OF NATIONAL HUMAN RIGHTS COMMISSION: AN
ASSESSMENT
Today, we are witnessing some kind of an incremental growth in thehuman rights
movement all over the world. Since the NHRC came intobeing, during the last few years, it
has focussed to a fairer extent on violationof human rights by the organs of the State, the
Police, and the Paramilitaryforces. The better capacity of the NHRC to directly monitor the
performanceof institutions in certain situations, has been utilised by the Supreme Court toaid
its function of issuing directions in appropriate cases like mental homes,protective homes,
child labour, bonded labour, etc., The complementaritiesbetween these institutions has
considerably improved the mechanism for theprotection of human rights in the country,
which is primarily a State responsibility.

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The nature and extent of State’s responsibility for the protection ofhuman rights was
indicated by the NHRC in its orders, made in the case ofrecent Gujarat communal
disturbances. The Commission observed: “It isthe primary and inescapable responsibility of
the State to protect the right tolife, liberty, equality and dignity of all of those who, constitute
it. It is alsothe responsibility of the State to ensure that such rights are not violatedeither
through overt acts, or through abetment or negligence. It is a clear andemerging principle of
human rights jurisprudence that the State isresponsible not only for the acts of its own agents,
but also for the acts ofnon-state players acting within its jurisdiction. The State is, in
addition,responsible for any inaction that may cause or facilitate the violation ofhuman
rights”.
On this basis, the Government was held accountable on the principleof res ipsa
loquitor; and on its failure to satisfactorily discharge the burdenof proving performance of its
duty, the NHRC found the Governmentresponsible for the violation of human rights within
its jurisdiction. State ofGujarat illustrates the importance of the NHRC in enforcing
accountability;and the efficacy of the complementary between the Supreme Court and
theNHRC, which has developed over the years, in the protection andenforcement of human
rights.
Believing firmly in the value of Indian secularism and deeply movedby any incident
of religious intolerance and resulting violence anywhere, theCommission acted swiftly and
steadfastly. In the recent outbreak of violencein State of Gujarat, the Commission taking suo-
moto cognizance of newreports of the communal flare up and alleged inaction by the police
and otherhigh functionaries of the State, issued notices to the Chief Secretary andDirector
General of Police of the State calling for detailed report about themeasures being taken, and
in contemplation to prevent any further escalationof the situation in the State.
The Commission decided that Verma J.S., former Chairperson of theNational Human
Rights Commission, along with the senior officials of theCommission pay a visit to the State
to develop an, on the spot understandingof the situation. Such engagements and involvements
of the Commission areimportant not only for ensuring accountability and efficiency of

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theadministration but also to build confidence and accommodation amongst thedifferent

sections of the plural society. Such engagement provides strategicand moral support to those
working for ensuring tolerance and respect for human rights. The promptness with which the
administration responded tothe NHRC’s observations and recommendations for Gujarat is an
index ofthe efficacy and utility of the institution in improving the quality ofgovernance.
A number of precise recommendations have been made by theCommission to bring
the justice to those responsible for the violations of therights that have occurred and to
ameliorate the suffering of those, who arethe victims. The Gujarat example illustrates the role
of independent theNational Human Rights Institutions in enforcing accountability. Though
theprotection of human rights is the primary responsibility of the judiciary, the
NHRC of India and the judiciary in India have worked in wayscomplementing each other in
securing and enforcing accountability.
Intervention by the NHRC is a strategic use of inviting judicial powerto the aid of the
Commissions Agenda of protecting and promoting humanrights. The Commission also took
up with the police administration thesetting up of a police complaints authority in the office
of the DirectorGeneral of Police in each State, in order to have a general oversight of
theconduct of the police officials. The Commission has given its seriousattention in
improving the conditions prevailing in the jails. TheCommission has been insisting that the
State Government should effectivelyimplement the Supreme Courts judgement which laid
down the guidelinesand gave directions in regard to release of under-trial prisoners on bail,
as themajority of them are from disadvantages sections of society, having ruralbackground.
The Commission has taken the issue of custodial violence seriously. Itfirmly believes that, all
cases of custodial deaths, rapes, etc., including thoseinvolving the army and para-military
forces should be reported to theCommission as early as on 14th December, 1993, issued
instructions allStates asking them to direct all District Magistrates and Supertendants
ofPolice to report directly to the Commission on any instance of death or rapein police
custody within 24 hours of its occurrence, failing which, therewould be a presumption that

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efforts were being made to suppress the truth.It reflects the credibility and force for the
directives that the States havecontinued to comply with these instructions.
It is pertinent to note that the Commission did not remain silent in thewake of
miseries, torture and deprivation caused by natural calamity inrecent years in which
thousands of lives were lost, many others becamehandicapped lost their property and became
shelter less. In order to ensurethat the rights of affected population, particularly the most
vulnerablegroups were protect in the aftermath of the widespread destruction caused by the
Orissa Super Cyclone in October, 1999, the Commission took suo-motocognizance of the
situation and based on the spot study, by its own officialsmade number of recommendations
to the State Government to ensure thatthe human rights of marginalized groups, widow and
orphans, the destitute,dalits and tribals were not ignored, but kept in the centre of the focus of
allinvolved. Again the Commission took suo-moto cognizance of calamityarising from the
devastating earthquake in January, 2001 which hit largeareas of State of Gujarat.
The Court has described the Commission as ‘a unique expert body initself.
Fundamental rights guaranteed by the Constitution represent thebasic human rights possessed
by every human being. The jurisdiction of theSupreme Court under Article 32 ‘cannot be
curtailed by any Statutorylimitation’ including those contained in the various provisions of
NationalHuman Rights Commission Act. The court has emphasised that allauthorities in the
country are bound by the directions of the Supreme Courtand have to act in aid of the court
(Article 144).
In addition to above, the Commission has also been involved inguiding policy
formulation on issues of national importance. It hasrecommended a major policy approach on
issue of HIV/AIDS. The policyapproach has been evolved after a very wide national
consultation spreadover a time of more than two years and involving expertise drawn
frommedical and health profession, health workers, NGO’s and human rightsactivists
engaged on health issues, academics and others concerned.
Expanding non-governmental organisation movement on issues ofhuman rights has
also come to the support and aid of the Commissionsendeavours. NGO’s are the ears and

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eyes of the Commission and no field ofCommission’s activity remains insulated from
NGO’s, Ties with NGO’shave continued to expand all over the country, in fields as varied as
mattersrelating human rights complaints, to human rights education, research,counselling and
practical programmes for groups whose human rights werein jeopardy or needing promotion
and protection. It has also worked towardsnetworking of the NGO’s to make their role
efficacious. The support of thecivil society has been the most important source of strength of
the judiciaryand the NHRC, and this due to the faith of the Indian citizenry in
theseinstitutions.
The Commission believing in importance and significance of humanrights education,
believing that the education in human rights is the key topromote a culture of human rights,
has encouraged various educationalagencies such as NCERT, NCTE, UGC, Universities and
Colleges to bringin human rights education in the curriculum agenda and the life
ofeducational institutions.

THE ROLE OF NON-GOVERNMENT ORGANISATIONS IN THE

PROTECTION OF HUMAN RIGHTS:
No study of human rights in independent India can complete withoutspecific mention
of the role of the Non-Government Organization’s (hereinafter referrers as NGO’s) in
exposing instances of human rights violation forsuitable action by the Government. Since the
end of the Second World Warand most especially since the end of the 1970’s, there has been
an explosiveemergence of local, national and international voluntary organizationsworking
for the promotion and protection of human rights on every continentand in almost every
country in the world. These NGO’s vary enormously intheir membership, leadership and
purposes, in the scope of their activitiesand programmes and in the influence or impact they
have in domestic,regional or international arenas.
Now a days, there is a wide range of NGO’s working in India invarious fields relating
to human rights, specifically in the field of childwelfare, environment, bonded labour,
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women rights, health, disabled rights,education, labour welfare, welfare of indigenous people
and therehabilitation of manual scavengers. Besides the groups which arespecifically
involved to respond to the lawlessness of the State, there arehundreds of groups struggling
for distributive justice. There are alsoadvocacy and support groups.
The exceptional role of Non-Governmental Organisations in furtheringhuman rights
is given appropriate and special recognition in the Protection ofHuman Rights Act, 1993.
Sec. 12 (i) of the said Act, expressly charges theCommission to ‘encourage the efforts of
non-governmental organisationsand institution as working in the field of human rights’. This
is aresponsibility which the Commission readily assumes, for the cause hasmuch to gain both
from the practical help and from the constructivecriticisms that NGO’s and the Commission
can bring to bear in their mutualinteraction and growing relationship.
There are many ways in which the relationship of the National HumanRights
Commission with NGO’s can be further strengthened. As theCommission increasingly
begins to concentrate on specific human rightsproblems i.e. child labour or bonded labour, it
is normal that it should turn toNGO’s having specialised knowledge in such fields. The
Commission hasalready had the benefit of interacting with a large number of NGO’s,
bothIndian and foreign, certain of them have brought complaints that are underconsideration
by the Commission. Yet others have helped the Commissionby their reports and publication
and by their vigilance in the defence ofhuman rights.
In the development of the working relationship, the Commission isparticularly
grateful to NGO’s for coming forward with complaintsregarding the violations of human
rights. Analysis of the complaintsreceived by the Commission indicates that over 200 NGO’s
were involved inthe submission of such complaints which were received from all parts of
thecountry. The Commission would like to further rationalise and expand itsarrangements of
co-operation with NGO’s. It firmly believes that thepromotion and protection of human
rights require the courage andcommitment that NGO’s bring to their endeavours and it is for
this reasonthat the Commission has consistently taken the position that the country hasmuch
to gain by encouraging their efforts, whether the NGO’s be national or foreign.

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Frequently, the NGO’s provided the impetus for the Commission’sefforts in regard to
the special problems of dalits, tribals, child labour, childprostitution, the conditions of
refugees and other vulnerable groups. Theissue of jail reforms, too, attracted major NGO
participation, as did theirconcern with issues of human rights areas of insurgency or
terrorism. Thework of Non-Governmental Organisations is central to the spread of
humanrights awareness and the articulation and the defence of human rights.
Indeed, the efforts of NGO’s and the Commission are complementary, in
arelationship that is at once both constructive and critical. No field of activity of the
Commission now remains insulated fromNGO’s, whose advice has also been sought on ways
to make theCommission more effective. The Commission receives number of publicinterest
complaints from NGO’s and they have often been associated withaspects of investigations
undertaken by the Commission. Further, in respectof projects and programmes, the list grows
of NGO’s working closely withthe Commission, particularly in respect of serious societal
issues relating,inter alia, to matters such as child labour, bonded labour, child
prostitution,literacy and human rights education, health care, malnutrition, the rights
ofwomen, and of vulnerable and marginalised groups, the problems of Dalitsand Tribals.
The major problem with the Indian NGO’s is that there is a lack of coordinationof
their activities in terms of their fields, territorial areas andtarget groups. Hence, to co-ordinate
and channelize the efforts of NGO’sworking in the field of human rights and to make known
their contribution tothe outside world, the National Human Rights Commission has compiled
aNational Register of NGO’s working in human rights area.
To encourage the efforts of NGO’s, working in the field of humanrights is a statutory
responsibility of the Commission. The promotion ofprotection of human rights cannot
possibly gather the momentum it requireswithout the fullest co-operation between the
Commission and NGO’s.NGO’s are closely involved with the Commission through the
complaintsthey submit to it and through seminars and workshops in human rightsrelated
matters.
THE FUNCTION OF NGO’S IN THE HUMAN RIGHTS:

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NGO’s in the human rights arena perform a wide variety of functions.These will vary
with the differing political, social, economic and culturalsituation in which NGO’s find
themselves. The strategies and tactics theNGO’s will employ, will be different from the
issues of NGO’s in situationof intense political repression, or of NGO’s in the third world
countriesfacing such multiple crisis as famine, ecological degradation, foreign debt,ethnic
violence, lawlessness and corruption.
Information Gathering, Evaluation and Dissemination:
One of the most important functions performed by NGO’s engaged inhuman rights
work is that of monitoring the behavior of the State and ofother power elites of gathering,
evaluating and dissemination of information.
In the process of exposing human rights violation, the importance ofinformation
emerges in part from the paradox that is central to the humanrights struggle.In the recent
years, the information or fact-finding function of NGO’shas under serious scrutiny,
especially from the Governments charge withcommitting violations and from their
supporters. As a consequence, many inthe human rights community have been sensitized to
the need for their data,to pass tests of validity and reliability. NGO’s have monitored the
behaviour of armed opposition or terrorists.
Finally, with respect to information, it is important to recognize thatoften in a better
position than Government agencies both to collect and toassess information with respect to
the observance of economic, social andcultural are critical preconditions for effective action
in the area of humanrights to have a policy impact that information needs to be discriminated.
Advocacy to stop Abuses and Secure Redress:
Advocacy means actively taking up the case of those, whose rights areviolated. For a
human rights organization, advocacy may speaking out forthe voiceless and it entails
expanding and making more visible what may beonly a blatant conflict.
Legal Aid, Scientific Expertise and Humanitarian Assistance:
Organization concerned with human rights has also been engaged in abroad range of
activities which can be grouped under the heading ofhumanitarian assistance. This may
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involve sending food, clothes or readingmaterial to political prisoners, extending material to

aid to the families ofsuch prisoners providing emergency relief to refugees and
internallydisplaced persons, providing shelter for the homeless for street children.
More generally, physicians and other health workers have providedtreatment to
torture victims. They have investigated the medicalconsequences of the use of tear gas and
plastic bullets and they haveconducted research into the health impact of disasters such as
Bhopal and Chernobyl.
Keeping open the Political System:
On the whole, human rights NGO’s are not mass based organization.Human Rights
NGO’s are very much involved in political struggle in asmuch as the struggle for human
rights, struggle about power and its control.
The human rights organization is different because its purpose is largely tokeep the
political process open and to keep the Government accountable sothat the power is not
inordinately centralized or abused.
Building Solidarity:
NGO’s and People’s organization on the front line in human rightsstruggle are often
both highly vulnerable and highly isolated. Buildingsolidarity across the different sectors of
society between workers andpeasants, women organization, organizations of indigenous
peoples andacross ethnic and religious groups is a task taken on, by much
organizationworking in the human rights arena. In heterogeneous societies, many
NGO’srecognize that change will come only by a radical restricting of the socialorder.
Hence, efforts are directed towards information sharing andnetworking as a first step by such
creating solidarity.
Education, Concretization or Empowerment:
NGO’s have come to realize that people cannot defend their rightsunless they know
their rights. It is increasingly felt that human rights canplay a significant role in the
empowerment of the impoverished. Theeducational efforts that engage NGO’s in the human
rights area, tend to be atthe non-formal level, rather than the formal school setting and
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involveconsultations, workshops and seminars and training courses for women,trade unionist,
peasants, and the indigenous or church people. Newmethodologies have been developed,
especially for reaching the illiterate,including street theatre, comic books, film poster
competitions, folk music.
In case of repression cases, it is possible to consider long-rangeobjectives, education,
conscientization and empowerment move to a priorityposition in the human rights agenda as
the best hope for the future.
Legislation to Incorporate or Develop Human Rights Standards:
At the International and regional level, the burden of legislativedrafting has fallen to
international human rights NGO’s which have beenplaying an increasingly important in this
area. The NGO’s are often engagedin drafting legislative proposals, preparing position
papers on pendinglegislation and testifying before Parliamentary or other
GovernmentCommittees. Today, NGO’s working groups closely follow the drafting ofnew
international human rights, legislation- treaties, declaration, andguidelines and make major
inputs into the process. They plan an equallyimportant role in identifying defining new issues
and areas requiring thelegislation.
Lobbying National and International Authorities:
Within the International Organizational context, NGO’s will lobbyexpert members of
key human rights bodies, or governments, or officials ofthe organization in order to get the
votes necessary to pass a resolution, havean item inscribed into the agenda, establish a
rapporteur, or commit theorganization to a pro-human rights course of action. Yet, the human
rightsstruggle is clearly a political struggle and there is nothing inherently wrongwith the
human rights NGO supporting or opposing specific policies onhuman rights
grounds.Predisposed to utilize democratic tactics and strategies, many nationalNGO’s
concerned with human rights have become as professional as otherprivate interest groups in
lobbying within their own country. Some have alsolearned how to take their case to
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Rights Committee,the UN Commission on Human Rights, its Sub- Commission, or the Sub-
Commission’s Working Groups on Indigenous Populations or on Slavery.
Individuals and Organizations have learned how to petition within regionalarenas
before the European Commission or Court of Human Rights, theInter-American Human
Rights Commission or Court or the AfricanCommission on Human and People’s Rights.
Amnesty International:
The London-based Amnesty International has been playing animportant role in
monitoring the implementation of human rights in differentcountries of the world. In its first
annual report published countries of theyear 1972-73, the Amnesty International drew the
attention of the IndianGovernment towards the detention of 17,000 people under prevention
inWest Bengal and sought their release.
It is to be noted that the large-scale arrests during the NationalEmergency imposed on
20th June 1975, of members of all opposition partiesin India, was the most significant event
of the post-independence period ofIndian history. On 27th June, 1975, the AI made public
appeal to the IndianPrime Minister to free all political prisoners arrested under MISA. After
1980, the AI showed its deep concern about the deaths of peoplein police or jail custody, by
writing to the Chief Ministers of the States ofKarnataka, Madhya Pradesh., Uttar Pradesh and
West Bengal where suchincidents of human rights were mostly noticed. The imposition of
theNational Security Ordinance on 23rd September, 1980 was objected by AIon grounds that
it was opposed to the fundamental and legal safeguards aslaid down in the Universal
Declaration and the Covenant on Civil andPolitical Rights.
While the 1981 report of Amnesty International drew attention towardsthe killing of
sympathizers of the Naxalites in encounters in Tamil Nadu andthe main stories in the next
few reports were related to the detentions andkillings of Punjab Sikhs and Akali Dal leaders.
In some subsequent reports,the AI attacked the amended National Security Act, which
allowed detentionwithout trail, the Terrorist And Disruptive (Prevention) Act, 1985
andunlawful killings and fake encounters by the police and security forces,referred to by AI
as “extrajudicial executions”.

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Human Rights Watch:

Human Rights Watch began in 1978 with the founding of its Helsinkidivision. Today
it has many divisions covering a major part of the globe, inthe continent of Africa, the
America, Asia, the Middle East as well as thesignatories of the Helsinki accord. It is an
independent, non-governmentalorganization supported by contributions from private
individuals andfoundations worldwide. It has its offices in New York, Washington,
LosAngeles, London, Brussels, Moscow, Dushanbe, Rio de Janeiro and HongKong.
Human Rights Watch conducts regular systematic investigations ofhuman rights
abuses in some seventy countries of the world including India.Its latest report on women’s
human rights violations for the period 1990-1995 contains the work of research done by staff
members and consultationsaround the world. This report contains an account of cases of rape
committedin Jammu and Kashmir by the Armed Forces as well as Armed Militants. Asper
this report, ‘rape has been used as a weapon to punish, intimidate, coerce, humiliate and
degrade.
The increase in reports of rapes by militant groups in Kashmir hascoincided with the
rise in violent crimes against civilians by these groups.The extremist militant groups seeking
to enforce the ‘Islamic CodeBehavior’ have launched other violent attacks on women.
Despite the enormous diversity among NGO’s working for thepromotion and
protection of human rights in the Commonwealth and thedespite the radically different
situations they confront-modem industrialsociety verses third world poverty, stable
democracy verses military rule,peace verses civil strife- it is nonetheless possible to
generalize to someextent about the problems they face. These problems can be clustered
underas survival relevance, legitimacy and efficiency.

