1

HUMAN RIGHTS: NATURE AND

CONSTITUENTS
Unit Structure
1.0 Objectives
1.1 Introduction
1.2 Meaning of Human Rights
1.3 Definition of Human Rights
1.4 Characteristics and Nature of Human Rights
1.5 Check your Progress
1.6 The Evolution of Human Rights
1.7 Natural Rights Theory
1.8 Check your Progress
1.9 Landmarks in Development of Human Rights
1.9.1 The Magna Carta, 1215
1.9.2 The English Bill Of Rights, 1689
1.9.3 American Declaration of Independence, 1776
1.9.4 The U.S. Bill of Rights, 1791
1.9.5 The French Declaration of the Rights of Man and Of
the Citizen, 1789
1.9.6 Declaration of International Rights of Man, 1929
1.9.7 The UN Charter, 1945
1.9.8 The Universal Declaration of Human Rights, 1948
1.9.9 International Covenants on Human Rights
1.9.10 Check your Progress
1.10 Classifications of Rights
1.10.1Check your Progress
1.11 Summary
1.12 Keywords
1.13 Unit End Questions
1.14.Reference

1.0 OBJECTIVES
After studying the unit you will be able

To know the meaning and definition of Human Rights

To be aware of the characteristics of Human Rights
To learn about evolution and landmarks in the
development of Human Rights
To get acquainted with the classifications of Human
Rights

1.1 INTRODUCTION
In the present chapter a brief introduction of the genesis of human
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rights will be taken into consideration. The historical background,

the definition of human rights, the characteristics and nature of
human rights will be dealt briefly. The landmarks in the
development of human rights will be traced so as to know about the
evolution of such rights. Further the classification of human rights
will also be studied briefly.

1.2 MEANING OF HUMAN RIGHTS

Human beings are born equal in dignity and rights. These are moral
claims which are inalienable and inherent in all individuals by virtue
of their humanity alone, irrespective of caste, colour, creed, and
place of birth, sex, cultural difference or any other consideration.
These claims are articulated and formulated in what is today known
as human rights. Human rights are sometimes referred to as
fundamental rights, basic rights, inherent rights, natural rights and
birth rights.

1.3 DEFINITION OF HUMAN RIGHTS

Dr. Justice Durga Das Basu defines “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 consideration. Durga Das Basu’s
definition brings out the essence of human rights.

The Universal Declaration of Human Rights (UDHR), 1948, defines

human rights as “rights derived from the inherent dignity of the
human person.” Human rights when they are guaranteed by a
written constitution are known as “Fundamental Rights” because a
written constitution is the fundamental law of the state.

1.4 CHARACTERISTICS AND NATURE OF HUMAN

RIGHTS

Following are the characteristics of human rights:

1. Human Rights are Inalienable - Human rights are conferred on

an individual due to the very nature of his existence. They are
inherent in all individuals irrespective of their caste, creed, religion,
sex and nationality. Human rights are conferred to an individual
even after his death. The different rituals in different religions bear
testimony to this fact.

2. Human Rights are Essential and Necessary - In the absence

of human rights, the moral, physical, social and spiritual welfare of
an individual is impossible. Human rights are also essential as they
provide suitable conditions for material and moral upliftment of the
people.
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3. Human Rights are in connection with human dignity - To

treat another individual with dignity irrespective of the fact that the
person is a male or female, rich or poor etc. is concerned with
human dignity. For eg. In 1993, India has enacted a law that forbids
the practice of carrying human excreta. This law is called
Employment of Manual Scavengers and Dry Latrines (Prohibition)
Act.

4. Human Rights are Irrevocable: Human rights are irrevocable.

They cannot be taken away by any power or authority because
these rights originate with the social nature of man in the society of
human beings and they belong to a person simply because he is a
human being. As such human rights have similarities to moral
rights.

5. Human Rights are Necessary for the fulfillment of purpose of

life: Human life has a purpose. The term “human right” is applied to
those conditions which are essential for the fulfillment of this
purpose. No government has the power to curtail or take away the
rights which are sacrosanct, inviolable and immutable.

6. Human Rights are Universal – Human rights are not a

monopoly of any privileged class of people. Human rights are
universal in nature, without consideration and without exception.
The values such as divinity, dignity and equality which form the
basis of these rights are inherent in human nature.

7. Human Rights are never absolute – Man is a social animal and

he lives in a civic society, which always put certain restrictions on
the enjoyment of his rights and freedoms. Human rights as such are
those limited powers or claims, which are contributory to the
common good and which are recognized and guaranteed by the
State, through its laws to the individuals. As such each right has
certain limitations.