***

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UNIT VII
INTERNATIONAL HUMANITARIAN LAW
DEFINITION AND MEANING
International Humanitarian Law is a branch of law of nations orinternational law.
That law governs relations between members of theinternational community, namely states.
International law is supranationaland its fundamental rules are binding on all states. Their
goals are tomaintain peace, to protect human being in a just order, and to promote
socialprogress in order and to promote social progress in freedom.
International Humanitarian Law is also called the law of armed conflictand
previously known as the law of war. International humanitarian lawseeks to mitigate the
effects of war, first in that it limits the choice of meansand methods of conducting military
operations and secondly in that itobliges the belligerent to spare persons who do not or no
longer participatein hostile actions.
The expression ‘International Humanitarian Law’ applicable in armedconflict means
international rules established and developed by customs andtreaties, which are specifically
intended to solve humanitarian problemsdirectly arising from international or non-
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international armed conflict to usethe methods and means of warfare of their choice or
protected persons andproperty that are, or may be, affected by conflict”
International Humanitarian Law (IHL), often referred to as the lawsof war, the laws
and customs of war or the law of armed conflict, is the legalcorpus "comprised of the Geneva
Conventions and the Hague Conventions,as well as subsequent treaties, case law, and
customary international law." Itdefines the conduct and responsibilities of belligerent nations,
neutralnations and individuals engaged in warfare, in relation to each other and toprotected
persons, usually meaning civilians.
International Humanitarian Law can be defined as “the human rightscomponent of the
law of war” in other words, it is the branch of humanrights law which applies in international
armed conflict and in certaincircumstances it applies even to international armed conflicts.
Theinternational humanitarian law is much older than international human rightlaw.
Humanitarian law is that considerable portion of international lawwhich is inspired by
the feeling for humanity and is cantered on theprotection of the individual in time of war.
The term ‘humanitarian law’combines two ideas of different natures, one legal and the other
moral, andmore specifically, of humanitarian concern.
ORIGIN AND DEVELOPMENT OF HUMANITARIAN LAW IN INDIA
The laws of war are as old as war itself and war is as old as life an earth.In the west,
there is a saying “love thy neighbour as thyself’. If you follow thisteaching, you will not fight
with your neighbour. In India there is a sayingvasudev kutumbakam. It is profound
statement. It forms part of philosophy ofour people. Our people lived by this idea. How can
you fight if the whole worldis your family! It is for this reason that we do not like to wage
war until thesame is thrust upon us.
Humanitarian Law in Ancient India
Humanitarian raised the laws of warfare in ancient India to such a highlevel that the
distance of centuries vanished in the mist of time. Whilehumanitarianism contributed to the
high order of interstate relations andinternational customs, chivalry ennobled the ideal of

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warfare and its practice ingeneral conformed to that lofty ideal. Humanitarianism of the law
regulatingwars in ancient India has been succinctly explained by Prof. Basham:
“For ( the more orthodox texts), the major motive of war isglory, not gain. War is not
merely a mean to an end, but part ofthe warrior’s dharma & good for its own sake... Rules
offairfighting are laid down. For the later sources, such as manu, abattle was ideally a
gigantic tournament with many rules...Homage and not annexation was the right fruit of
victory... ”... the chivalrous rules of war, probably based on very oldtradition, and codified
in their present form among the martialpeople of western India in post-Mawyan times, must
have hadsome effect of mitigating the harshness of war for combatantsand non-combatants
alike. It is doubtful if any other civilizationset such humane ideals of warfare. ”
Ancient scriptures like Ramayana and Mahabharta tells us that allpossible efforts
were made first to avert the war until it became apparent thatthe waging of war until it
became apparent that the waging of war was the onlysolution for the protection and
preservation of Dharma. These scriptures laydown the code of conduct for fighting wars,
which were scrupulously followedby the warriors. Some of the rules in the said wars were as
follows
a) The principle of avoiding unnecessary suffering and damage than whatwas
absolutely essential for the purpose of over powering the enemywas rejected.
b) Wars were fought only between sunrise and sunset and that too, aftergiving proper
ultimatum to the other party.
c) The civilian population, women and children were neither attackednor taken into
custody.
d) Unarmed soldiers, even kings and commanders, when disarmed werenot physically
attacked.
e) The prisoner of war and injured persons were treated humanely.
f) The dead bodies of the enemy’s forces were respected and crematedaccording to
appropriate rules.

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The ancient Indians made a distinction between military objects thatcould be the
target of attack and non-military objects that could not be attacked.Places of religious
worship, houses belonging to persons who were notparticipating in the war or property that
was not in the possession of armedforces could not be attacked or destroyed, in accordance
with recognizedcustoms and spiritual texts. Warfare was, as a rule, confined to combatants.
Consequently, the objects of attacks were the armed forces wherever theyexisted and
neither city while the armed forces were marching through.Dharmayudha, the Hindu
conceptualization of “just war”, was,according to the Agni Purana, to leave the fruit and
flower gardens, temples,and other places of worship unmolested.
Magasthenes, the Greek ambassador of Seleucus Nicator at the court ofChandragupta
Maurya at Patliputra, chronicled:
“ Whereas among other nations it is usual, in the contests ofwar, to ravage the soil,
and thus reduce it to an uncultivatedwaste, among Indians on the contrary, by whom
husbandmenare regarded as a class that is scared and inviolable, the tillersof the soil, even
the battle for the combatants of either side inwaging the conflict make carnage of each
other but allow thoseengaged in husbandry to remain qidte unmolested. Besides,they
neither ravage an enemy’s land with fire, nor cut down intree. ”
Later, Hiuen Tsang recorded: “petty rivalries and war was notinfrequent, but they did
little harm to the country at large”.
The distinction made between civilian and belligerents bears a surprisingsimilarity to
article 48, 51(1), and 52(1 and 3) of Additional Protocol I. Theancient Hindus recognized the
distinction made between combatants and non-combatantsin modem humanitarian law.
Those who were incapable ofprotecting themselves or who were incapacitated were to be
spared. Inprohibiting killing in the following cases, Manu recognized the
contemporaryconcept of hors de combat:
“Let him not strike one who (in fight) has climbed on aneminence, nor a eunuch, nor
one who joins the palms of hishands (in supplication), nor one who (flees) with flying
hair,nor one who sit down, nor one who says ‘ I am thine ”

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“ Nor one who sleeps, nor one who has lost his coat of mail,nor one who is naked,
nor one who is disarmed, nor one wholooks on without taking part in the fight, nor one who
is fightingwith another (foe); ”
“Nor one whose weapons are broken, nor one afflicted with(sorrow), nor one who
has been grievously wounded, nor onewho is in fear, nor one who has turned to flight. ”
According to Gautama it is sinful to kill:
“...those who have lost their horses, charioteers, or arms, thosewho join there hands
in (supplication), those who flee withflying hair, those who sit down with averted faces, those
whohave climbed (in flight) on eminences or trees, messengers, andthose who declare
themselves to be cows or Brahmanas, Vridha-Harita exempted spectator from killing.
“Sankha, Yajnavalkya’s commentator, states that one soldiershould not kill another
while the latter is drinking water, eatinghis meals, or taking off his shoes; nor should one kill
a woman,a female elephant, a charioteer, a bard, or a Bharman; norshould one is not a king
kill one who is a king. ”
Budhayana added:
“ Those who are in fear are intoxicated, insane or not of theirminds, (nor with those)
who have lost their armour, (not with),women, infants, aged men, and Brahmanas. ”
War according to the Mahabharta. was a manly sport in which a peoplewere eager to
display their prowess. The Dharma of the Kshatriya was to fightand maintain law and order.
War was to be waged according to the rules, fairlyand not deceitfully. Bhishma lays down
the principle of the fair fight:
“A Kshatriya must not put on armour for fighting a Kshatriyaunclad in mail. One
should fight one and abandon the opponentwhen the latter becomes disabled and to fight an
army clad inarmour by putting an armour... one should not on horsebackproceed against a
car warrior. A car warrior is to proceedagainst a car warrior. Neither poisoned nor barbed
arrowsshould be used. These are instruments of the wicked. Oneshould fight righteously
without yielding to wrath or beingfound of unnecessary slaughter. The righteous should
alwaysact righteously towards those who are righteous. Even he that iswicked should be

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subdued with fair means. It is better is to laydown life itself in observance of rightousness
than win victory by sinful means”.
Fair war was Samukha Yudha, which is to fight openly face-to-face andnot strike
from behind.In the early, pre-Vedic, period, when Indian society was organized intribal
communities, war between communities was “normal”, with no holds barred. Yet in many
parts of India, the process of war was divided into fivestages: 1. seizure of the enemy’s cattle;
2. mobilization for invasion; 3.bombardment of the enemy fortress; 4. actual fighting; and 5.
victory. Theseizure of cattle was an advance warning of an attack, and gave civilians andnon-
combatants time to seek shelter.
As society began to stabilize and became more and more politically andsocially
organized during the Vedic period, the Vedas, the Sastras and the epicsof Ramayana and
Mahabharata started prescribing or assuming the existence oflaws and customs of war. There
were two kinds of war: dharmayuddha (righteous war) and adharma yuddha (unrighteous
war). A righteouswar was fought for a righteous cause. Except for Kautilya’s prescriptions,
mostother early publicists recorded a general theoretical agreement on banningillegitimate
methods of warfare: “A war for righteous cause must berighteously conducted.” While the
idea of non-violence (ahimsa) is found inthe Scriptures, it was largely ignored, except for the
defiant, normativecontribution of Buddhism. Yet the impact of Buddhism was so great that
itconverted Emperor Ashoka (273-232 BC), the greatest king of his time, to thefaith of non-
violence. In Nehru’s words: “Unique among the victoriousmonarchs and captains in history,
he Ashoka decided to abandon warfare in the foil tide of victory.” But Ashoka remains an
exception to this day, althoughhis conduct offered the most powerful challenge to the moral
legitimacy of themany opportunistic rules of warfare propounded by Kautilya, his
grandfather’sstem mentor. In terms of humanitarian law, Ashoka represents the
earliestincarnation of the principle of non-use of force in international relations that isnow
enshrined in Article 2, paragraph 4, of the United Nations Charter.
Many ancient texts such as the Ramayana, the Mahabharata, the AgniPurana, and the
Manu-smrti embody a number of ethical precepts that emerged in ancient India. These

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precepts may be categorized according to fourprincipal aspects of armed conflict as we

identify them today:
1. Methods of warfare;
2. Means or weapons of war;
3. Treatment of persons hors de combat (i.e. those who, as woundedor as prisoners,
have been placed out of action); and
4. Treatment of civilians. The main requirements of some of theseprecepts are given
below.
Humanitarian Law in Medieval India
The annies of kings and commanders constantly followed the code ofconduct
followed by the forces of ancient kings in India. Regarding thetreatment meted out to POWs,
we have the classic example of king Poros,addressing Alexander “you should treat me in the
same way as a king treatsanother king”.
An example from Maratha history depicts how women were protectedduring armed
conflicts. In the year 1660, receiving an intelligence report thatthe Mugal subedar of kalian
was carrying the government treasure to Delhi,king Shivaji’s lieutenant attacked the subedar
and captured treasure. Thesubedar and his son and daughter-in-law were also taken in the
custody. All thecaptured persons were produced before shivaji. The lieutenant presented
toshivaji the daughter in law of the subedar as the ‘most valuable treasure’.Shivaji
appreciated the beauty of the young woman, but said ‘a lady is likemother to us\ In according
to Maratha custom, Shivaji presented a saree to the woman and she along with her husband
and the mugal subedar, was sent toDelhi under escort.
Another interesting event occurred in 1759 when a war being foughtbetween the
armies of Aurangzeb and Guru Gobind Singh at Anandpur Sahibin Punjab. Bhai kanhaiya
was deputed to serve water to the soldiers of Sikharmy. While doing so, bhai kanhaiya also
offered water to the wounded soldiersof the mugal army. Seeing this, some Sikh soldiers got
agitated and complainedto Guru Gobind Singh. They ever dubbed him as a traitor as he was
offer inwater to the wounded soldiers of enemy which enabled them to regain strengthand

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fight against the sikh army. When complaint was made to Guru GobindSingh, he asked that
kanhaiyya be produce before him. On being questioned byGuru Gobind Singh, bhai
kanhaiyya replied that “master, what can I do! I seeonly yon in every wounded soldiers”.
Guru Gobind Singh was pleased with thisreplay and not only allowed kanhaiyya to continue
serving water but also gavehim an ointment to ally on the wounds of injured soldiers without
anydiscrimination. A question arises in my mind; can there be a better example ofpractical
application of the humanitarian law in war! Indian history is repletewith such an example.
While the ancient traditions of Hinduism and Islam forbade thecommitting of
excesses during war, seldom were limits placed in actualpractice on methods and means of
warfare. The Hindu and Muslim versions ofthe just war doctrine were interpreted in a
partisan way to permit, nay evenmandate, total elimination of the non-believer. Invaders such
as Mahmud ofGhazni, Mohammad of Ghaur, Nader Shah of Persia, and Timur of
Samarkand(Tamerlane) invaded India mainly to plunder her riches, and therefore
theirmilitary campaigns were marked by senseless pillaging, looting, destructionand
slaughter. Ala-ud-Din Khalji’s incursions into southern India wereassociated with “the sack
of cities, the slaughter of the people and the plunder of temples”.
Such was the mood of those times. Yet their history also recordsdazzling instances of
chivalry. From the State practice of the Ranas of Chittoor,in Rajasthan, Nagendra Singh cites
some examples of the release of prisonersof war. In AD 1437, Maharana Kumbha of Chittoor
defeated Sultan MahmudKhilji and brought him captive to Chittoor. Khilji remained a
prisoner for sixmonths; thereafter he was set free without ransom. Again, Maharana
Sangadefeated Mahmud Khilji II, the King of Malwa and took him prisoner.Subsequently, he
set him free, “loaded him with gifts and reinstated him on thethrone”.
There were other instances as well. In AD 1526, when Ibrahim Lodi,Sultan of Delhi, was
defeated by Raja Ram Chand and made prisoner, the Rajahonoured him by seating him on
the throne. Nagendra Singh also notes another“well-known classic example” (one of the
“romantic anecdotes of Indianhistory”) of the conduct of the young Mughal emperor,
Humayun, soon afterthe historic Battle of Panipat in 1526. Sultan Ibrahim Lodi and

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Vikramajit, theruler of Gwalior, were killed in the battle. The wives and children of the
Rajaof Gwalior had been left in the Agra Fort and the Mughal army captured them.
Hearing of this, Prince Humayun intervened, treated them with courtesy,
andprotected them from their captors.Some treaties concluded at the end of a war contained
provisions relatingto the repatriation of prisoners of war. Nagendra Singh cites a treaty
betweenthe Sultanate of Bahmini and the Vijayanagara Empire in the south. Afterseveral
decades of war, the two kingdoms concluded a treaty in AD 1367whereby, “being
reproached by the ambassadors of Vijayanagara forindiscriminate massacre of Hindu women
and children, Muhammad Shah ‘tookoath, that he would not, hereafter, put to death a single
enemy after a victoryand would bind his successors to observe the same line of conduct’
From thattime onwards, “it has been the general custom in the Deccan to spare the livesof
prisoners in war and not to shed blood of an enemy’s unarmed subjects”.
Although it is doubtful if such was “the general custom in the Deccan”following the
treaty, the treaty represents an illustration, albeit rare, of themoral authority of humanitarian
law amidst the clash of arms.

Humanitarian Law in Modern India

Since its accession to independence, India has charted for itself anindependent foreign
policy. Jawaharlal Nehru, the architect of that policy,proclaimed a year before independence:
“We propose, as far as possible, to keep away from the powerpolitics of groups,
aligned against one another, which have ledin the past to world wars and which may again
lead to disasterof an even vaster scale. We believe that peace and freedom areindivisible and
the denial of freedom anywhere must endangerfreedom elsewhere and lead to conflict and
war”
Article 51 of the Constitution of India, 1950, enjoins the State to“endeavour to (a)
promote international peace and security; (b) maintain justand honourable relations between
nations; (c) foster respect for internationallaw and treaty obligations in the dealings of
organized peoples with oneanother”39Article 253 of the Constitution empowers the Indian

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Parliament toenact any law in order to implement any treaty or agreement to which India is
aparty, or even any decision of an international conference, notwithstandinganything
contained in the Constitution in respect of distribution of legislativecompetence between
Parliament and State (provincial) legislatures.
India became party to the 1949 Geneva Conventions for the Protectionof War Victims
in 1950 (it has not yet become party to the 1977 AdditionalProtocols), and incorporated them
into its statute book through the GenevaConventions Act, 1960. The Statement of Objects
and Reasons made by thegovernment while introducing the bill for this enactment explained
that theenactment was required because it was expected of India as a party to theConventions
to provide for:
• punishment of “grave breaches” referred to in Article 50 of the FirstGeneva
Convention and equivalent articles of the succeedingConventions;
• conferment of jurisdiction on our courts to try offences under theseConventions,
even v/hen committed by foreigners outside India;
• extension of the protection given under the existing law to the emblem ofthe red
cross and to the two other emblems, namely, the red crescent on awhite ground and the red
lion and sun on a white ground;
• procedural matters relating to legal representation, appeal, etc.
The Act is in five chapters. The first chapter deals with preliminariessuch as the title,
extent and commencement of the Act, and definitions. Itclarifies that the Act provides for
punishment of grave breaches of theConventions, committed by “any person” “within or
without India”. Thesecond chapter incorporates punishment of offenders committing
gravebreaches of the Conventions and the jurisdiction of courts to deal with thebreaches. The
punishment encompasses death or life imprisonment for wilfulkilling of a protected person,
and imprisonment for fourteen years for otheroffences. The Act specifies the level of civil
court (Chief MetropolitanMagistrate in Bombay, Madras or Calcutta, or a Court of Sessions
in otherplaces) to exercise jurisdiction under the Act. However, court-martialproceedings

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under the Army Act of 1950, Air Force Act of 1950 and the NavyAct of 1957 are explicitly
excluded from the application of the Act.
The third chapter provides for the procedure of trial of protected personsand certain
other persons, including the requirements of notice and legalrepresentation. The fourth
chapter seeks to protect the Red Cross and otheremblems from abuse and provides for
penalties there of.
The final chapter deals with matters like the cognizance of offencesunder the Act and
the power of the Government of India to make rules underthe Act. A crucial provision,
however, is section 17, which specifically forbidscourts to take cognizance of any offence
under the Act except on a complaintby the Government or of an officer duly authorized,
thereby preventing theapplication of the Act against the government or its agencies.
The Geneva Conventions Act does not seem to have been an adequatepiece of
legislation incorporating India’s international humanitarian law obligations into domestic
law. The Supreme Court of India clearly notedsome of the limitations of the Act in Rev.
Mons. Sebastiao Francisco Xavier dos Remedios Monteiro v The State of Goa as follows:
“To begin with, the Geneva Conventions Act gives no specificright to any one to
approach the court. The Act was passedunder Art. 253 of the Indian Constitution read with
entries 13and 14 of the Union List in the Seventh Schedule to implementthe agreement signed
and merely provides for certain mattersbased on Geneva Conventions. What method an
aggrievedparty must adopt to move the Municipal Court is not very clear.
“It will thus be seen that the Act by itself does not give anyspecial remedy. It does
give indirect protection by providing forpenalties for breaches of Conventions. The
Conventions are notmade enforceable by government against itself nor does the Actgive a
cause of action to any party for the enforcement ofConventions. Thus there is only an
obligation undertaken by theGovernment of India to respect the conventions regarding
thetreatment of civilian population but there is no right created infavour of protected persons
which the court has been asked toenforce. If there is no provision of law which the courts

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canenforce the court may be powerless and the court may have toleave the matter to what
Westlake aptly described as indignation of mankind. ”
The Supreme Court’s jurisprudence has, since 1977, undergone a seachange,inter alia
in matters of human rights or fundamental rights in thelanguage of the Indian Constitution: in
situations which reveal seriousinadequacies in the Indian law, the human rights provisions in
the Constitutionhave since then been interpreted and applied by the Court in harmony
withdevelopments in international law, without waiting for the legislature toformally amend
domestic law. The Constitution of India makes some of thefundamental rights available to
“all persons”, not merely to Indian nationals.
Thus in the Chakma Refugees cases44 the Supreme Court of India specificallyheld
that the Article 21 guarantee of the right to life and personal liberty isapplicable to foreigners
as well, and that the Indian State has an obligation toprotect the life and personal liberty of
even refugees if they have been admittedinto the Indian territory. As applied by the Indian
Supreme Court, Article 21encompasses the whole gamut of protection of the person and
dignity of anindividual and the reference to “personal liberty” covers most essentials of
criminal jurisprudence.
In the light of the human rights jurisprudence of the Indian judiciary,however, the
Geneva Conventions Act along with the rest of the armed forceslegislation referred to above
awaits revision.
While humanitarian law, in some shape or the other, formed part ofevery civilization
throughout the world, the two devastating world wars of the20th century gave a new
dimension to it by making it truly international so as toensure its acceptance and observation
by all the countries. India was one of thefirst six countries in the world to ratify the Geneva
Convention in the year 1950.
The Indo-Pak conflict in Kashmir- Immediately after the partition, theexplosive
situation in Kashmir developed into an Indo-Pak conflict where Indiahad shown adherence to
the principles of international humanitarian law whiledealing with wounded and sick soldiers
and POWs of Pakistan.

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The Goa operation- During the Goa operations in Dec. 1961, thePortuguese ship
Albukark was captured and the officers and sailors of the shipsurrendered to the Indian navy
and were taken POWs and were treated inaccordance with Geneva Convention till they were
repatriated to Portugal.
The Indo- Chinese conflict in 1962- In this conflict, the Indian red crosssociety in
active cooperation with Chinese red cross brought back 3211 POWsfrom china and also a
few dead bodies.
The Indo-Pak conflict of 1965- In this conflict, there were many POWson both sides
and organized relief camps as well various other facilities incooperation with the Red Cross
and ICRC for providing succour to thewounded and sick jawans.
The Indo-Pak conflict of 1971- In this conflict, India took custody ofapproximately
75,000 Pakistani soldiers who surrendered to the Indian armedforces. Approximately 16,000
civilians, including women and children alsosought the protection of our armed forces in
Bangladesh.
Kargil conflict- Kargil conflict was in fonn of proxy war declared bythe Pakistan in
kargil area of jammu and Kashmir. Dead Pakistani soldiers wereburied with fall honour by
Indian army and returned captured Pakistani soldiersto Pakistan. Pakistan reciprocates and
returned one Indian air force officer.India can be rightly proud of our traditional adherence to
internationalhumanitarian law and of our total commitment to them. Ours is a country
whereof law are paramount and the dignity of a human being is supreme.
There is, however, no doubt it is of utmost importance that all of us in generaland the
Indian soldier in particular should be fully aware of the humanitarianlaw so that the
international humanitarian law can be filly applied in the timeof any international incident in
future.
India has absorbed this spirit of farewell to arms and that is why from theBuddha to
Mahatma Gandhi, we find a humanitarian ethos in Indian culture.The Bandung spirit also
highlights in the 20th century what early Indian dharmahad taught. Jawaharlal Nehru stood
for anti- imperialism and human solidarity.

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He was one of architects of the Bandung conference. The declaration on

thepromotion of world peace and co-operation at Bandung is proof of the Indian
humanitarian culture. India is signatory to the Geneva conventions and has incorporated
thesame into the domestic law by enacting the Geneva Convention Act of 1960.
FUNDAMENTAL RULES OF HUMANITARIAN LAW APPLICABLE
IN ARMED CONFLICT:
1. Persons hors de combat and those who do not take a direct part in thehostilities are
entitled to respect for their lives and physical and moralintegrity. They shall in all
circumstances be protected and treatedhumanely without any adverse distinction.
2. It is forbidden to kill or injure an enemy who surrenders or who ishors de combat.
3. The wounded and sick shall be collected and cared for by the party tothe conflict
which has them in its power. Protection also coversmedical personnel, establishments,
transport and materiel. Theemblem of the Red Cross is the sign of such protection and must
berespected.
4. Captured combatants and civilians under the authority of an adverseparty are
entitled to respect for their lives, dignity, personal rights andconvictions. They shall be
protected against all acts of violence andreprisals. They shall have the right to correspond
with their familiesand to receive relief.
5. Everyone shall be entitled to benefit from fundamental judicialguarantees. No one
shall be held responsible for an act he has notcommitted. No one shall subject to physical and
mental torture,corporal punishment or cruel or degrading treatment.
6. Parties to a conflict and members of their armed forced do not havean unlimited
choice of methods and means of warfare. It is prohibitedto employ weapons or methods of
warfare of a nature to causeunnecessary losses or excessive suffering.
7. Parties to the conflict shall at all times distinguish between thecivilian population
and combatants in order to spare the civilianpersons shall be the object of attack. Attacks
shall be directed solely against military objective Contemporary international humanitarian
law is composed of: (A) acomplex set of conventional rules, (B) customary norms and (C)

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jus cogent,which the case law of the International Court of Justice helps to clarify
andinterpret.
Unity and complexity of treaties of International Humanitarian Law
The systematic codification and progressive development ofhumanitarian law has
been in general by multilateral treaties started relativelyearly when compared to other
branches of international law. Contemporaryhumanitarian law is the outcome of a long
normative process, whose moreimmediate origins date back to the late nineteenth century
with the movementtowards codification of the laws and customs of war. As a result,
internationalhumanitarian law is one of the most codified branches of international law.
This very substantial body of law is characterized by two sets of rules: the“Hague
Law”, whose provisions relate to limitations or prohibitions of specificmeans and methods of
warfare, and the “Geneva Law”, which is mainlyconcerned with the protection of victims of
armed conflicts, i.e. non-combatantsand those who do not or no longer take part in the
hostilities.
With the adoption of the Additional Protocols of 1977, which combine bothbranches
of international humanitarian law, that distinction is now mainlyhistorical and didactic?In its
Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons,
the International Court of Justice acknowledges inunequivocal terms the basic unity of
international humanitarian law. It makesdefinitively clear that this branch of international law
contains both the rulesrelating to the conduct of hostilities and those protecting persons in the
powerof the adverse party. By so doing, the Court retraces the historical evolution
ofhumanitarian law:
“The ‘laws and customs of war’ as they were traditionally calledwere the subject of
efforts at codification undertaken in The Hague(including the Conventions of 1899 and
1907), and were basedpartly upon the St. Petersburg Declaration of 1868 as well as
theresults of the Brussels Conference of1874. This ‘Hague Law’ fixedthe rights and duties of
belligerents in their conduct of operationsand limited the choice of methods and means of
injuring the enemyin an international armed conflict. One should add to this the‘Geneva

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Law’ (the Conventions of 1864, 1906, 1929 and 1949),which protects the victims of war and
aims to provide safeguardsfor disabled armed forces personnel and persons not taking part
inthe hostilities ”]
The Court concludes that:
“These two branches of the law applicable in armed conflict havebecome so closely
interrelated that they are considered to havegradually formed one single complex system,
known today asinternational humanitarian law. The provisions of the AdditionalProtocols of
1977 give expression and attest to the unity andcomplexity of that law”.
The underlying unity of international humanitarian law is grounded onthe basic
values of humanity shared by every civilization. As JudgeWeeramantry points out:
“Humanitarian law and custom have a very ancient lineage. Theyreach back
thousands of years. They were worked out in manycivilizations -Chinese, Indian, Greek,
Roman, Japanese, Islamic, modernEuropean, among others. Through the ages many
religious andphilosophical ideas have been poured into the mould in which
modernhumanitarian law has been formed. They represented the effort of thehuman
conscience to mitigate in some measure the brutalities anddreadful sufferings of war. In the
language of a notable declaration inthis regard (the St. Petersburg Declaration of 1868),
internationalhumanitarian law is designed to ‘conciliate the necessities of war with the laws
of humanity.
The numerous treaties of humanitarian law express the continuingconcern of the
international community to maintain and preserve fundamentalrules in the specific context of
armed conflicts, where the rule of law isparticularly threatened. According to the
International Court of Justice’s ownwords, the set of conventional applicable in time of
armed conflict is:
“Fundamental to the respect of the human person and ‘elementary considerations of
humanity”
The Court thereby underlines that the same fundamental ethical valuesare shared both
by humanitarian law and human rights law. Despite theirdifferent historical backgrounds and

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their own normative specificities, thecentral concern of both branches of international law is
human dignity.
They originate from the same source: the laws of humanity. In additionto
acknowledging this common conceptual framework, the Advisory Opinionon the Legality of
the Threat or Use of Nuclear Weapons also contributes to abetter understanding of the
interplay between treaties of humanitarian law andhuman rights law. Indeed, the Court
confirms the convergence andcomplementarily of human rights and humanitarian law and
recognizes thecontinuing applicability of human rights law in time of armed conflict:
“The Court observes that the protection of the InternationalCovenant of Civil and
Political Rights does not cease in times ofwar, except by operation of Article 4 of the
Covenant wherebycertain provisions may be derogated from in a time of nationalemergency.
Respect for the right to life [guaranteed under Article 6of the International Covenant] is not,
however, such a provision. Inprinciple, the right not arbitrarily to be deprived of one’s
lifeapplies also in hostilities. The test of what is an arbitrarydeprivation of life, however, then
falls to be determined by theapplicable lex specialis, namely, the law applicable in
armedconflict which is designed to regulate the conduct of hostilities.
Thus whether a particular loss of life, through the use of a certainweapon in warfare,
is to be considered an arbitrary deprivation oflife contrary to Article 6 of the Covenant, can
only be decided byreference to the law applicable in armed conflict and not deducedfrom the
terms of the Covenant itself ’’
Humanitarian law can therefore be regarded as a species of the broadergenus of
human rights law. This is not a distinction in terms of their intrinsicnature, but a distinction
based on the context of application of rules designed toprotect human beings in different
circumstances. Although in the present casethe right to life, as guaranteed in Article 6 of the
International Covenant onCivil and Political Rights, adds no substance to the existing
humanitarian law,the Court's recognition of the continuing applicability of human rights
treatiesin time of armed conflict is of considerable importance for two main reasons.

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At the substantive level, provisions of human rights treaties go beyondconventional

humanitarian law and fill some normative gaps, particularly in thecontext of non-
international armed conflict and internal strife. At theprocedural level, human rights treaties
contain sophisticated enforcementmechanisms that may supplement the more rudimentary
mechanisms for theimplementation of humanitarian law, mainly based on a preventive and
State oriented approach.
CONCEPT OF ARMED CONFLICTS:
Dr. Hans-Peter Gasser, Former Senior Legal Advisor at the InternationalCommittee
of the Red Cross, is Editor-in Chief of the International Revenue of the RedCross, viewed:
“International Humanitarian law is a special branch of law covering situations of
armedconflict. As is set forth in common Article 2 of the Geneva Conventions, the present
Convention shall apply in all cases of declared war or of any other armed conflict whichmay
arise between two or more of the High Contracting Parties, even if the state of waris not
recognized by one of them”. If there is an armed conflict between two or moreStates, then
International humanitarian law is automatically applicable, whether or not adeclaration of
war has been made, and of whether the parties to the conflict haverecognized that there is a
state of war. The only thing required for Humanitarian law tobecome applicable is the
circumstance of an armed conflict. The expression “armedconflict” appears also in Article 3
of the Geneva Conventions, which deals with non-International armed conflicts, i.e. a
confrontation not between two States, but betweenthe government and a rebel movement.”
Since conventions don’t have any definition of “armed conflict”, therefore it
isdifficult to tell what is armed conflict? According to state practice any use of armed forceby
one State against the territory of another. From the point of view of
InternationalHumanitarian Law, the question of the Convention’s applicability in a situation
is in facteasily answered, as soon as the armed forces of one State find themselves with
woundedor surrendering members of the armed forces or civilians of another State on their
hands,as soon as they detain prisoners or have actual control over a part of the territory of
theenemy State, then they must comply with the relevant convention. The number

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ofwounded or prisoners, the size of the territory occupied, are of no account, since
therequirement of protection does not depend on quantitative considerations.
Problems sometimes arise when one of the parties to the conflict denies
thatInternational Humanitarian Law is applicable, even though there is fighting. It
hashappened for example; a State declares a territory occupied by it as its territory,
therebylaying the applicability of the law of Geneva open to question.In other cases, troops
have marched into the territory of another State and replacedthe government with a new
team. The new government has then declared that the foreigntroops were lending friendly
assistance and therefore acted with its consent. Does onethen speak of intervention at
invitation, or of occupation?
How the parties to a conflict will be agreed that there is the applicability
ofInternational Humanitarian Law in a situation? ICRC is often that organization
whichdetermines the applicability of Humanitarian law. A pressure can be made by third
Stateon the State concerned, if conventions have clear law and are not to remain a dead
letterthe International community must take such reactions. It would be optional
thatInternational court of justice is called to clarify the legal situation.
InternationalHumanitarian Law ceases to have any effect when the armed conflict is over.On
theabove observation, it can be said that if there is no conflict or no pending issue relating
toits subject matter and Humanitarian problems are resolved, convention ceases to
beapplicable. International Humanitarian Law is the body of rules applicable when
armedviolence reaches the level of armed conflict.
INTERNATIONAL AND NON-INTERNATIONAL ARMED
CONFLICTS:
International Humanitarian Law was on its peak point in the mid of 20th century.The
thing which distinguishes between the international and non-international conflicts isthe
border of States. Wars between two or more States are deemed to be Internationalarmed
conflicts, and war like clashes occurring within the territory of a State areconsidered non-
International armed conflicts. When Protocol I was adopted, Conflicts ofnational liberation

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are deemed to be International armed conflicts. There are 20provisions relating to Non-
international armed conflicts in the Geneva Conventions andtheir Protocols and around 500
on International conflicts. The problems from theHumanitarian point of view are the same
whether shots were fired over or within theborder.
On the other hand International Human Rights law started its climb to ascendancyfor
the protection of human rights. The concept of Humanitarian law for non-International
conflicts was further strengthened by this development. Even after theadoption of Protocol II
in 1977 the Humanitarian constraints in civil wars remainedtrivial in comparison to the law
applicable in conflicts between States. The bigdifferences in both areas force us to present
them separately.
States are duty bound to comply with the provisions of InternationalHumanitarian
Law as they are duty bound by treaty or which makes part of customaryinternational law.
Non-State actors are also obliged.
On the above observation, it can be said that before adoption of Common Article3
International Humanitarian Law was applicable only in international armed conflictsnot in
non-international armed conflicts. Although the history of non-international armedconflict is
not new in itself. Party who take part in this type of conflicts, were consideredlike criminals
by the States and there were no any legal protection for them. Butgradually from the
beginning of the 20th century steps were taken towards noninternationalarmed conflicts. In
this direction, common Article-3 of GenevaConventions, 1949 and Additional Protocol II,
1977 are considered most important step.
Non-International conflict means the armed conflict which occurs within aparticular
State. Generally, it is known internal conflict or civil war. In this type ofconflict one party is
armed group which main purpose is to take political power in theirhands and to form a free
state. There are so many reasons of these conflicts but one ofthe main reasons is not to
respect the human rights by dictators because of which peaceof that nation is disturbed.
From the humanitarian point of view, problems are same whether within theborder or
outside the border. Most of the States do not accept the regulation on internalmatters

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contending that this is their internal matters and do not interfere in itssovereignty. They
denied any international interest in internal matters. In this context,there is a great step when
some provisions of the International Humanitarian Law wereadopting in respect of regulation
on internal matters. Common Article-3 of GenevaConvention is considered a revolutionary
achievement, but critics say that it is the firstrift in the wall of State Sovereignty. Here it is
necessary to clear that common Article-3of Geneva Conventions has got status of customary
rules.In Nicaragua vs. United States,International Court of Justice accepted this common
Article 3 as a customary rule. Thusall provisions vested in this Article are binding on all
States whether they are party ofthis or not. In Tadic jurisdiction decision the International
Criminal Tribunal for theFormer Yugoslavia (ICTY) held:
“In the light of the intent of the Security Council andthe logical and systematic
interpretation of Article 3 as well as customary internationallaw, the Appeals Chamber
concludes that, under Article 3, the International Tribunalhas jurisdiction over the acts
alleged in the indictment, regardless of whether theyoccurred within an internal or an
international armed conflict. Thus, to the extent thatAppellant's challenge to jurisdiction
under Article 3 is based on the nature of theunderlying conflict, the motion must be denied”.
In the Akayesu case, the International Criminal Tribunal for Rwanda (ICTR) held:
“thenorms of the common Article 3 have acquired the status of customary law and that most
States had by their domestic penal codes criminalized acts which committed duringinternal
armed conflict would constitute violations of the Article 3.”
The circle of Article 3 is very limited. It determines only some general rules forthose
who suffered in internal conflicts. The main purpose of Common Article 3 ofGeneva
Conventions is to focus on fundamental human treatment in the situations ofinternal conflict.
Equal protection of human and impartial treatment is provided by thisArticle 3.
It is on the State to determine which situation is internal armed conflict. But
Statedoesn’t want interference from outside in its territory. Generally Low Intensity
Conflictis not considered armed conflicts. Civil War or Rebellion would be considered
armedconflict in that case if the State within which border it is occurring, admits

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armedconflict. But State dodges to admit war as armed conflicts because of which
toimplement the provisions of Article 3 are not facile. There is no any organization whichcan
implement the said provisions of Article 3 at international level except InternationalRed
Cross Committee (Humanitarian organization).Generally States don’t deny taking
cooperation of ICRC but determines its limits towork in its territory.
ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS OF 1949:
In the Preamble of The Hague Convention of 1907, there is a Clause known
asMartens clause which says:
“in cases not included in Regulations adopted by them, populations and
belligerentsremain under the protection and empire of the principles of international law, as
theyresult from the usages established between civilized nations, from the laws of
humanityand the requirements of the public conscience.”
Only International Armed Conflicts were covered by International HumanitarianLaw,
until the 1949 Geneva Conventions was adopted. After adoption of commonArticle 3 of
Geneva Conventions, 1949, IHL became applicable in non-internationalarmed conflicts.
“International Humanitarian Law (The Laws ofWar)” viewed “Article 3 common to the four
Geneva Conventions of 1949 (CA 3)provides:
Conflicts not of an international character:
In the armed conflict not of an international character occurring in the territory of
oneof the High Contracting Parties, each Party to the conflict shall be bound to apply, asa
minimum, the following provisions:
Persons taking no active part in the hostilities, including members of armed
forceswho 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, color, religion or faith, sex, birth orwealth, or any
other similar criteria.The following acts are and shall remain prohibited at any time and any
placewhatsoever with respect to the above-mentioned persons:

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

treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliation anddegrading
treatment;
(d) the passing of sentences and the carrying out of executions withoutprevious
judgment pronounced by a regular constituted court, affordingall the judicial guarantees
which are recognized as indispensable bycivilized peoples.”
“The wounded and sick shall be collected and cared for. An impartial
humanitarianbody, such as the ICRC, may offer its services to the Parties to the conflict.The
Partiesto the conflict should further endeavor to bring into force, by means of
specialagreements, all or part of the other provisions of the present Convention.
Theapplication of the preceding provisions shall not affect the legal status of the Parties
tothe conflict”.
The provision of the fourth Geneva Conventions only applies to internal
armedconflicts. The contents of the Article 3 state that it is applicable "in the case of
armedconflict not of an international character occurring in the territory of one of the
HighContracting Parties".The focus is on fundamental human treatment and
minimumprocedural guarantees. The Article imposes certain legal obligations on the Parties
toan internal conflict for the protection of those individuals who have not, or are nolonger,
actively participating in the hostilities. Government and opposing forces bothare expressly
bound by Common Article 3 On above description, it is said thatCommon Article 3 prohibits
murder, mutilation, cruel treatment and torture, and otheroutrages upon personal dignity, and
the passing of sentences and carrying out executionsother than by duly constituted court
observing internationally recognized norms of dueprocess. In the last paragraph of the Article
3, it is stated that “the application of thepreceding provisions shall not affect the legal status
of the Parties to the conflict.”Thisclause is compulsory because the purpose of the said

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article is purely humanitarian andthat it is in no way concerned with the internal affairs of
States.
Additional Protocol II of 1977
There was an important revision of the Geneva Conventions in 1977, andAdditional
Protocols I and II to the Geneva Conventions of 1949 were adopted.Protocol I deals with
international armed conflict and protocol II deals with the noninternationalarmed conflicts.
The Martens Clause which is in the Preamble of theAdditional Protocol II holds the cases
which are not covered under the Protocol andwill still is subject to the law of humanity. The
humanity law complements and restrictsthe doctrine of military necessity by prescribing
direct attacks against the civilianpopulation and the use of violent acts which result in
unnecessary suffering. TheAdditional Protocol II refers to the principle of humanity as
contained the customarylaw principle of civilian immunity and the principle of distinction in
United NationsResolution 2444, to internal armed conflicts.
Although there is no definition of Non- International armed conflict under
theCommon Article 3, while Article 1 of the Additional Protocols II defines it as:
“armed conflicts which are not covered by Article 1 of the AdditionalProtocol I
(international armed conflicts) and which take place in theterritory of a High Contracting
Party between its armed forces anddissident armed forces or other organized armed groups
which, underresponsible command, exercise such control over a part of its territory asto
enable them to carry out sustained and concerted military operationsand to implement this
Protocol."
Thus on the observation of Article 1 of the Additional Protocols II, it can besaid that
the terms “non-international armed conflict” applies only to the conflictswhich is on large
scale. Provisions mentioned in Protocol II that the requirements ofcontrol on a particular part
of the State, and the ability to complete military operationsare in some way similar to
international armed conflicts. Article 3 of the AdditionalProtocols II provides that the
Protocol cannot be invoked to affect a State's sovereignty,its responsibility to maintain law
and order or its defence of national unity andterritorial integrity and further provides that the

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Protocol cannot justify anyintervention, either direct or indirect, in a conflict or in the internal
or external affairs ofthe State. Article 4 talks about the fundamental guaranteesof civilians
who are participating in the hostilities or who have ceased to takeparticipation that:
All persons who do not take a direct part or who have ceased to take part
inhostilities, whether or not their liberty has been restricted, are entitled to respectfor their
person, honour and convictions and religious practices. They shall in allcircumstances be
treated humanely, without any adverse distinction. It isprohibited to order that there shall be
no survivors.
Without prejudice to the generality of the foregoing, the following acts against
thepersons referred to in paragraph 1 are and shall remain prohibited at any timeand in any
place whatsoever:
Violence to the life, health and physical or mental well-being of persons, in
particularmurder as well as cruel treatment such as torture, mutilation or any form of
corporalpunishment;
 collective punishments;
 taking of hostages;
 acts of terrorism;
 Outrages upon personal dignity, in particular humiliating and degrading treatment,
rape, enforced prostitution and any form or indecent assault;
 Slavery and the slave trade in all their forms;
 pillage;
 Threats to commit any of the foregoing acts.
Detailed protection is provided to children under Article 4(3), especially right
toeducation, religious and moral education. It says that children who are under the age of15
years must not be allowed to participate in hostilities and not be involved in thearmed forces
or groups.