8. Human Rights are Dynamic - Human rights are not static, they
are dynamic. Human rights go on expanding with socio-eco-cultural
and political developments within the State. Judges have to
interpret laws in such ways as are in tune with the changed social
values. For eg. The right to be cared for in sickness has now been
extended to include free medical treatment in public hospitals under
the Public Health Scheme, free medical examinations in schools,
and the provisions for especially equipped schools for the physically
handicapped.

9. Rights as limits to state power - Human rights imply that every

individual has legitimate claims upon his or her society for certain
freedom and benefits. So human rights limit the state’s power.
These may be in the form of negative restrictions, on the powers of
the State, from violating the inalienable freedoms of the individuals,
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or in the nature of demands on the State, i.e. positive obligations of

the State. For eg. Six freedoms that are enumerated under the
right to liberty forbid the State from interfering with the individual.

1.5 CHECK YOUR PROGRESS

1. Define Human Rights.
__________________________________________________
__________________________________________________
2. In what different ways are human rights referred to?
__________________________________________________
__________________________________________________
3. Why is it said that human rights are dynamic?
__________________________________________________
__________________________________________________
4. How does human right limit the state powers?
__________________________________________________
__________________________________________________

1.6 THE EVOLUTION OF HUMAN RIGHTS

The evolutions of human rights have taken place over centuries.

Man had to struggle hard in order to achieve the ultimate goal –
living with dignity – which still has to be realized in various societies.
India itself is an example where women, children, dalits, bonded
labourers, etc, is trying hard to be a part of mainstream. Inspite of
all these, the world recognized the U.N.Charter of 1945 which
states that human rights are inalienable aspect of mankind. The
origin of human rights may be traced to the theory of Natural Rights
derived from the concept of Natural Law, as propounded by ancient
Greek Stoic Philosophers and further developed by Thomas
Hobbes and John Locke. The American and French Revolution
gave further impetus to the struggle of human rights. The evolution
and development of human rights in the international context can
be traced to the Magna Carta and the English Bill of Rights followed
by the French Declaration and the American Bill of Rights.

The twentieth century witnessed the crystallization of the

philosophy of Human Rights when the United Nations adopted the
UN Charter, 1945, The Universal Declaration of Human Rights,
1948 and the International Covenants on Human Rights with further
emphasis to protection of rights of Women, Abolition of Slavery,
Racial Discrimination, Civil and Political Rights, Economic, Social
and Cultural Rights and most importantly the Rights of children.
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In India the drafters of Constitution took care to incorporate Human

Rights for its own citizens as well as for the aliens.

1.7 THE NATURAL RIGHTS THEORY

Though the expression ‘human rights’ had its origin in international

law, which is not older than the World War II, the concept of an
individual having certain basic, inalienable rights as against a
sovereign State had its origin in the doctrines of natural law and
natural rights. Thomas Hobbes (1588 – 1679), John Locke (1632 –
1704) and Jean-Jacques Rousseau (1712 – 1778) are the three
main thinkers who developed the Natural Rights theory.

Thomas Hobbes was the first champion of the theory of ‘natural

rights’. In his celebrated book, ‘Leviathan’, he advocated that no
individual could ever be deprived of the right to life, which he
enjoyed in the state of nature. He asserted that all human beings
are equal, without any consideration.

John Locke developed the idea further in his book, ‘Two Treatises
Government.’ He argued that every human being has a natural right
to life, personal liberty, and property, and that no governmental
authority has power to deprive individuals of these rights because
they had enjoyed them even before the creation of the civil or
political society.

Rousseau is regarded as the greatest master of natural law school.

In his celebrated book, ‘The Social Contract’, Rousseau states that
“All men are born free but everywhere they are in chains.”
Rousseau proclaimed that men are bestowed with inalienable rights
of liberty, equality and fraternity. These concepts became the basis
for the French Declaration of the Rights of Man and of the Citizen.

Paine an American revolutionary thinker developed the doctrine of

natural rights without linking it to the social contract theory. He held
that rights are natural, because they were bestowed upon man by
God himself. These rights exist independently of the legal code of
any country.

1.8 CHECK YOUR PROGRESS

1. State the ultimate goal of human beings?

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__________________________________________________
2. Signify the importance of U.N.Charter of 1945.
__________________________________________________
__________________________________________________
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3. State the Natural Right according to Thomas Hobbes.