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Persons, who are removing children from the area of conflict to safe zone, must
beresponsible for their safety and well-being. Article 5 of Protocol deals with personswhose
liberties have been restricted because of armed conflict
Article 6 of the Protocol“applies to the prosecution and punishment of criminal offences
related to armedconflicts and states that no sentence shall be passed and no penalty shall be
executedon a person found guilty of an offence except pursuant to a conviction pronounced
by acourt offering the essential guarantees of independence and impartiality.”
Particularly, the requirement of these guarantees is that the details of the offencewhich is
against an accused must be informed to him and all the rights that he can use forhis defence
during trial must be afforded to him. These rights are provided under theheading of the right
to a fair trial mentioned in Article 14 of the ICCPR.
Article 6 also requires that the “death penalty not be pronounced on persons whowere
under the age of 18 years at the time of the offence and shall not be carried out onpregnant
women or mothers of young children. At the end of hostilities, an endeavour must be made by
the authorities in power to grant amnesty to persons who haveparticipated in the armed
conflict, or those deprived of their liberty for reasons relatedto the armed conflict”.
Geneva Conventions of 1949 are ratified by 190 States on 31 December 2010, andthe AP
II ratified by only 165 States. The USA, India, Iraq, Iran, Myanmar, Pakistan,Afghanistan,
Israel, and Sri Lanka did not ratify and signed AP II.
The proportion of non-combatant deaths in conflict has increased since last
century.Williams Paui D, in its research paper opined that “during the First World War,
anestimated 5 per cent of casualties were civilians. In the Second World War, the figurewas
50 per cent. Today, 80-90 per cent of war casualties are civilians, the majority ofthem
women and children. A large number of non-combatants die from the indirecteffects of
conflict from disease, famine and lack of services. Nearly 600,000 civilians in27 African
countries have been massacred in the past two decades.”
The 2004 Reportof the UN Secretary-General on the protection of civilians in armed
conflict states: "InIraq the increasingly serious threats to security and continued fighting

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have resulted indisproportionate and avoidable civilian deaths and injuries, and detainees
have beensubjected to torture and other serious violations of human rights and IHL".
In the Midyear Report on Protection of civilians in Armed Conflict 2010, TheUnited
Nations Assistance Mission in Afghanistan observed that in the first six monthsof the year
2010, civilian casualties, including deaths and injuries, increased by 31 percent over the same
period in 2009. (See footnote for details).
There is clear evidence that civilians are continuing to bear the wildfire of armedconflicts
today. Compliance by all parties to conflict with IHL, human rights, refugee andcriminal law
is critical in all of these conditions, whether they are situations of armedconflict, occupation
or transition. States which have ratified the Protocol haveviolated its provisions. For
example, Rwanda acceded to the AP II in 1984, however,provision of the AP II were violated
systematically in the country's internal conflict sincethe 1990s. Civilians and the wounded
were attacked and murdered, as were medicalstaff and relief workers.
In the conflict in Bosnia-Herzegovina, all parties flouted the norms of
InternationalHumanitarian Law and engaged in widespread rape, torture, murder and
ethniccleansing. In Chechnya, the Russian military used the force disproportionately
andindiscriminately therefore the principles of International Humanitarian Law are
violatedattacking on civilians. In case of non-international armed conflicts, the Philippines
andEl Salvador are States where the government forces and the insurgents admitted
theapplication of the Additional Protocol II.

UNIT VIII
REFUGEE LAW

REFUGEES IN INDIA
India mostly plays host to refugees from its neighbouring countries who are either
forced to leave their countries oforigin due to internal or external conflict,
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politicalpersecution or human rights infringements. Tamil refugeesfrom Sri Lanka, Jumma

people from Bangladesh, Tibetanrefugees from Tibet and Chin and other tribal refugees
fromBurma, Afghanistan, Iran and even Sudan today comprise thebulk of India's refugee
population. In modern times, themovement of the refugees and displaced persons has
seriouslyaffected India and other South Asian countries. The statisticsindicate that India has
one of the largest refugee populationsin the world because of India's porous borders
andaccommodative policies. It is estimated that India hostedapproximately 456,000 refugees
in 2008, including about96,000 Sri Lankans, about 73,300 stay in more than ahundred camps
but registered with the nearest policestations. About 2,800 more entered in 2008. Some
110,000Tibetans, about 80 percent of whom lived in camps orscattered settlements, lived
more freely in the country.
About 100,000 ethnic Chin from Myanmar lived under themost restricted conditions
in the eastern state of Mizoramwith a few hundred in New Delhi. An estimated 30,000
Afghans remained although only about 9,000 held UNHCRmandate status. Around 25,000
Bhutanese refugees alsoresided in India as more left Nepal for Indian states of WestBengal,
Sikkim, and Bihar and about 25,000 Nepalisremained in fear of Maoists now in the
Government of Nepal.
India also hosted some 600 Somali refugees, who beganfleeing their country after collapse of
the government in 1991and an unknown number of Iraqi and Iranian refugees andabout 200
Palestinians from Iraq also resided in India. i3 Some65,000 ethnic Chakmas from Bangladesh
remained mostly inthe states of Arunachal Pradesh, Mizoram and Assam. The
Supreme Court established their Indian nationality but theactual naturalization process
proceeded slowly.
RIGHTS OF REFUGEES UNDER THE INTERNATIONALCOVENANT
ON CIVIL AND POLITICAL RIGHTS, 1966
The International Covenant on Civil and Political Rights dealswith various human
rights and fundamental freedoms. These rights arederived from the inherent dignity of human
person. These areinalienable rights of all members of the human family and as such, arethe

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members of the human family and as such, are the foundation offreedom, justice and peace in
the world. The Covenant define inprecise manner the permissible limitations or restrictions
on theexercise of those rights and freedoms, and provide measures designedto ensure their
implementation. The basic human rights provided by theCovenant are the prohibition of
discrimination is of crucial importanceto refugee. In the International Covenant on Civil and
Political Rightsthe general rule is that each one of the rights of the Covenant must begranted
without discrimination between citizens and aliens. Aliensreceive the benefit of the general
requirement of non-discrimination inrespect of the rights guaranteed in the Covenant.
(ii) International Covenant on Civil and Political Rights includesfreedom from
arbitrary deprivation of life, protection againsttorture or to cruel, inhuman or degrading
treatment or punishment.
(iii) Right to freedom from salary and solve-trade servitude andcompulsory labour.
(iv) Right to liberty and security of person and freedom from arbitraryarrest and
detention.
(v) Facilitating voluntary repatriation of refugees is the solution totheir problem and
Covenant provides that no one shall be arbitrarilydeprived of the right to enter his own
country.
(vi) Covenant also guarantees free movement and residence withinstate and the right
to leave any country, but also provided that theserights may be subjected to restrictions
which are provided by law, arenecessary to protect national security, public order, public
health ormorals or the rights and freedoms of others, and are consistent withother rights
recognized in the present covenant.
(vii) Right to freedom of thought, conscience and religion.
(viii) Right to freedom of expression, and to hold opinion.
(ix) Right to peaceful assembly and association.
(x) Further, the unity of the family was considered as an essentialright of refugee.
Covenant includes family as the natural andfundamental group unit of society and is entitled
to protection bysociety and state.

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(xi) Covenant provide that an alian, who is lawfully in the territory ofa state party to
the present Covenant may be expelled there fromonly in pursuance of a decision reached in
accordance with lawand shall, except where compelling reasons of national securityotherwise
require, be allowed to submit the reason against hisexpulsion and to have his case reviewed
by, and be representedby the purpose before, the competent authority or a personespecially
designated by the competent authority.
(xii) Right to freedom for arbitrary or unlawful interference with hisprivacy, family,
home and right to protection of the law againstsuch interference.
(xiii) Right to Equality before the law and equal protection of the law.
As compared to the Universal Declaration of Human Rights, theCovenant on Civil
and Political Rights incorporates certain rights whichdo not found mention in the Universal
Declaration.
RIGHTS OF REFUGEES UNDER THE INTERNATIONALCOVENANT
ON ECONOMIC, SOCIAL AND CULTURALRIGHTS, 1966
Without full realization of economic, social and cultural rights theimplementation of
civil and political rights is not possible. The stateparties to the present Covenant undertaken
to take step, individually orthrough international economic and technical assistance and
cooperation,to the maximum of its available resources for achievingprogressively the full
realization of rights recognized in the presentcovenant. State parties have also guaranteed
that the rightsrecognized in the present Covenant will be exercised withoutdiscrimination of
any kind as to race, colour, sex, language, religionpolitical or other opinion Covenant
protected the basic values, whichare essential to live in society.
The Covenant includes the following rights:
(i) Rights to work, one of the most important right is crucial forrefugees. Refugees
need to be in a position to supportthemselves and their families. Covenant recognize the
rightswork families. Covenant recognize the right to work whichincludes the right of
everyone to the opportunity to gain his livingby work which he freely chooses or accepts, and
will takeappropriate steps to safeguard this right.

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(ii) Covenant recognizes the right of everyone to the enjoyment ofjust and favourable
conditions of work.
(iii) Covenant recognizes the right of everyone to social security,including social
insurance.
(iv) Covenant recognizes the right of protection and assistance to thefamily, which is
the natural and fundamental group unit of society.
(v) Right of everyone to the enjoyment of the highest attainablestandard of physical
and mental health.
(vi) Covenant recognizes the right of every one to an adequatestandard of living for
himself and his family, including adequatefood, clothing and housing, and to the continuous
improvementof living conditions.
(vii) Covenant recognizes the right of everyone to education. Primaryeducation shall
be compulsory and available free to all; andsecondary education in its different forms,
including technicaland vocational education. Higher education shall be madeequally
accessible to all.
(viii) Covenant recognizes the rights of everyone to take part incultural life, to enjoy
the benefits of scientific progress and itsapplications. Both these instruments complement
such other, asmentioned earlier, without full realization of civil and politicalrights is not
possible. Number of basic human rights of refugeesis recognized by both these instruments.

RIGHTS OF REFUGEES UNDER OTHERINTERNATIONAL HUMAN

RIGHTS INSTRUMENTS
While the basic concept and principles of the internationalrefugees regime, such as
the UN Refugee Convention and Protocol areuniversal there are some other human rights
instruments, which areadopted under the auspices of the United Nations and constitutes
themost important codification efforts of the refugees are: The 1984Convention Against
Torture and Other Cruel, Inhuman on DegradingTreatment or Punishment, the 1989
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Convention on the Rights of theChild the 1965 Convention on the Elimination of Racial
Discriminationthe 1979 Convention on Elimination of Discrimination Against Women.
So many of the rights found in the international refugee instrumentsare in one form or
another enshrined in international human rightstreaties mentioned above.
Notwithstanding, some of the pertinent decision of the ExecutiveCommittee of UNHCR are
also very important and become part of thegeneral international refugees law regime these
are like the decisionsregarding refugee law regime these are like the decisions regarding:
Asylum 1977; Determinations of Refugee Status, 1977; Protection ofAsylum Seekers in the
Situation of Large-scale Influx 1981; RefugeeWomen and International Protection 1985;
Voluntary Repatriation1985; Detention of Refugees and Asylum Seekers, 1986;
refugeechildren 1989; Refugee Women and International Protection, 1990; andRefugee
Protection and Sexual Violence, 1993.
RIGHTS OF REFUGES: GENERAL OVERVIEW
The adoption of human rights framework for the protection ofrefugees would require
a leap of faith on the part of UNHCR. Instead ofviewing itself as the mere provider of certain
basic services in thecamps, it must confront the reality of governing a political unit,
andtherefore adopt a coherent and coordinated holistic strategy to runthrough all aspects of
camp life. Governance in development of campsdoes not concern refugees solely qua
refugees, but qua human beings,who are entitled to the greatest range of human rights
promotion that ispossible. A step in this direction is very much self-evident in theguidelines
that UNHCR has already adopted on discrete areas of governance, such as women, children,
and sexual violence.
It is possible to apply the current norms of public internationallaw in a new but
authentic manner that allows the principles of humanrights to have a judicial impact upon
UNCHR development campgovernance. The refugees who are governed in such camps
areimportantly the subjects of international human rights law. UNHCRgoverns such camps in
its capacity as an international legal person,and the nature of this personality is compatible
with the application ofhuman rights law to it. What is currently missing is the

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logicalconsequence of the relationship between the two, namely the exerciseof governance
that is rooted in international human rights law. To giveeffect to this consequence through
the adoption of a human rights law framework is to attempt to mitigate some of the
unfortunate aspects ofthe current legal regime from within the parameters of that regime. It
isnot an ultimate solution to the current crisis in refugee protection. Whatis fundamentally
required is the wholesale revision of the operation ofinternational refugee law, so that it can
have a more effective impacton the rights and duties of refugees, states, and organizations.
Until aregime is developed that speaks to the nature of the current refugeephenomenon, the
role of human rights promotion in refugee camps willbe uncertain and insecure.
The existing International Legal Framework on refugeesrecognizes a variety of basic
human rights to them. Some refugeesrights are being discussed in some detail below:
(i) Right of Non-discrimination
Refugees and asylum-seekers remain in a particularly vulnerablesituation even they
enter a country or refuge. Because refuges are notcitizens of the host country, it Is inevitable
that they will not enjoy all ofthe same rights granted to citizens under national law. However,
theright of non-discrimination is a general rule of human right law. Article-3 of the 1951
Convention on "the Status of Refugees" provides that"the contacting states shall apply the
provisions of the Convention toRefugees without discrimination as to race, religion or
countries oforigin. The Convention classifies the rights to refugees into two parts.
These are first: equality of treatment with citizens, which includesfreedom of religion,
intellectual property rights, the right of access tocourts, the right to elementary education, the
right to public relief andthe rights associated with employment, labour legislation and
socialsecurity.
Second, equality of treatment with other non-citizens. Theseincluded: moveable and
immovable property rights, the right of association, the right to work, the right to form a
private business orpractice a profession, the right to housing, the right to post-
elementaryeducation, and freedom of movement. Even the Un Charter, Article 1(2)of the
Convention on the "Eliminating of all forms of RacialDiscrimination", Article-2 (3) of

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International Covenant on "Economics,Social and Cultural Rights" and Article-2 of the

Convention on "theRight of the Child" recognize the right of non-discrimination as ageneral
human right, those are equally important for providing a non-discriminatoryenvironment to
refugees. The right against non-discriminationincludes protection against xenophobia and
racistviolence.
(ii) Right to Assembly, Opinion, Expression and Religion
The freedom of religion, the freedom to hold and expressopinion, and the freedom to
organize and participate gathering aresome of the most important civil rights, recognized and
protected undermajor international and regional humanitarian and refugee laws.
Though, the 1951 Convention does not contain any provision aboutfreedom of
assembly, it is protected under general human right law. Inthe other hand, Article-Ill (2) of
the OAU Convention on Refugees,protects the freedom of opinion and expression, subject to
reasonablerestrictions on the ground of the right of reputation of others, protectionof national
security, protection of public order, protection of publichealth and protection of public
morals. The freedom of religion isrecognized under Article-4 of the 1951 Convention. It says
that "thecontracting states according to their nationals with respect to freedomto practice
their religion and freedom as regards the religionseducation of their children". The freedom
of religion includes freedomto hold a religion or belief, freedom to adopt a religion and
freedom toobservance, worship, practice and teaching subject to reasonablerestriction on the
ground of public safety, order, health, moral andfundamental rights and freedom of others.
(iii) Freedom of Movement
The freedom of movement of a refugee means the right to movefreely within the
country of asylum and to choose one's place ofresidence. Articles 26 and 31 of the 1951
Convention on Refugeesguarantee freedom of movement. It includes, right to move within
theborder of a state and to choose one's place of residence, right to leaveone's country, right
to remain in one's country, right to returnvoluntarily, right not to be expelled without a
decision in accordancewith the law.
(iv) Right not to be detained
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Though, the 1951 Convention and 1967 protocol did not includethe right against
detention overtly but it is a well recognized right ofrefugees under international human right
law. Even the Article 31 of1951 Convention on Refugees and Executive Committee
decisionssilently recognize the right. It says that the detention of refugeesshould be avoided.
But it recognizes a lawful detention on the groundof verification of identity, protection of
national security and publicorder. The Convention affirmed that the detention should be
subject tojudicial control.
(v) Right of Non-Refoulement
The right of non-refoulement is part of Customary InternationalLaw. Thus, it is
binding to all states to respect the principle of nonrefoulementevent if they are not party to
the 1951 Convention. Article-33 of the 1951 Convention provides that, "No contracting state
shallexpel or return (refouler) a refugee in any manner whatsoever to thefrontiers of
territories where his life or freedom would be threatened onaccount of his race, religion,
nationality, membership of particularsocial group or political opinion. However, this right is
subject to,security of the State and safety of the people of host country. Article11(3) OAU
Convention on Refugees and other human right laws arealso guarantee the right of non-
refoulement.
(vi) Right to Education
The international refugee law as well as international human rightlaw guarantees the
right of equality of treatment with national asregards to elementary education. According to
Article 22 of the 1951Convention, "the contracting states shall accord to refugees the
sametreatment as is accorded to nationals with respect to elementaryeducation". With regard
to higher education it called upon states toguarantee equal opportunities so far as all aliens
are concerned.
(vii) Right to Work
Right to work is a fundamental economic right, which is veryimportant for refugees,
specifically to ensure a self support mechanismfor them and their families in long term.
Article 17, 16, 19 of the 1951Convention on refugees recognize this right. It consists of 3
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types ofright. First, right on wage-earning employment; second, right on selfemployment;

and third, right on the practicing of liberal professionals.
But the right to work does not guarantee that every person given thejob as they
choose and even the host state cannot compel therefugees to do job that they do not want.
(viii) Right of Family Life
The right to have a family life is an inalienable right of humanbeing. Aticle-12 (2) of
the 1951 Convention and the executivecommittee decisions recognize the right of family life.
It says that"Rights previously acquired by a refugee and dependent on personalstatus, more
particularly rights attaching a marriage, shall be respectedby a contracting state".
Furthermore, it recognizes that the family is thenatural and fundamental group unit of society
and is entitled toprotection by society and the state.
(ix) Right of Women
According to General principles of International Law, both manand woman have the
same status and enjoy equal opportunities.Ironically, the women are more vulnerable than
men so far as theproblem of refugees are concerned. This is because the unequalaccess to
procedures, unwillingness to recognize women as aparticular social group, by affording
greater care for children and otherfamily members and risk of being subjected to sexual
violence. TheUNHCR and its Executive Committee while taking note of theseproblems
adopted guidelines for ensuring greater protection to women.These are: Guideline on the
Protection of Refugee Women, 1991; andGuideline on Prevention and Response with Regard
to Sexual Violenceagainst Refugees, 1995. Furthermore, the International Human RightLaw
recognizes the equality of men and women in every aspect whichincludes: nationality,
education, employment, health care, equalitybefore law, right to marriage and family
relation, and suppression of allforms of traffic in women and exploitation of prostitution of
women.
(X) Right of Children
The UNHCR, and its Executive Committee have issuedguidelines on "the Protection
and Care of Refugee Children'. Itrecognizes that, the refugee children need special care and
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assistancefor their development need and dependency on adults. Article-22 of the1951

Convention on Refugees deals with the general problem. It saysthat "the contracting states
shall accord to refugees the sametreatment as according to nationals". It means the status of
therefugee children should be same as the own children of host state. Inthe other hand, "the
Convention on Right of the Child", 1989, which isrecognized by 185 states, recognizes a
variety of right to childrenincluding the rights of refugee children. These rights are: Right
againstdiscrimination; Right to survival and development and Right to acquirenationality.

JURIDICAL STATUS OF REFUGEES

A considerable number of states vide their Constitutions haverecognized the right of
individuals to asylum and/or have specificallyprovide for the non-extradition of political
offenders. It has, however,been observed that although "the constitutions of a number
ofcountries expressly grant the right of asylum to persons persecuted"for political reasons,
yet it cannot be said that such a right has becomea general principle of law' recognized by the
civilized States, and assuch forming part of International Law.
In most States the entry of ileitis is regulated by means oflegislative enactment which
amounts, in effect, to a negation of anautomatic height of admission on the part of the
individual. However,the application of Immigration Laws has often been waived in the
caseof political refugees The Aliens Act of 1905, the first Act to limit entryinto the United
Kingdom, explicitly exempted political and religiousrefugees from the main excluding
provisions. Section 1, para 3 saysthat refugees were exempted from exclusion owing to
poverty. An orderof 9 March, 1906 provided that, if it was uncertain whether individualswere
political refugees, person coming from politically disturbedcountries should be given the
benefit of doubt, similarly, the Act of1917 which contains the 'qualitative' test of the United
StatesImmigration Law exempted religious refugees from literary tests. Thiswas upheld by
US Courts in Tod v. Waldmen.Political refugees arealso exempted from bringing official
documents of origin if it isimpossible for them to obtain these. Hackworth in Digest of

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International law gives the views of Mr. Welles who was the UnderSecretary of State in 1936
as follows:
"It is the traditional policy of the government of the United Statesto grant refugee in
the territory to persons whose lives are believed tobe in jeopardy as a result of their political
activities in a foreigncountry. Such persons applying for admission to the United States asso-
called political refugees are customarily admitted for a reasonableperiod under a literal
interpretation of the immigration laws, providedthey can establish to the satisfaction of
competent authorities that theirpersonal safety is actually threatened and that the offences in
whichthey may have been involved are not such as would render theminadmissible under the
law."
This policy has continued since the Second World War. Mostextradition treaties and
Constitutional enactments on extraditionexplicitly exempt political offenders from
extradition. The principal ofnon-extradition of political offenders has been affirmed to be
either arule of international customary law or a general principle of lawrecognized by
civilized nations. The principles of International Lawstate that every sovereign state has the
power to expel unwanted deny.
However, exceptions have been made in favour of political refugees.As a rule,
refugees are not expelled to countries where they would bepersecuted. It was so held by the
English Court of Criminal Appeal inthe case of Relansmer "The Court refrained from
recommendingexpulsion on the ground that the defendant if sent back to Russia,would be
punished for desertion." The position adopted by the Court inthe United States is similar.
This can be said on the basis of twodecided cases i.e. Weinberg v. Schotfledand Baraca v.
Schlotfledwhere the Courts were of the view that deportation ofJews to countries threatened
or occupied by Nazi Government wouldbe inhuman punishment. Under the provisions of the
Immigration andNationality Act authorizing the Attorney General to withhold deportationif
in his opinion an alien would be subject to persecution in the countryof destination, where an
alien fails to sustain his burden of establishingthat he would be persecuted if deported to the

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particular country, theBoard has no occasion to exercise the discrimination as to

withholdingdeportation (Shkukain v. Immigration and Naturalization Service).
But deportation in the interest of national security has been upheld bythe House of
Commons in Britain security has been upheld by theHouse of Commons in Britain. R. v.
Secretary of State for the HomeDepartment ex parte HosenballIn another English case it
was heldthat immunity against expulsion can be claimed by a refugee as thisimmunity has
been given by virtue of International Convention. Theposition in France and Holland is
similar. Burma can deport a politicalrefugee but usually refrains from doing so. But Sri
Lanka can deport apolitical refugee. The Governments of India and Iraq are of the
opinionthat "if the conduct of the political refugee deserves or justifies such ascause of action
be could be deported back. Deportation of politicalrefugees is not permissible under the laws
of United Arab Republic. Inanother English case it was held that immunity against expulsion
canbe claimed by a refugee as this immunity has been given by virtue ofInternational
Convention. The position in France and Holland is similar.
Burma can deport a political refugee but usually refrains from doing so. But Sri Lanka can
deport a political refuge deserves or justifies such ascause of action deported back.
Deportation of political refugees is notpermissible under the laws of United Arab Republic.
The right of statesto expect aliens from their territories has also been restricted in
severalmultilateral treaties. Most bilateral agreements concluded betweeninternational
agencies charged with the protection of refugees andcountries of admission for the
resettlement of refugees containprovision relating to expulsion and deportation. This
provides thebackground for the 1951 Convention and the 1967 Protocol. Countrieswho are
signatories either to the Convention or to the Protocol arerequired to abide by them too.
Article 32 of the Convention relates toexpulsion and states that the contracting states shall
not expel arefugee lawfully in their territory save on grounds of national security orpublic
order. Article 33 provides against the "Prohibition of Expulsion orReturn (refoulement)" and
no contracting state shall expel or return(refouler) a refugee in any manner whatsoever to the
frontiers ofterritories where his life or freedom would be threatened on account ofhis race,

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religion, nationality, membership of a particular social groupor political opinion. This era has
been dubbed as the "century of theuprooted". However, the vast human suffering was to
produce its ownantidote. The innumerable individual or collective hardships and theun-speak
able sufferings of these unfortunate people provoked a waveof sympathy, and created desire
to remedy the situation, in so far as itwas possible. In addition to these humanitarian
concerns, there wasalso the interest of states in remedying anomalous situations
ofunprecedented dimensions which represented for them a source oftrouble and insecurity
and of difficulties of every kind - legal, financial,social and international. It was, therefore,
not surprising that thecrusade undertaken by Nansen in 1920 met with sympathetic
responsefrom governments most directly concerned. Neither is it surprising thatthe law
relating to refugees has made more rapid progress during thelast 60 years than that relating to
the individual in general. The veryprecariousness of the refugee's situation attracted specific
action andthe urgent need for that action on purely humanitarian ground, and itslimited scope
since it involved a relatively small group of persons, alsoconstituted an incentive for
governments to adopt a new courseadapted to the requirements of the moment and the
demands of publicfeeling. It may be argued that whereas countries who are signatories tothe
1951 Convention or the 1967 Protocol or both are obliged to obeythe rules laid down. Others
who are not parties are under no obligationto give refugee to aliens and do still holding the
right either to giveprotection or to refuse it. The protection they provide is based primarilyon
principles of customary international law. But because customaryinternational law does not
provide details it is preferable to havecountries ratify the Convention and Protocol. What we
may todayregard as the inception of new international law cannot of course bedissociated
from internal law. Universal norms are useful only if theyare applied, and that can be done
only within states. Despite an effortto achieve uniformity which normally results from
universality, there is certain diversity in the application of these rules which is due to
thetraditions, the different political and administrative structures and theeconomic and social
fabric of each state. The right to education, forexample, may not have exactly the same scope
and meaning in ahighly developed country as in a developing country. Nevertheless

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thepurpose of this international law, still in the embryonic stage, is toserve as a model, to
provide as impetus and to serve as a spur toprogress. This is one important factor for seeing
to it that morecountries understand the difficulties of the genuine refugee seekersand become
signatories to the Convention and to the 1967 Protocol.
"There can be no other place like home" is very short sentencebut it conveys a
meaning which can run into volumes. On his own noperson would like to abandon his State
of Origin unlesscircumstances are created whereby he is forced to leave it. Among thetwo
primary reasons which would force a citizen to leave home are
(1)Natural Causes: Victims of force majeure i.e. the threat of severeenvironmental
problems like drought, famine, extreme climate whichmakes life impossible. The most
harrowing example in the recent pasthas been the drought in Ethopia which has displaced
countless people.
(ii) Manmade Problems, however, such as armed conflict,insurgency, denial of
fundamental human rights account for more thanninety per cent of refugee problem. For the
victims, the consequencesof such events are, in the first case, purely material or physical, but
inthe second case they are also legal. Having served contact with theauthorities of the
country of which he is or was a national and which hehas been obliged to leave because his
life or liberty were in danger, arefugee no longer enjoys the protection normally granted by a
state toits nationals abroad. In his country of refugee, he is not only aState of Origin refers to
the State from which mass exodus has taken place foreigner, but also an underprivileged one.
This abnormal situationproduces countless difficulties and problems for the refugee
himself,for the country of reception and for the international community as awhole.
The refugee problem thus has its roots in the basichatred/discrimination based upon
race, religion, caste, colour andcreed considerations. Such inhuman behaviour is against the
basicprinciples enshrined in the Universal Declaration of Human Rights.
Article 2 of the Declaration reads as follows:

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"Everyone is entitled to all the rights and freedoms set forth inthis Declaration,
without distinction of any kind, such as race,colour, sex, language, religion, political or other
opinion, nationalor social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of thepolitical, jurisdictional or
international status of the country orterritory to which a person belongs, whether it be
independent,trust, non-self-governing or under any limitation of sovereignty."
Therefore, any form of hatred perpetuated against race, religion,colour, sex, language,
political or social opinion is a direct violation atthe human rights. There are many factors,
which are contributing tocause refugee problem. One basic cause is the failure of
democraticinstitutions and politicization of the army in many countries. Thewidening gulf
between the rich and the poor and social inequality hasreached such heights which are
proving difficult to fathom. In othercases some big powers try to interfere with the internal
problems ofsmall counties and with such a situation the resident population isforced to take
up arms against the intruder armies. All these factorswhether taken together or individually
create circumstances in whichthe people are "forced to leave their country of origin and seek
refugeeelsewhere." Before we go into the Rights and Duties assigned to arefugee in the first
country of asylum. In transit and in the country ofresettlement it would be useful to examine
the definition of "refugee"and the circumstances which force him to seek refugee elsewhere.
According to Article 1(A2) of the 1951 Convention the term "refugee"shall apply to
any person who:
"As a result of events and owing to well founded fear of beingpersecuted for reasons
of race, religion, nationality, membership of aparticular social group or political opinion, is
outside the country of hisnationality and is unable or, owing to such fear, is unwilling to
availhimself of the protection of the country, or who, not having a nationalityand being
outside the country of his former habitual residence as aresult of such events, is unable or,
owing to such fear, is unwilling toreturn to it.
A refugee is "outside the country of origin because human rights,violations force
countless numbers of people to free from their homesand seek refugee in other countries. The

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violations take many forms:deliberate killings and acts of genocide; political social or
religiouspersecution; and the denial of fundamental civil, political, economicand social
rights. Flight, however, does not always bring the relief thatthe victims so desperately seek.
Too often, refugees an asylumseekers find themselves subjected to new abuses, against
which theyhave little protection. Physical assaults on refugees in flight, prolongeddetention
in humane conditions and expulsion are but a few of thedangers and difficulties encountered
by those seeking safety beyondthe borders of their own countries.
The rights and duties he enjoys in the country he goes to dependon his status, which
though as an alien is different, in the sense that"an alien is not always refugee" but the
converse is always true i.e. "arefugee is always a alien". Like other aliens, refugees are
entitled tothe same standard of treatment which customary international lawprescribes for the
treatment of aliens; but in their case the safeguardwhich exists in the diplomatic protection by
the home state of the alien is lacking. This fact constitutes the basic difference between
therefugee and an ordinary alien. Nationality is largely the basis for theprotection of aliens,
not only according to the private international lawof many countries, but also in public
international law where the right ofdiplomatic protection of the state of nationality is the
principlesafeguard for the minimum standards of treatment of aliens establishedby
international Law. The refugee, however, is in the State of 'de facto'stateless person and
while he still retains the nationality of theircountry of origin, that nationality is not effective
because the protectionof the authorities of that country is denied to them.
The absence of nationality or of protection by the Government ofthe State or
nationality creates difficulties; refugees are alienseverywhere, but laws are made with the
conception of the normal, the"protected aliens" in the mind of the law giver; Refugees often
lack,moreover, documents or are unable to comply with the formalitieswhich are required
from aliens for enjoy men of certain rights. Theirvery position, the frequent uncertainty of
their nationality status and even of their domicile are bound to create additional legal
problems.

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Serious disabilities, unintentional discrimination by the normaloperation of law - are

frequently the consequence.The practice of individual states has done much to mitigate
thedisabilities of refugees. The extent to which international human rightslaw can be applied
to refugees and asylum seekers has not been fullyexplored by the U.N. Human Rights bodies.
Yet it is quite broad. TheUniversal Declaration of Human Rights affirms full, political,
economicand social rights for all persons, citizens and non-citizens alike.
Significantly, it also provides for the right to seek and enjoy asylum,the right to
freedom of movement, and the right to nationality.International! Covenants on Human Rights
although binding onlyon those states which accede to them, apply to all persons as well(with
on or two articles applicable to citizens only), provisions in the
International Covenant on Civil and Political Rights on MinimumStandards for
Detention are frequently cited by the UNHCRofficials and human rights non-governmental
organizations asapplicable to the detention of refugees. The Convention AgainstTorture and
Other Cruel, Inhuman or Degrading Treatment orPunishment further provides special
protection for refugees inprohibiting forcible return (refoulment) where there is a likelihood
oftorture (Re Zansmer's Case). Other human right treaties (e.g. theConvention on the Rights
of the Child) extend their protection torefugees as well.

UNITED NATION RELIEF AND WORK AGENCY (UNRWA)

The United Nations Relief and Work Agency for Palestinerefugees in the Near East
was established by the GeneralAssembly- Resolution 302 (V) in December 1949. It is
theprimary international body mandated to provide assistanceto a population of 4.5 million
Palestinian refugees. It isworking since May 1950. The agency took over thehumanitarian
relief operations in the Jordanian-controlledWest-Bank, Egyptian- controlled Gaza strip,
Jordan, Lebanon and Syria in May 1950. The agency was given two duties:first, to carry out
in collaboration with 'local governments'the direct relief and works programmes for the
Palestinerefugees already recommended by an Economic surveymission; and, secondly, to
consult with "interested NearEastern Governments" about measures to be taken by

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themagainst the time when international assistance for relief andworks projects would no
longer be available.
Refugees wishing for relief have been required to registerwith the Agency, and there
are now over three and a halfmillion registered refugees. Out of these, some 187,000
areliving in Lebanon, 173,000 in Syria, 5, 68,000 in Jordan,283000 on the West Bank of the
Jordan, and 327,000 in theoccupied Gaza strip. These five territories or countries,together
with Egypt, where there are some 3,000 refugees,form the Agency's area of operation. The
registered refugee isentitled to the assistance available according to his need. Faced with high
overhead costs, lack of regional cooperation,and beset by strong opposition among refugees
to de factoresettlement, UNRWA shifted its humanitarian operations tothe delivery of basic
education, health and social assistanceservices. In 1967 the UN General Assembly -
Resolution 2252(ES-V) requested UNRWA to extend its services to Palestinianrefugees
displaced during the 1967 war.
UNRWA currently provides education, health care, andsocial assistance to more than
four million Palestinianrefugees in five areas of operation - West Bank, Gaza strip,Jordan,
Lebanon and Syria. Approximately one - third of therefugees live in 59 official refugee
camps. The Secretary -General of the United Nations appoints the Commissioner-General of
the agency, and he in turn appoints his staff. Therefugees registered with UNRWA and
receiving its assistanceare excluded from the competence of the United Nations
HighCommissioner for Refugees (UNHCR). UNRWA does not runrefugees' camps and does
not have an explicit mandate toprovide international protection to Palestinian refugees.
TheUnited Nations accorded a protection mandate for Palestinianrefugees to UNRWA's
"sister- agency"- the UN conciliationcommission for Palestine (UNCCP). The provision of
servicesthat guarantee basic economic, social and cultural rights maybe considered as a type
of protection i.e. "relief protection".
Since its creation United Nations Relief and WorkAgency has faced continuous
budgetary deficits, as UNRWA'soperations are financed almost entirely by
voluntarycontributions from governments. The Syria field regularbudget supporting the

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ongoing education, health and reliefand social services activities stands at US $ 34,878
millionfor 2008. The 2008 budget for special projects assistance stands at US $7.6 million.
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
(UNHCR)
By 1950 the international community had still notestablished a network of
institutions, system and laws to dealwith the Refugees problem in a global manner. The
turningpoint came in 1950-51, with the establishment of the office ofthe United Nations High
Commissioner for Refugees (UNHCR)and the adoption of the United Nations Convention
relating tostatus of Refugees. Together they provide, for the first time, aformal structure for
responding to the needs of Refugees andstandards for the protection of refugees under
internationallaw.
During the late 1940s, as the IRO was close to fulfillingits own temporary mandate,
states agreed to follow it with thecreation of a further temporary office, a United Nation
HighCommissioner for Refugees, to be elected by the GeneralAssembly. The work of the
High Commissioner was to befacilitated by a new treaty, and work began in parallel on
thestatute of the new office and on the text of what was tobecome the 1951 Convention
relating to the status ofRefugees. The new high commissioner would take on the roleof
providing international protection to Refugees andassisting governments to find permanent
solutions, while thenew treaty would ensure that Refugees were better protectedand enjoyed
a status that would allow them to settle successfully.
Since 1951 UNHCR started its operation as asubsidiary body of the United Nations
for a limited period andthe mandate has been regularly extended. It has a globalgeographical
coverage and operates on the basis of its statute, adopted in 1950. One of the remarkable
feature ofthe UNHCR, is that this agency is of an 'entirely non-politicalcharacter' of course
refugee for the most part are the result ofa political situation but the office of the high
commissionerwas initially designed to be non-political and attempted to beobjective in
dealing with refugee situations. This has not beenentirely possible, as the United Nations has

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become a highlypolitical organization and every specialized agency is involved in the politics
of the day.
Organization of the United Nations High Commissioner forRefugees
(UNHCR)
The United Nations High Commissioner for Refugees(UNHCR) is mandated by the
United Nations (UN) to lead andco-ordinate international action for the world- wide
protectionof Refugees and the resolution of refugee problems. UNHCR's primary purpose is
to safe guard the rights and will being of refugee. The General Assembly decided on
December 3, 1949 toestablish the office of the United Nations High Commissioner.
Status, Tenure and the Structure of the Office Status
Status
The status of the office of the United Nations HighCommissioner for Refugees
(UNHCR) is asubsidiary organ of the General Assemblyfunctioning under art 22 of the
charter. The officeenjoys a special status within the United Nationswith high degree of
independence and autonomyalong with prestige arising out of important and attimes vital
function which it performs. WhenUNHCR opened its door for business on Jan 1,1951, it
comprised a staff of 33 people basedmainly in Geneva with a budget of around $300,00.
In more than five decades, the refugee agency hasgrown into a global operation. Today,
staffs ofaround 6,300 people in more than 110 countries continues to help 32.9 million
people
Structure
The office consists of a High Commissioner, a DeputyHigh Commissioner and an
Assistant High Commissioner.Apart from them, the office of high commissioner has
beendivided in to seven division/ departments. They are as follows:
(i) The executive (High Commissioner's) office;
(ii) The division of international protection-which isresponsible for the agency's core
protection mandate;
(iii) The department of operations- which covers all fieldprogrammes;
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(iv) The division of external relations;

(v) The division of human resources management forpersonnel;
(vi) The division of information system and technology; and
(vii) The division of financial and administrativemanagement.
All the divisions have been divided in to further subdivisions,sections and desks.
These divisions work in closeco-operation with each other. The UNHCR performs
itsresponsibilities with the help of all regional offices and theirstaff. However, the High
Commissioner holds the key positionand performs its duty in terms of co- ordination,
formulationof policy and effective planning.
Tenure
The office of the United Nations High Commissioner forRefugees was set up on
January 1, 1951 for a period of threeyears. However, it soon became imperative that the
officecould not be dispensed with after three years and the GeneralAssembly decided to
prolong the mandate for a further periodof five years, and made it renewable from January 1,
1954.
Thus, the tenure of the United Nations High Commissioner forRefugees has been
continuously renewed and extended fromtime to time.The office of the United Nations High
Commissioner isusually held by a person of distinction.
Functions of United Nations High Commissioner for Refugees(UNHCR)
The role of any office along with its activities mustdepend upon its functions and on
the nature of the specificpurpose lying at the root of its creation in relation to thecommunity
which it is required to serve. To provideprotection to refugees is the main function of the
UnitedNations High Commissioner for Refugees (UNHCR). It is theprimary operating
agency, with responsibility for coordinatingrelief activities and ensuring that all refugees
received thebasic, minimal level of assistance. Therefore, the office of theUnited Nation
High Commissioner for Refugees (UNHCR) isviewed as the humanitarian arm of the United
Nations. UnitedNations high commissioner for Refugees (UNHCR) has a majorrole in
coordinating aid to refugees and its materialassistance activities are conducted through

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national or localauthorities of the country concerned, other organizations ofthe United

Nations (UN), NGO's.
United Nations high commissioner for Refugees (UNHCR)material function can be found in
Para 8 of the statute:The specific activities as mentioned in the statute are asfollow:
(a) Promoting the conclusion and ratification ofinternational conventions for the
protection of refugees,supervising their application and proposing amendmentsthere to;
(b) Promoting through special agreements with governmentsthe execution of any
measures calculated to improve the situation of refugees and to reduce the number
requiringprotection;
(c) Assisting governmental and private efforts to promotevoluntary repatriation or
assimilation within newnational communities;
(d) Promoting the admission of refugees, not excluding those in the most destitute
categories, to the territories of states;
(e) Endeavoring to obtain permission for refugees totransfer their assets and
especially those necessary fortheir resettlement;
(f) Obtaining from governments information concerning thenumber and conditions of
refugees in their territoriesand the laws and regulations concerning them;
(g) Keeping in close touch with the governments and intergovernmentalorganizations
concerned;
(h) Establishing contact in such manner as he may thinkbest with private
organizations dealing with refugeequestions;
(i) Facilitating the co-ordination of the efforts of privateorganizations concerned with
the welfare of refugees.
The purpose of international protection is to giverefugee's similar legal status as the
nationals living abroad.However the permanent solution means economic and
socialintegration of refugees in the country of asylum andrepatriation to their country of
origin. Former HighCommissioner Ruud Lubbers said in one speech: "protectionis not
protection if there are no solutions".Traditionallythree major durable solutions have been

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promoted by theUnited Nations High Commissioner for Refugees (UNHCR)"voluntary

repatriation, integration on the spot or localsettlement and third country settlement".
However, theinternational community has placed emphasis on voluntaryrepatriation as the
strongly preferred solution. The HighCommissioner performs such activities including
repatriationand resettlement, as the General Assembly determines, withinthe limits of the
resources placed at his disposal.
Repatriation
The statute of the United Nations High Commissioner forRefugees (UNHCR) gives
direction to the High Commissionerto facilitate and to promote voluntary repatriation.
Therepatriation can be considered only when conditions in thecountry of origin have changed
so much that the refugeesshould not believe that their lives are in danger or liberty isbeing
threatened. It is noteworthy that under the UNHCRauspices thousands of refugees have
returned to their homes.
For example, 2, 00,000. Burmese who were in Bangladesh,repatriated in 1978, 1,
30,000 Zairians living in Angola aswell as 1, 50,000 Angolans living in Zaire were
repatriated totheir respective home countries. Further almost 1, 00,000Nicaraguan refugees
returned from Cost Rica andHonduras.284 in 1981, at the request of the United
NationsSecretary- General, the UNHCR agreed to coordinate aprogramme of humanitarian
assistance in Zimbabwe. Thisprogramme could benefit 6, 00,000 returning refugees
anddisplaced persons. Again in 1981, the UNHCR repatriatedChadian refugees mainly from
Cameroon and providedassistance to help them on their arrival which benefited 2,00,000
people.
In April 1994, the UNHCR initiated an organizedrepatriation programme for the
Refugees. Under thisprogramme thousands of refugees repatriated under the
highcommissioner's auspices. More than two million Afghan andMozambique refugees
returned to their homes in 1994 -95.
Significantly return movements continue in 1996 in whichthousands of Rwandese
returned to their homes from Uganda, Burundi, and Tanzania. As part of its efforts to

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promote and consolidatevoluntary repatriation and to prevent new displacement, theUNHCR

has expanded its activities in countries of origin.
Whenever, voluntary repatriation takes place, the UNHCRtries to ensure that a legal
frame work is set up to protect therights of returnees. Since refugees return to a situation
ofuncertainty, the UNHCR adopts community- basedapproaches to ensure the sustainability
of its repatriation and reintegration.
Integration
Where voluntary repatriation is not feasible, the bestsolution is to settle refugees in
their host country. This canonly be done with the agreement of the government of theasylum
country and the UNHCR. In Africa, refugees have beenmoving for a long time into
neighbouring countries, they havegenerally been admitted unconditionally. The integration
iseither spontaneous or in an organized manner. If it is in anorganized manner the same is
achieved, within a programmeset up by UNHCR and the government concerned jointly.
Most of the local settlements have become thepermanent home of refugees. For example in
1981, 66 suchsettlements were established in 14 African countries in which a million people
integrated. In Tanzania itself about 36,000refugees, who were there for more than 20 years,
have beenintegrated and offered Tanzanian citizenship. In Sudan also,same efforts are being
made to settle a large number ofrefugees in rural and semi urban region. Similar plans
arebeing put into effect in different region of the world. However,due to bad economic and
social conditions in many hostcountries, the UNHCR’s integration activities in recent
yearshave diminished in relation to its other material assistanceprogrammes.
Resettlement
Resettlement in the third country may be the only wayto guarantee international
protection to a refugee who hasbeen denied protection in the country of asylum and
whocannot repatriate to the country of his origin. United NationsHigh Commissioner for
Refugees (UNHCR) has been activelyengaged in the promotion of resettlement with
cooperation ofinterested governments and voluntary agencies concernedwith the resettlement
of Refugees.

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Sometimes Refugees may even find themselves atgreater risk in their country of
asylum than they were in theircountry of origin, in such circumstances repatriation is
notpossible and there is no possibility of durable localintegration into the country of asylum,
resettlement in thirdcountry may be the only feasible option. Resettlementinvolves
transferring a refugee from his or her country ofasylum to another state which has agreed to
admit thatperson, to grant them long- term residence rights and theopportunity to become
naturalized citizens.
Agency encouraged states to accept more refugees forpermanent settlement to
integrate them locally in countrieswhere they had first sought refuge or asylum. The
UNHCRreported that in 2002, in the wake of terror attacks on theUnited States, the number
of successful settlements directlyunder the auspices of the agency plunged by 56 percent. Out
of 185 member states of the United Nations, only nine countries establish annual resettlement
quotas over andabove their acceptance of persons arriving spontaneously at their own
borders.
LEGAL STATUS OF REFUGEES IN INDIA
In India there is no national legislation concerningrefugees, their legal status and
rights. They are treated asaliens. In the absence of clear cut guidelines, refugees thusfall
under the purview of the legislative framework thataddresses all foreigners in India. Further
India's refugeepolicy is governed by certain administrative regulations.
There are three sets of laws that deal with foreigners in India.They are: The
Registration of Foreigners Act, 1939, dealingwith all the foreigners, the foreigners Act, 1946,
empoweringthe state of regulates the entry, the presence and departureof aliens in India and
the foreigner's order 1948. UnderSection 2 of the Registration of Foreigners Act, the
termforeigner is defined as "a person who is not a citizen of India",which can refer to aliens
of any kind including immigrants,refugees and tourists. The Foreigners Act of 1946 and
theforeigners' order of 1948 also uses this definition of aforeigner.
The Indian government has the power to restrictmovement inside India, limit
employment opportunities, andcontrol the opportunity to associate and the right to

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returnrefugees to the country they have fled from. FurtherGovernment has the power to either
grant or refuse entry if aperson does not possess a valid passport. The governmentscan
refoule refugees at the border, No current Indian law refers directly to refugees. Thecurrent
position is that they are dealt with under the existingIndian Laws, both general and special,
which are otherwiseapplicable to all foreigners. In the absence of a legal process,India's
treatment of asylum seekers has always been apolitical decision, a direct result of the
country's relationwith the refugee's country of origin hence the government ofIndia handles
refugee matters administratively, according tointernal domestic and bilateral political and
humanitarianconsideration.
India is not a signatory to the 1951 convention relating to thestatus of
refugees or the 1967 protocol
India has never been a member of the 1951 InternationalConvention for Refugees and
its 1967 Protocol, and eventhough it is member of the UN High Commissioner for
Refugees (UNHCR) Executive Committee since 1996, but itdoes not officially recognize the
work of the UN body in its territory.
India's reluctance to sign the Convention stems from itsposition that it is Eurocentric, tailored
to fit the refugeemovements after World War II and has not responded well to mass
migration. Another reason of not signing the UNconvention protecting refugees is that the
signing conventionmeant to be obligated to accept massive flows of refugeesfrom politically
unstable neighbours. As mentioned earlierIndia has a huge population over a billion people
with at leastsix hundred million living in poverty. Thus our own peopleare living like
refugees with limited access to basicnecessities. Signing convention implies taking on
theobligation to provide employment, food, housing, medicalcare, education etc., to refugees.
Despite not signing up, ourrecord to giving shelter has been very good.
India's International Commitments
India does not have on its statute book a specific andseparate law to govern refugees.
In the absence of such aspecific law, all existing Indian laws like The CriminalProcedure
Code, The Indian Penal Code, and The Evidence Actetc., apply to the refugees as well. Even
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though India is not asignatory to the 1951 convention of Refugees and also the1967 Protocol,
India is a signatory to a number of UnitedNations and World Conventions on Human Rights,
refugeeissues and related matters. India's obligations in regard torefugees arise out of the
later. India became a member o theExecutive Committee of the High Commissioner's
Programme(EXCOM) in 1995. Membership of the EXCOM indicatesparticular interest and
greater commitment to refugeesmatters. India voted affirmatively to adopt the UN
Declarationof Human Rights which affirms rights for all persons, citizens and non-citizens
alike. India voted affirmatively to adopt theUN Declaration of Territorial Asylum in 1967and
also ratifiedthe International Covenant on Civil and Political Rights
(ICCPR) as well as the International Covenant on Economic,Social and Cultural Rights
(ICESCR) in 1976. India ratifiedthe UN Convention on the Rights of the Child in 1989.
Indiaratified the Convention on the Elimination of All Forms ofDiscrimination against
Women (CEDAW) in 1974. FurtherIndia accepted the principle of non-refoulment as
envisagedin the Bangkok-Principles, 1966, which were formulated forthe guidance of
member states in respect of mattersconcerning the status and treatment of refugees.
Theseprinciples also contain provisions relating to the repatriation,right to compensation,
granting asylum and the minimumstandard of treatment in the state of asylum.
A general survey of the law and policies of the Indiashows that the country has
followed must of the provisions ofInternational Convention on Refugees in practice. Taking
thisinto account, it is clear that India respects international treaties on the treatment of
refugees residing within itsterritory; but it chooses to maintain its own
administrativearrangement of dealing with temporarily or permanent settledrefugee's
communities.
Indian Practice Regarding Refugee Protection
The practice of the Indian Government has been to dealwith refugees in three main
ways;

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(a) Refugees in mass influx situations are received in campsand accorded temporary
protection by the IndianGovernment including, sometimes, a certain measures of socio-
economic protection.
(b) Asylum seekers from South Asian countries or any othercountry with which the
government has a sensitiverelationship, apply to the government for politicalasylum which is
usually granted without an extensiverefugee status determination subject, of course, to
political exigencies;
(c) Citizens of other countries apply to the office of theUnited Nations High
Commissioner for Refugees(UNHCR) for individual refugee s t a t u s determination
inaccordance with the terms of the UNHCR statute and the Refugee Convention.
Indian Government has established fairly wellexperienced bureaucratic machinery
conversant with theproblems of refugee administration.India has a three pronged strategy to
deal with refugee problem:
(a) The Home Ministry deals with the formulation of policiesof rehabilitation and
settlement of refugees.
(b) The Ministry of External Affairs is empowered with theresponsibility of bilateral
negotiation and to deal withthe issues internationally.
(c) The State Governments are entrusted with theresponsibility of protection and
maintenance of therefugee camps at the local level.On the other hand, National Human
Rights Commission,Minority Commission and State Human Rights Commissionetc., are
entrusted for ensuring overall human rights,fundamental freedom and equal opportunity to
all, at nationallevel in their areas.
Refugees and the Indian Legal Framework
India is home to one of the largest refugee populationsin the world. Although the
Indian government claim that itspolicies conform to international standards, no Indian
lawrefers directly to refugees. The result is that refugees aretreated under the law applicable
to aliens. The Indiangovernment deals with the refugees at both the political
andadministrative levels. Refugees encounter the Indian legalsystem on two counts. There

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are laws which regulate theirentry into and stay in India. Once they are within the
IndianTerritory, they are then liable to be subjected to theprovisions of the Indian penal laws
for various commissionsand omissions under a variety of circumstances. There arevarious
constitutional and legal provisions with whichrefugees may be concerned under varying
circumstances.
(i) Constitutional Provisions
India is a country governed by the Rule of Law. IndianConstitution is a living
document in which the status ofhuman rights is fairly high. Constitution confers certainrights
on every human being and certain other rights oncitizens. Every person is entitled to equality
before law andequal protection of the law. So also, no person can bedeprived of his life or
personal liberty except according toprocedure established by law. Thus state is bound to
protectthe life and liberty of every human being, be he a citizen or otherwise.The
Constitution of India expressly incorporatesthe common law percept and the courts have
gone further toraise it to the status as one of the basic features of theConstitution which
cannot be amended. The Constitution ofIndia reflects the international norms set out in the
UniversalDeclaration of Human Rights which, among other things,affirm, the principle of
non-discrimination and proclaim thatall human beings are born free and equal in dignity
andrights, and that everyone is entitled to all the rights andfreedoms set forth in the document
without distinction of any kind. Hence, in India, almost all the basic refugee rightshave got
constitutional recognition. Chapter III of theconstitution, under Article 14-35, deals with a
variety offundamental rights. However, all these fundamental rightsare not available to aliens
and at the time of emergency, dueto war and external aggression, the enforceability of
thefundamental rights other than right to life can be suspendedby the state.
The constitution of India provides following fundamentalhuman rights and
fundamental freedoms to refugees, legallyadmitted to India and so long as he is permitted by
thegovernment to remain in this country:
(a) Equality before the Law or Equal Protection of the Law

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The principle of 'equality before the law' is universallyrecognized, and is to be found

in almost all those writtenConstitutions which guarantee fundamental rights. Theunderlying
principle of Article 14 is that all persons andthings similarly circumstanced should be treated
alike bothin privileges conferred and liabilities imposed. Among equals,the law should be
equal and should be equally administered.
The like should be treated alike. What is prohibited isdiscrimination between persons
who are substantially insimilar circumstances or conditions. Article 14 applies to"any
person" and is not limited to citizens alone. Bothindividuals and juristic persons are entitled
to the benefit ofArticle 14.Article 14 provides: "The state shall not deny to anyperson
equality before the law or equal protection of lawswithin the territory of India".
Why May Claim Article 14 protection
The obligation imposed on the state by Article 14 is forthe benefit of all persons,
within the territory of India. Thebenefit of Article 14 is, therefore, not limited to
citizens.Every person whether natural or artificial, whether he is a citizen or an alien, is
entitled to the protection of this Article.
So, as per the provision, even a foreigner will have theright to invoke Article 14 and
complain against thediscrimination if he is denied the equal protection of lawwithin the
territory of India. The state would not discriminatea refugee against other refugees of same
class regarding anybenefit or rights they enjoy by virtue of their refugee status.
It may however be noticed that an alien (a foreign national)cannot claim equal rights
under Article 14 with that of theIndian nationals, so far as the grant of citizenship of India.
In Louis De Raedt Vs. Union of India,the SupremeCourt had ruled that the fundamental rights
of the foreignerwas confined to Article 21 and did not extend to a foreigner,the right to reside
and settle in India, as states in Article 19(1) (e) Relying on the judgments and distinguishing
thedecision of the Supreme Court in National Human RightsCommission Vs. State of
Arunachal Pradesh'the Madras HighCourt in David John Hopkins Vs. Union of India”, held
thatforeign nationals did not have any fundamental rightguaranteed for the grant of
citizenship of India, in whichmatters, the Government of India had got unrestricted

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powerunder the citizenship Act, 1955, to refuse citizenship, withoutassigning any reason
whatsoever and that a foreign nationalcould not claim equal rights under Article 14 with that
of the Indian national.
(b) Right to Life and Personal Liberty etc.
The Indian Constitution guarantees the right to life andpersonal liberty to all persons.
The protection of Article 21 ofthe constitution is available to citizens as well as noncitizen,
and they also have right to live, as long as they arehere, with human dignity.
Article 21 provides "No person shall be deprived of hislife or personal liberty except
according to procedureestablished by law". This right has been held to be the heart of the
constitution.'
Article 21 secures two rights:
(i) Right to life; and
(ii) Right to personal liberty
Article 21 prohibits the deprivation of the above rightsexcept according to procedure
established by lawsArticle 21 can be claimed only when a person is deprivedof his "life" or
personal liberty by the "states" as defined byArticle 12. It not only refers to the necessity to
comply withprocedural requirements, but also, substantive rights of citizen. Violation of the
right by a private individual is notwithin the purview of Article 21.
Who can claim the Protection of Article 21
The right secured by Article 21 is available to every person, citizen or non-citizens.
Thus, even a foreigner" can claim this right. However, Article 21 applies only to natural
person. It has no application to corporate bodies.
It is well settled that an alien can claim the protectionof Article 21. It, however, does
not include the right to resideand settle in India, as mentioned in Article 19 (1) (e) which
isapplicable to the citizens of the country.
In Cherchi Domenico Ferdinando V. Union of India, thepetitioner a foreigner who
had come to India on tourist visa,granted extension to stay in India on the ground of
hispurported marriage with an Indian, which way, in fact, tofacilitate and carry out

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widespread trafficking in drugs byforeign tourists. Holding that an alien had no right to
resideor settle in India, the Delhi High Court upheld hisdeportation from India by an order of
the Government.
Just as the state is under an obligation to protect thelife of every citizen in this country, so
also the state is underan obligation to protect the life of the persons who are notcitizens.
Thus, the refugees can avail of the benefit underArticle 21 of the Constitution in the same
way as the citizensof India. They cannot be exposed to threat to life andpersonal liberty. State
being governed by the rule of law isbond to protect the life and liberty of every human being,
behe a citizen or otherwise.
Article 21 is of the widest amplitude after the judgment of Meneka Gandhi case and it
covers a variety of rights whichare provided to refugees' aliens and non-citizens in India:
(i) Right to live with human dignity
"It is the fundamental right of everyone in this country to live with human dignity free
from, exploitation." This right tolive with human dignity enshrined in Article 21.
(ii) Right to livelihoods
"The right to life includes the right to livelihood." If theright to livelihood is not
treated as a part of theConstitutional right to right to life, the easiest way ofdepriving a
person of his right to life would be to deprive himof his means of livelihood to the point of
abrogation. Deprivea person of his right to livelihood means person is derivedfrom his life.
(iii) Right to Shelter
The right to shelter has been held to be a fundamentalright which springs from the
right to residence secured inArticle 19 (1) (e) and the right to life guaranteed by
Article21.Right to shelter, includes adequate living space, safeand decent structure, clean and
decent surroundings,sufficient light, pure air and water, electricity, sanitation andother civic
amenities like roads, etc. So as to have easyaccess to his daily avocation. The right to shelter
does notmean a mere right to a roof over one's head but "right to theentire infrastructure
necessary to enable him to live anddevelop as a human being".
(iv) Right to Education
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Right to education is fundamental right under Article 21and "it directly flows from the
right to life". The right is,however, not an absolute right and that it's content andparameters
have to determine in the light of Article 41
(v) Right to Social Security and Protection of the Family
Right to life guaranteed under Article 21 includes withinits ambit "the right to social
security and protection of thefamily". Interpreting Article 39 (e) of the Constitution of
Indiavis-a-vis Article 25 (2) of the Universal Declaration of theHuman Right and Article 7 of
the International Convention onEconomic, Social and Cultural rights, 1965, J.K.
Ramaswamyin Calcutta Electricity Supply Corporation (India) Limited Vs.Subhas Chandra
Bose, held that the right to social andeconomic justice was a fundamental right. It is
explained thatright to life and dignity of person and status without means,were cosmetic
rights. "Socio-economic rights were, therefore,basic aspirations for meaningful right to life
and that the rightto social security and protection of the family were integralpart of the right
to life".
In NHRC V. State of Arunachal Pradeshthe SupremeCourt said that the state was
bound to protect the life andliberty of every human being, be he a citizen or otherwise anthat
the state could not tolerate or permit anybody or groupof persons to threaten other person or
group of persons.
(vi) Right to Health and Medical Assistances
The right to life guaranteed under Article 21 includeswithin its ambit the right to
health and medical care. Itincludes the right to lead a healthy life so as to enjoy all faculties
of the human body.
It is not merely a right enshrined under Article 21 butan obligation cast on the state to
provide this both underArticle 21 and under Article 47.
(vii) Right to Privacy
The Right to personal liberty and the right to move freelyand speech could be
described as contributing to the right toprivacy. However, the right was not absolute and

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wouldalways be subjected to reasonable restrictions. The rightwould necessarily have to go

through a process of case bycase development.
(viii) Right to Free Legal Aid and Right to Speedy Trial
The "right to free legal aid" at the cost of the state to anaccused, who could not afford
legal services for reasons ofpoverty, indigence or incommunicative situation, was part offair,
just and reasonable procedure implicit in Article 21.
The "right to speedy trial", has been interpreted to be a partof the fundamental right
to life and personal liberty. Article21 requires that a person can be deprived of his liberty
onlyin accordance with procedure established by law whichshould be a just, fair and
reasonable procedure.
(ix) Right against Inhuman Treatment
The Supreme Court in several cases, has taken a seriousnote of the inhuman treatment
meted to the prisoners andhas issued appropriate directions to prison and policeauthorities for
safe guarding the right of the prisoners andperson in police lock-up, particularly of women
and children. So the inhuman treatment by the police wasviolation of Article 21. As human
dignity is a clear value ofour Constitution not to be parted away for mere
apprehensionentertained by jail officials.
(c) Protection against Arrest and Detention
The Indian Constitution guaranteed protection againstarrest and detention in certain
cases. It embodies proceduralsafeguards against arrest or detention which are available inthe
following two cases:
A. Where the arrest a detention is made under the ordinarylaw relating to commission
of offences?
B. Where the detention is made under a law providing forpreventive detention.
Who can claim Article 22
The safeguard contained in Article 22 can be claimed byevery person whether a
citizen or a non-citizen. Even aforeigner can claim these safeguards. However,
thesesafeguards are not available to an enemy alien (i.e., anational of a country with whom
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India is at war) Article 22lays down the four rights/safeguards against arrest ordetention
made under ordinary law relating to the commission of offences:
(a) Right to be informed, as soon as may be, of the groundsfor arrest or detention.
(b) Right to consult and to be defended by a legalpractitioner of his choice.
(c) Right to be produced before the nearest Magistratewithin 24 hours of arrest.
(d) Right not to be detained in custody beyond 24 hours without the authority of the
Magistrate.
Article 22 (1) and 22 (2) of the Indian Constitutionreflect that the rules of natural
justice in common law systemare equally applicable in India, even to refugees.
(d) Protection in Respect of Conviction for Offences
Constitution provides protection in respect of convictionfor offences. The protection
contained in Article 20 isavailable to all persons, citizens or non-citizens. The term"person"
in Article 20 includes a corporation which isaccused, prosecuted, convicted or punished for
an offence.
So the foreigners or aliens are also entitled to the protection of the rights:
(a) The right against prosecution under retrospective penallaw;
(b) The right against double jeopardy; and
(c) The right against self-incrimination.
(e) Right against Exploitation
The Constitution of India provides protection againstexploitation. This right is
secured to every person, whethercitizen, non-citizen on alien. The protection contained
thereinis available not only against state but also against private individuals.
Prohibition of "Traffic in Human Beings' and Forced Labour
Article 23 of the Constitution prohibits traffic in humanbeing and beggar and other
similar forms of forced labour andany contravention of this provision shall be an
offencepunishable in accordance with law. However it does notprohibit state to impose
compulsory services for publicpurposes provided that in making so it shall not make
anydiscrimination on grounds only of religion, race, caste or class or any of them.
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So this right is available to citizens and refugees, andnon-citizens without any

discrimination. The practice oftraffic in human being is condemned in almost
everyinternational instrument dealing with human rights.
Prohibition of employment of Children
Article 24 provides: "No child below the age of fourteenyears shall be employed to
work in any factory or mine orengaged in any other hazardous employment".
This provision read with the Directive Principles of StatePolicy contained in Article
39 (e) and 39 (g), provides for theprotection of the health and strength of children below the
age of fourteen years.
The prohibition contained in Article 24 could be plainlyand indubitably enforced
against everyone, whether state orprivate individual.
(j) Right to Religious Freedom
"Secularism is the basic feature of the Constitution".Inthe matter of religion, the state
is neutral and treats everyreligion equally.Constitution of India provides 'freedom, of
religion', theright is available to every person, citizens or non-citizens oraliens.
Article 25 of the constitution of India provides: "Subject to public order, morality and
health and to the other provisionof this part, all persons are equally entitled to freedom
ofconscience and the right freely to profess, practice andpropagate religion".
Article 25, secures to every person:
• freedom of conscience; and
• the right to professreligion;practice religion; andpropagate religion
The state has an obligation to guarantee this right toall.
(g) Right to Constitutional Remedies
Fundamental Human Rights are meaningless unlessthere is effective machinery for
the enforcement of theserights. Violation of the fundamental rights by the state can
bechallenged. Article 32 and 226 of the Constitution providedan effective remedy for the
enforcement of these rights. Soany person whether citizen or non-citizen or alien or
refugeeaggrieved by the infringement of the fundamental rightsenshrined in part III of the
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constitution can directly approachto the Supreme Court or High Courts for relief is one ofthe
'highly cherished rights'of the Constitution. This righthas been held to be "integral part of an
important and thebasic structure of the constitution".
Thus, the right to move the Supreme Court or HighCourts for the enforcement of the
fundamental rights is itselfdeclared to be a fundamental right.
(h) Directive Principles of State Policy
Part IV of the Constitution relates to the DirectivePrinciples of State Policy. It sets
forth the ideals andobjectives to be achieved by the state for setting up in India aSocial
Welfare State. The basic aim of the Welfare State is theattainment of substantial degree of
social, economic andpolitical equalities, the assumption by community actingthrough the
State, as its responsibility, to provide the means,whereby all its members can reach minimum
standard ofeconomic security, civilized living, capacity to secure socialstatus and culture to
keep good health.
Article 51(a) requires that "The State shall endeavour topromote international peace
and security" which stipulatedthat government had a fundamental duty to show
compassionwhich is important for the recognition of refugees as humanbeings.
Further Article 51 (C) stipulates that "the State shallendeavour to foster respect for
international law and treatyobligations in the dealings of organized people with another".
Even without being a party to the 1951 Conventionrelating to the status of Refugees
or the 1967 Protocol, inIndia, the rights of refugees to this extent are protected bythe
provisions made in Constitution.
As discussed earlier all the basic human rights ofrefugees have got constitutional
recognition in India, inspite of that the persons who granted asylum in India get somespecial
treatment as long as they remain in the territory.
Role of judiciary in the protection of human rights of refugees inIndia
Only an impartial and independent judiciary can protectthe rights of the individual
and provide equal justice withoutfear or favoured. Every constitution institutionalizes
thejudiciary as the principle instrumentality for enforcement ofhuman rights when invaded

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by the state or by any authorityunder the state or by an individual. The status of humanrights
is fairly high under the India constitution which makesprovision for fundamental rights and
empowers the judiciaryto enforce these rights, and the judiciary in India has donematchless
service in protecting the people's human rights.
In the exercise of its jurisdiction and power the judiciary hasdevised new strategies,
forged new tools and broadlyinterpreted the letter of law to ensure the protection ofhuman
rights to the people. As a fearless watchdog of thefundamental rights, the superior courts in
India havevigorously upheld the value of a liberal democracy and actedas a catalytic agent of
social control and successfullyhammered out human rights jurisprudence in the light of
thephilosophy envisaged in our national charter, judiciary has made their task easy by
evolving the concept ofSocial Action Litigation or Public Interest Litigation.

Judicial treatment provided to refugees

In the absence of specific law on refugees, the Indianjudiciary has played a very
constructive role in protecting theinterest of the refugees. Courts orders have filled
legislativegaps and in many cases have provided a humanitariansolution to the problems of
refugees. Moreover, Indian courtshave allowed refugees and intervening non-
governmentalorganizations (NGOs) to file cases before them. Furthermore,the courts have
interpreted provisions of the Indianconstitution, existing laws and, in the absence of
municipallaw, provisions of international law to offer protection to refugees and asylum
seekers.
The judicial opinion is that rules of international lawand municipal law should be
cordial and harmonious, andonly when there is an inevitable conflict between these twolaws
the municipal law should prevail over international law.
Against this backdrop when one examines the binding force ofinternational refugee
law on and its relations with Indianmunicipal law, one can conclude that as long as
internationalrefugees law does not come in conflict with Indian legislationsor policies on the
protection of refugees, international refugeelaw is a part of the municipal law. Courts in India

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havealways adopted a liberal approach in taking into account theinternational covenants,

while interpreting the statute law.
Indian courts, while generally strictly interpreting thestringent legislation on
foreigners by refusing to interferewith the powers of the executive, have on occasion,
evolved awider and more humane approach to protect the rights ofrefugees in India. In 1996,
the Supreme Court in N.H.R.C. Vsstate of Arunachal Pradesh intervened with a
liberalinterpretation of the law to suggest that refugees are a classapart from foreigner
deserving of protection of article 21 of theconstitution.
Despite the fact that the Indian government has notsigned the Convention relating to
the status of refugee, 1951and the Protocol of 1967, India cannot refuse asylum to bonafide
seekers of shelter from other countries, consistentwith India's commitment to human rights.
The Indianjudiciary has consistently recognized the importance ofhuman rights and has been
giving effect to the provisions ofthe Universal Declaration of Human Rights, 1948,
International Covenant on Civil and Political Rights, 1966,International Covenant on
Economic, Social and CulturalRights, 1966. The Convention on the Rights of the Child,1989,
The Convention on the Elimination of all forms ofDiscrimination against Women, 1981,etc.
Which governmentof India has been ratified, in addition, the Indian judiciaryhas generally
giving effect to principles of international law.
India's Supreme Court has gone so far as to extend theapplication of article 14 (right
to equality) and article 21(right to life and liberty) to everyone, including migrant
andrefugees residing within the territory of India, and also basichuman rights as defined by
the UN have been conferred uponthe refugees. In addition, India also affirms the principal
ofnon-refoulement which is integral to any law on refugees.
The judiciary has sought to fulfil the void created by theabsence of domestic
legislation by its land mark judgments inthe area of refugee protection. Refugees may not be
citizenbut they are certainly persons, and hence, they too areentitled to the protection of their
basic human rights.

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There are several decisions of the Supreme Court ofIndia and High Courts where
refugees have given protectionby invoking article 14 and article 21 of the constitution.While
the executive branch of the government of India doesnot recognize refugees as such the
positive and humanitariansteps initiated by the Indian judiciary has bridged the gap toa
considerable extent.
Judicial remedy available for refugees in India:
The Indian courts have made tremendous advancementsin promoting the interest of
refugees. The role of judiciary,particularly the Supreme Court of India, in interpreting the
Indian Constitution in a manner so as to expand the scope ofvarious provisions to include
within their fold principles ofUniversal Declaration of Human Rights, 1948, and thusensure
effective protection of score of refugees. IndianConstitution not only guarantees some basic
human rights toaliens, non-citizens or refugees, but also confers remedy ifviolations of right
take place. Under article 32 of theconstitution, whenever there is a violation of
fundamentalright any person can move the Supreme Court for anappropriator remedy.
Similarly, the right to move a high courtunder article 226 for the enforcement of any such
right orother legal right is also available to citizens and non-citizensalike. The activist role of
the apex court has now dramaticallychanged. A number of rights which, though are not
specifiedin part III of the Constitution by name as fundamental rightshave been regarded as
fundamental by the Hon'ble SupremeCourt by enlarging the meaning and scope of
namedfundamental rights. So Supreme Court has always been very,helpful in giving
remedies against violation of human rights of refugees.
Judicial interpretation: case law in India
In India, the judiciary has played a very important rolein protecting refugees. The
refugees have reasonable access tothe Indian judiciary. The judicial opinion in India
asexpressed in numerous recent judgments of the SupremeCourt of India demonstrates that
the rules of internationallaw and municipal law should be construed harmoniously,and only
when there is an inevitable conflict between thesetwo laws should municipal law prevail over
international laws C.J. Verma, In Vishaka Vs. state of Rajasthan (1997)6SCC 241, at 251).

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So the judiciary in India has played acommendable role in the protection of human rights
generallyand rights of refugees in particularly and the judiciary willcontinue to do favour of
protecting the rights and interest ofrefugees in the absence of refugee specific laws in India.
Presented below are cases where the Indian courts haveprovided protection to the
refugees in the territory of India.Judgments on various refugee issues.
In Hans Muller of Nuremberg Vs. Supdt. Presidency jai
The court held that even if there is a requisition and agood cause for extradition, the
government is not bound toaccede to the request, because section 3(1) of the ExtraditionAct
gives the government discretionary power. The Extraditiontakes place only under a treaty
and person whose extraditionis demanded under the treaty are handed over to therequesting
state for prosecution and punishment. Theprocedure for extradition is laid down under the
municipallaw. Despite the treaty, a state may refuse extradition.
Further, if the treaty does not enlist a particular offencefor which extradition was
sought, but authorizes the Indiangovernment to grant extradition for some additional
offencesby inserting a general clause to this effect, extradition may still be granted,
In Dawood Vs. Deputy Commission of police.
Court held that a passport by itself is not a conclusiveproof of nationality. But it is
accepted as a proof of the fact,by international agreement and the comity of nations,whatever
is the probative value of it, a person who hasdeliberately applied for a passport affirming him
to be aPakistan national cannot be heard to say that he did so underfalse pretences.
Further, it was held that he acted with deliberation inrenouncing his Indian citizenship
and accepting Pakistannationality, and was precluded from saying that he had nointention of
making Pakistan his abode or residence. Byaccepting a Pakistan passport he caused the
sovereign stateof Pakistan to accepting him as its citizens and to extendprotection and safety
to him as a Pakistan citizen. Undersection 3 of the Foreigners Act the Central Government
hasgot the power to order foreigner to leave Indian Territory.
In state Vs. Ibrahim Nabiji

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The court decided that the respondent had not infringedrule 7 of the foreigner's order.
Because when he enteredIndia, he was not a foreigner and was by law not required toobtain a
permit; and by overstaying the period prescribed bythe Visa, also did not infringe rule 7. The
respondent couldnot be held otherwise guilty of the infringement of theprovision of section
14 because there was no lawful directionissued against him requiring him under section 3,
subsection(2) class (c) of the Foreigner's Act to leave India evenif the respondent was a
foreigner under the Foreigner's Act asamended under the Foreigner's Law (amendment) act,
1957.
Further under section 3 of the Foreigners act, the power to make an order either
against an individual or against aclass generally, is conferred upon the Central
Governmentand under section 12 of the Foreigner's Act the power to makeorders under
section 3 May be delegated to a subordinateauthority. Therefore, the order passed by the
districtsuperintendent of police, must be regarded as anunauthorized and failure to carry out
the requisitioncontained in that order cannot be penalized under section 14of the Foreigner's
Act.
In Mohd. Meah Vs. Secy. Political department Union Territory ofTripura
It was decided by the court that the district magistrateof Tripura had no power under
section 3, unless there was adelegation of authority under section 3(3) and section (12)
todeport a foreigner or to issue a notice to such person underthe foreigner's act. It was held
that this is not a case of mereirregularity but of total lack of jurisdiction for the
districtmagistrate to issue a notice of deportation.
In Afjal Baig Vs. the state
It was held that though a citizen of India the petitionerlost his citizenship by virtue of
article 7 of the Constitutionwhen he went to East Pakistan and remained for a longperiod. If
after his return to India he wanted to acquireIndian citizenship, it was open to him to apply to
theauthorities concerned, under section 5 of the citizenship act.
Section 9 (i) of that act makes it clear that once a citizen ofIndia has acquired
Pakistan citizenship between the 26 January 1950 and the date of commencement of the act

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heceased to be a citizen of India. He could not, therefore, claimIndian citizenship unless the
Central government after dueinquiry register him as a citizen of India under section 5 of the
citizenship act.
In A.H. Magermans Vs. S.K. Ghose
It was decided by the court that the registration offoreigners act, 1939, under which
the Registration ofForeigners rule, 1939 were framed by the central government,is an act to
provide for the registration of foreigners in Indiaand for no other purpose. Besides, Rule 7(3)
of the Rulesprovides that the certificate of registration would be valid solong as the foreigner
does not leave India. But it does notprovide for the converse proposition, namely that so long
as aforeigners held a certificate of registration he would have aright to remain in India or that
no order could be madedirecting him to leave India. The proviso to Rule 13(1)provides for
cancellation of a certificate of registration.
Even assuming that the Certificate of Registrationconferred upon the party a right to
remain in India, such aright must be subject to the terms of the permit which wasissued to the
foreigner under clause (7) of that order. So aforeigner cannot claim to reside in this country
unless aresidential permit has been obtained by him, merely becausehe has obtained a
certificate of registration under theregistration of Foreigners Rules, 1939.

The chief settlement commissioner Vs. Om Prakash.

It was decided by the apex court that under ourConstitutional system the authority to
make the law is vestedin Parliament and the State legislatures and other law makingbodies
and whatever legislative power the executiveadministration possesses must be derived
directly from thedelegation of the legislature and exercised validly only withinthe limits
prescribed. Further court held that the notion ofinherent or autonomous law-making power in
the executiveadministration is a notion that must be emphatically rejected,with all its defects,
delays and inconveniences. Men havediscovered no technique for long preserving free
governmentexcept that the executive be under the law, and that the lawbe made by
parliamentary deliberations.
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In our Constitutional system, the Central and mostcharacteristic feature is the concept
of rule of law whichmeans in the present context, the authority of law courts totest all
administrative action by the standard of legality. Theadministrative or executive action that
does not meet thestandard will be set aside if the aggrieved person brings theappropriate
action in the competent court. The court heldthat the expression 'displaced person' or the
word 'refugee'has been used in the relevant enactments with reference to aperson who has
migrated to India as a result of disturbancesor fear of disturbances or the partition of the
country.
Therefore, if a person had died before such migration, hecould not come within the
meaning of the expression'displaced person' or the word 'refugee' under the relevantstatutory
enactments.

In Anwer Vs. State ofJ& K

The apex court held that when a foreigner enters Indiaillegally and is ordered to leave
India but fails to do so, hisarrest for purposes of deportation does not fall under article22. The
foreigner concerned had no right to enter and remainwithin India. The constitutional
protection against illegaldeprivation of personal liberty construed in a practical waycannot
entitle non-citizens to remain in India contrary to thelaw governing the foreigners.

Shishwala Pal Vs. Union of India

In this petition under article 226 and 227 of theconstitution of India, the petitioner
have prayed for a writ ofmandamus restraining the respondents from treating them asforeign
National of Bangladesh or their stay in India asunauthorized.
It was held by the court that mere long stay which isunauthorized does not confer
citizenship rights. Aspetitioners were permitted to enter India as refugees, it willbe deemed
that they are foreigners. Moreover, they have notshown any certificate of registration, except

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a solitarydocument from the ministry of home affairs in respect of theobjection specifically

taken up by the respondent.
It is not their case that they are Indian citizens duringthe commencement of the
Constitution of India etc, asenvisaged under article 5, 6 and 7 of the constitution ofIndia. The
expression 'foreigner' has been has been defined inthe foreigners act, 1946, which means 'a
person who is not acitizen of India.' Section 3 of the Foreigners Act, says that theCentral
Government may by order make provisions eithergenerally or with respect to all foreigner or
with respect toany particular foreigners into India or their departure therefrom or their
presence or continued presence therein, and inparticular and without prejudice to the
generality of theforegoing power, inter-alia, may order, that a foreigner shallnot enter India
or shall enter India only at such times and bysuch route, subject to the conditions as
prescribed and shallremove himself to, and remain in, such area in India as maybe
prescribed.

In Luis De Raedt Vs. Union of India

The apex court held that the fundamental rights of theforeigner is confined to article
21 for life and liberty and doesnot include the right to reside and settle in India, as mentioned
in article 19(l)(e), which is applicable only to thecitizens of this country.
It was held by the Constitution Bench in Hans Muller ofNuremburg Vs. Supdt.
Presidency jail, that the executiveGovernment has unrestricted right to expel a foreigner so
farthe right to be heard is concerned there cannot be any hardand fast rule about the manner
in which a person concernedhas to be given an opportunity to place his case.
In State of Arunachal Pradesh Vs. Khudiram Chakma
The court held that foreigners also enjoy somefundamental rights under the
constitution of this country.

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The fundamental rights of the foreigner is confined to Article21 for life and liberty
and does not include the right to resideand settle in this country, as mentioned in Article
19(1) (e),which is applicable only to the citizens of this country. Theapex court held that as
such Article 19(l)(d)and (e) are notavailable to foreigners because those rights are conferred
tothe citizens. Certainly, the machinery of Article 14 cannot beinvoked to obtain that
fundamental right. Rights underArticle 19 (1) (d) and (e) are expressly withheld to
foreigners.
It was stated in this case that the foreigners had noright to seek a permanent place of
abode in that area andauthority had every right requiring them to shift. It is true,that this court
in Louis De Raedttook the view that evenforeigner has a fundamental right, but that
fundamental rightis confined only to article 21 and does not in clued the rightto move freely
throughout and to reside and stay in any partof the territory of India. Further it was held by
the court that"It has long been recognized that persons who reside on theterritory of country
of which they are not nationals possess aspecial status under international law. State has
traditionallyreserved the right to expel them from their territory and torefuse to grant them
certain rights which are enjoyed by theirown nationals. Nevertheless, once lawfully admitted
to aterritory, they are entitled to a certain minimum rightsnecessary to the enjoyment of
ordinary life".
In National Human Rights Commission Vs. The State of Arunachal
Pradesh
The Supreme Court reiterated the principle thatprotection of life and liberty are
guaranteed rights of evenaliens in Indian Territory. We are a country governed by therule of
law. Our Constitution confers certain rights on everyhuman being. Every person is entitled to
equality before thelaw and equal protection of the law. So also, no person can bedeprived of
his life or personal liberty except according to theprocedure established by law. Thus the
state is bound toprotect the life and liberty of every human being, be he acitizen or otherwise,
and it cannot permit anybody or group ofpersons for example the Students Union of

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ArunachalPradesh, threaten the Chakmas to leave the state, failingwhich they would be
forced to do so.
No state government worth the name can tolerate suchthreats by one group of persons
to another group of persons,it is duty bound to protect the threatened group from suchassaults
and if it fails to do so, it will fail to perform itsconstitutional as well as statutory obligations.
It was furtherstated that the state government must act impartially andcarry out its legal
obligations to safeguard to life, health andwell-being of Chakma residing in the state without
beinginhibited by local politics.
In Luis de Raedt Vs. Union India and Khudiram Chakma's
Case the court held that foreigners are entitled to protectionof Article 21 of the
constitution Again in this case courtasked the government to protect the refugees with all
themight at its command, against the imminent force threatenedby the local population.
In Chairman, Railway Board Vs. Chandrimadas &Other
The Supreme Court held that where a foreign national, aBangladeshi Woman was
gang raped compensation can begranted under public law (Constitution) for violation
offundamental right on the ground of domestic jurisdictionbased on constitutional provisions
and Human Rightsjurisprudence. The court said that "where public functionariesare involved
and that the matter relates to the violation offundamental rights or the enforcement of public
duties theremedy would be available under the public law, notwithstanding that a suit could
be filed for damages underprivate law". It was more so when it was not a mere violationof an
ordinary right of a person but the violation offundamental right was involved. As petitioner
was a victim ofrape which is violation of the fundamental rights of a person guaranteed under
article 21 of the constitution.
As regards the question whether fundamental rights are available to a foreign
nationals, or not, the court held thatthe relief can be granted to the victim for two reasons-
firstlyon ground of human rights jurisprudence founded on theUniversal Declaration of
Human Rights, provisions fromconvention on the Elimination of All Forms of
DiscriminationAgainst Women (CEDAW), and secondly our constitutionguarantees all the

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basic and fundamental human rights setout in the Universal Declaration of Human Rights to
itscitizens and other person.
This case may be called as a land mark in taking thejurisprudence of human rights on
the highest level placing itsdecision on protection of human dignity. Another
importantfeature of this judgment is that it opened the doors for Publicinterest Litigation
(PIL) in case of a foreign national. In thiscase Supreme Court has set up a right precedent
inenforcement of human rights of the refugees.
Following are type of protection that the Indian Courtshave been provided to
refugees.
Physical Security
Indian Courts have decided in a number of cases thatthe constitutional protection of
life and liberty must beprovided to refugees. In the cases of Luis de Readt {(1991) 3sec 554}
and Khudiram (Nos. 1994) Supp. {1} SCC 615), TheSupreme Court held that Article 21 of
the constitution ofIndia, which protects the life and liberty of India citizens, isextended to all,
including aliens:
The Supreme Court of India in the case of NationalHuman Rights Commission Vs.
State of Arunachal Pradeshrestrained the forcible expulsion of Chakma refugees from,
thestate (Civil WP No. 720: 1996 {1} Supreme 295). The SupremeCourt in its interim order
on Nov.2, 1995, directed the stategovernment to ensure that the Chakmas situated in
itsterritory are not ousted by any coercive action not inaccordance with the law. The court
directed the stategovernment to ensure that the life and personal liberty ofeach and every
Chakma residing within the state should beprotected. Non-Refoulement andthe Right of
Refugee Status
In a number of cases, Indian courts have protected therights of refugees where there
are substantial grounds tobelieve that their life would be in danger. There are caseswhere the
courts have ordered the life of refugees who are indanger to be safeguarded and have allowed
them to begranted refugees status by the United Nations HighCommissioner for Refugees
(UNHCR).

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In Zothansangpuri Vs. State of Manipur (Civil Rule No.981 of 1989) The Gouhati-
Imphal bench of the Gauhati HighCourt ruled that refugees have the right not to be deported
iftheir-life was in danger.In Dr. Malvika Karlekar Vs. Union of India (Criminal) 583of 1992
In writ petition, the Supreme Court held thatauthorities should consider whether refugee
status should begranted; and until this decision was made, the petitionershould not be
deported.
In Bogyi Vs. Union of India (Civil Rule No. 981 of 1989)The Gouhati High Court not
only ordered the temporaryrelease of a Burmese man from detention but approved hisstay for
two months so that he could apply to UNHCR forrefugee status (Civil Rule No. 1947/89
Gauhati High Court)
The case of U. Myat Kayew and Nayzan Vs. State ofManipur (Civil Rule No. 516 of
1991) has contributedsubstantially to India's refugee policy. It involved eightBurmese
people, aged 12 to 58 who were detained in theManipur Central jail in Imphal for illegal
entry. These peoplehad participated in the democracy movement, had voluntarilysurrendered
to the Indian authorities and were taken intocustody. The cases were registered under section
14 of theForeigners Act for illegal entry into India. They petitioned fortheir release, however,
to enable them to seek refugee statuswith UNHCR in New Delhi. The Gauhati High Court,
underArticle 21, ruled that asylum seekers, who enter India, even ifillegally, should be
permitted to approach the office of theU.N. high Commissioner to seek refugee status.
In Seyed Mohammadi Vs Union of India WP (Criminal)1450/1994. In this case where
in, the petitioner grantedrefugee status by the UNHCR and the court ruled that. "Thereis no
question of deporting the accused under thecircumstances".
The Supreme Court of India has in a number of casesstayed deportation of refugees
such as Maiwand's Trust ofAfghan Human Freedom. Vs. State of Punjaband N.D.Pancholi
Vs. State of Punjab &others.The Supreme Courtjudgment in the Chakma refuge case clearly
declared that noone shall be deprived of his or her life or liberty without thedue process of
law. Earlier judgments of the Supreme Courtin Luis De Readt Vs. Union of Indiaand also
state ofArunachal Pradesh Vs. Khudiram. Chakmahad also stressedthe same point.

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Right to Basic Amenities

In Digvijay Mote Vs. Governm.ent of India (V/rit Appeal No.354 of 1994), The High
Court of Karnataka in Bangalore,considering the rights of 150 Sri Lankan refugee
children,ordered the state to make the necessary arrangements toprovide basic amenities to
the refugee children in the campon humanitarian grounds.
In Majid Ahmed Abdul Majid Mohd. Jad Al-Hak Vs. Unionof India (Crl. WP No. 60
of 1997) The court held that basicnecessities, like food and medical care, must be
providedwhile in detention.
Forced Repatriation
In the matter Gurunathan and other Vs. Government of India The High Court of
Madras expressed its unwillingnessto allow any Sri Lankan refugees to be forced to return to
SriLanka against their will. The court stayed the repatriationprocess as it was not voluntary.
The court acknowledged the'Competence and impartiality' of the UNHCR.
In P. Neduraman and Dr. S. Ramadoss Vs. Union of India& State of Tamil Nadu
(1992)229 The madras High Courtemphasized the need to guarantee the voluntary character
ofrepatriation. The NHRC has also come to rescue of refugees"approaching it with their
complaints of violations of HumanRights".
Deportation on Grounds of National Security and CriminalActivities
The courts have ruled that refugees can be deported onthe grounds of national
security. In Mohammed Siddique Vs.Government of India (Civil Rule Writ No. 405/98), The
courtallowed the deportation of refugees under the Foreigners Actof 1946 if they were found
indulging in activities undesirableand prejudicial to the security of India.
In Khadija Vs. Union of India (Crl. WP 658 of 1997), TheHigh Court of Delhi in New
Delhi ruled that international lawand conventions cannot be applied to refugees indulging
incriminal activities, and consequently, they can be repatriated or deported.
Right to leave (Return)

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The court has upheld a refugee's right to leave thecountry. In Nuang Muang Mye
Nyant Vs. Government of India(C.W.P. No. 5120/ 94) and Shar Aung Vs. Government of
India(GI. WP No. 110 of 1948),
The court ruled that even those refugees against whomcases were pending for illegal
entry should be provided exitprovided exit permits to enable them to leave the country for
Third-country resettlement.
Application of international laws for the protection of Refugees
In Ktaer Abbas Habib Al Qutafi Vs. Union of India (CA3433 of 1998), The High
Court of Gujarat in AhmadabadSummarized the principles that have emerged from
Indianjudicial precedents. This included conformity withinternational conventions and
treaties. Although notenforceable, the government is obliged to respect them, putthe power of
the government to expel a foreigner is stillabsolute. Meanwhile, Article 21 guarantees the
right to lifefor non-citizens International covenants and treaties whicheffectuate these
fundamental rights can be enforced. Theprincipal of non-refoulment is encompassed in
Article 21 solong as it is not prejudicial to national security. Under Article51 (c) and 253,
international law and treaty obligations are tobe respected as long as they are consistent with
domesticlaw.
In the case of Khy Htoon and other Vs. State ofruled that refugees have fundamental
rights under Article14,21 and 22 of the Indian Constitution.
'Leave India' Notices: The administrative authorities videsec. 3 of the Foreigners Act,
1946 may issue Leave IndiaNotice to refugees who have failed to obtain extension of
theirtravel permits, or who are ordered to be deported by thecourt. In the case of Gurinder
Singh &Karamjit Singh Vs.Union of India. WP (Criminal) 871/1994.
Afghan Sikhs of Indian origin, who had fled persecutionfrom Afghanistan, were
registered as refugees with UNHCR inNew Delhi. They were issued Leave India Notices by
theForeigners Regional Registration Office to leave India within 7days of receipt of the
notice. The only remedy under suchcircumstances is through legal action in the

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appropriatecourt. In this case criminal writ petition was filed in thePunjab and Haryana High
at Chandigarh and interim stay ofthe leave India notice was obtained.
Need for National Refugee Law in India
The Indian legal framework has no uniform law to dealwith its huge refugee
population, and has not made mayprogress towards evolving one either; until then, it chooses
totreat incoming refugees based on their national origin andpolitical considerations, based on
their national origin andpolitical considerations, questioning the uniformity of rightsand
privileges granted to refugee communities. Indeed, theNational Human rights Commission
(NHRC) has submittednumerous reports urging the promulgation of a national law or at least,
making changes or amendments to the outdatedForeigners Act (1946), which is the current
law consulted byauthorities with regard to refugees and asylum seekers. Sothe absence of a
well defined national refugee law has createda number of anomalous situations.
It is important to note that India is not a signatory tothe 1951 convention relating to
the status of refugees or its1967 protocol. This makes India's international position interms of
treatment of refugees, disputable. However, it isequally important to note that India is a
signatory to variousother international and regional treaties and conventionsrelating to
Universal Human Rights and refugees. Takingthis into account, it is clear that India respect
internationaltreaties on the treatment of people residing within itsterritory. But, without
having any refugee policy and anyseparate national legislation on the treatment of refugees
andfurthermore India's hesitation to sign any internationalconvention or even accept any
regional or national frameworkto deal with refugees as it is of the firm belief that the issueof
accepting or rejecting refugees is a unilateral decision and,therefore, there is no real need to
pass an entirely new law toconsider multilateral and bilateral agreement,
unnecessarilytarnishes its image at the international level.
Although India's past efforts in dealing with massinfluxes has been commendable, its
geopolitical position inthe subcontinent makes it a preferred destination for asylumseekers
and refugees. In India refugees, like all foreigners,have free access to the court for the
protection of their lifeand liberty. India does not discriminate between refugees onthe basis of

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race, political affiliation or religion all refugeeshave the complete freedom to practice their
religion. However,in the absence of a specific municipal law incorporating andprotecting the
rights of refugees, it is left to the courts toread the provisions of the international human
rightsinstruments into the provisions of Article 14, 21 and 25 ofthe constitution. Court to
protect the rightsof refugees, though commendable, has its limitations. Thedangers of judge-
centric solutions are that in many cases theoutcome of the case would depend on the outlook
of aparticular judge to the issue before him. There indeed cannotbe any certainty or
uniformity in judicial activism. There isthus, an urgent need for a legal framework to provide
for theprotection, rehabilitation and repatriation of refugees. Nodoubt judicial creativity has,
to some extent, minimized therigours of the refugees but legislation alone will provide
aneffective and permanent solution.
As stated earlier, no current Indian law refers directly torefugees. The primary
documents dealing with the treatmentof foreigners/refugees in India are the Registration of
Foreigners Act, 1939, the Foreigners Act, 1939, The ForeignersAct, 1946, and the
Foreigners Order, 1948. Both the Act andthe Order affirmatively grant the Indian
government powers torestrict the movement of foreigners inside India, to mandatemedical
examinations, to limit employment opportunities, andto control the opportunity to associate,
and the ability to"refoul" or "return", refugees. The Refugees Conventionhowever, bars all
these actions. Therefore, the policy ofIndia toward refugees already matches
internationalstandards and is, consequently, not in need of any change isnot acceptable to
watchdog agencies like the UNHCR and theNHRC. NHRC is of the view that it is essential
that Indiadevelops a national policy and possibly a national law, fullyin consonance with the
1951 UN Convention and the 1967Protocol.
The need for a refugee law is immediate. The uniformtreatment of refugees is a must
as long as India continues toaccept asylum seekers across its porous borders. The need fora
stable and secure guarantee of refugee protection in Indialed to the establishment of an
Eminent Persons Group (EPG),chaired by former Chief Justice P.N. Bhagwati, to suggest
amodel law for refugee protection. The draft of this proposedlaw was adopted by the Fourth

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Annual Meeting of theRegional Consultation at Dhaka in 1997. The India-specificmodal law

was born out of this regional consultative processto provide statutory protection to refugees
in the diversesouth Asian region. Despite technical or specific misgivingsabout the model
law, there has been unanimity about itsnecessity and widespread acceptance of its use as
aframework for future protection. But the bill was never tabledin Parliament.
The restrictions and unequal treatment imposed on therefugee population by the
Indian government isdiscriminatory and tarnishes its human rights record, whichis not
outstanding in any case. There is an urgent need forIndia to incorporate its various treaty
obligations in thedomestic law of the land to make their obedience by theexecutive
enforceable directly. It is time now to provide for anappropriate legal framework to process
matters in respect ofdetermination of refugee status, protection from refoulment,and
treatment during their stay as refugees.
Such a legal framework can make provisions for thefollowing:
• A person shall be excluded from refugee status if he or sheis convicted for a crime
against peace, a war crime, or acrime against humanity;
• No refugee or asylum seeker shall be expelled or returnedto a place where there are
reasons to believe his or her lifeof freedom would be threatened;
• Where an application is made by an asylum seeker for thedetermination of refugee
status, pending suchdetermination, he shall not be deported or nor anyrestrictions be imposed
save and except those that arenecessary in the interests of sovereignty and integrity ofIndia or
maintenance of public peace and order.
• The determination of refugee status shall be by a RefugeeCommittee to be
prescribed over by the Commissioner ofRefugees who shall be a sitting or retired High Court
judge.
• During the determination of his refugee status, theasylum seeker shall be entitled to
all assistance includingthat of an interpreter and legal practitioner; and
• An appeal shall lie against the order of the RefugeeCommittee.While India has a
human rights law regime, an effectiveNational Human Rights Commission and an

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innovative,creative and active judiciary, yet now there is urgent need fora domestic refugee
law regime. India now needs toconsolidate, streamline and harmonize into legislation, itslong
tradition and experience in accommodating the inflow ofrefugees, its faith in the principle of
non-refoulment, and itscommitment to uphold the principles of international humanrights.

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