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__________________________________________________
4. Bring out the importance of Rousseau’s theory of Natural Right
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__________________________________________________
5. What care did the drafters of Indian constitution take?
__________________________________________________
__________________________________________________

1.9 LANDMARKS IN DEVELOPMENT OF HUMAN

RIGHTS
The important landmarks in the progress of human rights are as
follows:

1.9.1 The Magna Carta, 1215.

The Magna Carta, also known as the Great Charter, of 1215 is
the most significant constitutional document of all human history.
The main theme of it was protection against the arbitrary acts by
the king. The 63 clauses of the Charter guaranteed basic civic
and legal rights to citizens, and protected the barons from unjust
taxes. The English Church too gained freedom from royal
interferences. King John of England granted the Magna Carta
to the English barons on 15th June 1215. The king was
compelled to grant the Charter, because the barons refused to
pay heavy taxes unless the king signed the Charter.

1.9.2 The English Bill of Rights, 1689.

The next source and avenue of the development of the philosophy
of human rights is the English Bill of Rights, enacted on December
16, 1689, by the British Parliament. The British Parliament declared
its supremacy over the Crown in clear terms. The English Bill of
Rights declared that the king has no overriding authority. The Bill of
Rights codified the customary laws, and clarified the rights and
liberties of the citizens.

It lays down the twin foundations, viz., the supremacy of the law,
and the sovereignty of the nation, upon which, the English
constitution rests.

1.9.3. American Declaration of Independence, 1776.

The first colonies to revolt against England were the thirteen States
of America. These states declared their independence from their
mother country on 4th July 1776. The declaration charges the king
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with tyranny and affirms the independence of the American

colonies. The declaration of independence has great significance in
the history of mankind as it justified the right to revolt against a
government that no longer guaranteed the man’s natural and
inalienable rights.

1.9.4. The U.S. Bill of Rights, 1791.

The U.S. Constitution was enacted on 17th September 1787. The
most conspicuous defect of the original constitution was the
omission of a Bill of Rights concerning private rights and personal
liberties. Madison, therefore proposed as many as twelve
amendments in the form of Bill of Rights. Ten of these were ratified
by the State legislatures. These ten constitutional amendments
came to be known as the Bill of Rights. The overall theme of the Bill
of Rights is that the citizen be protected against the abuse of power
by the officials of the States.

1.9.5. The French Declaration of the Rights of Man and of the

Citizen, 1789

The fall of Bastille and the abolition of feudalism, serfdom and class
privileges by the National Assembly ushered France into a new era.
On 4th August 1789, the National Assembly proclaimed the Rights
of Man and of the Citizens. The Rights were formulated in 17
Articles.

The Declaration of the Rights of Man and of the Citizen has far
reaching importance not only in the history of France but also in the
history of Europe and mankind. The declaration served as the
death warrant for the old regime and introduced a new social and
political order, founded on the noble and glittering principles.
Further the declaration served as the basis for many Constitutions,
framed in different countries, where the framers gave top priority to
human rights.

1.9.6. Declaration of International Rights of Man, 1929.

After World War I, questions about human rights and fundamental
freedoms began to be raised. In 1929, the Institute of International
Law adopted the Declaration of International rights of Man. The
Declaration declared that fundamental rights of citizen, recognized
and guaranteed by several domestic constitutions, especially those
of the French and the U.S.A constitutions, were in reality meant not
only for citizens of the states but for all men all over the world,
without any consideration.

1.9.7. The UN Charter, 1945.

The United Nations Charter was drafted, approved and
unanimously adopted by all the delegates of the 51 states, who
attended the United Nations Conference at San Francisco. The UN
Charter contains provisions for the promotion and protection of
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human rights. The importance of the Charter lies in the fact that it is
the first official document in which the use of ‘human rights’ is, for
the first time traceable and which also recognized the respect for
fundamental freedom.

1.9.8. The Universal Declaration of Human Rights, 1948.

The Universal Declaration of Human Rights was adopted by the
General Assembly of the United Nations on 10th December, 1948.
The Declaration consists of thirty Articles and covers civil, political,
economic, social and cultural rights for all men, women and
children. The declaration however is not a legally binding
document. It is an ideal for all mankind.

1.9.9. International Covenants on Human Rights

The Universal Declaration of Human Rights, 1948 was not a legally
binding document. It lacked enforcements. This deficiency was
sought to be removed by the U.N. General Assembly by adopting in
December, 1966, the two Covenants, viz,

1. International Covenant on Civil and Political Rights and

2. International Covenant on Economic, Social and Cultural Rights.
The two International Covenants, together with the Universal
Declaration and the Optional Protocols, comprise the International
Bill of Human Rights. The International Bill of Human Rights
represents a milestone in the history of human rights. It is a modern
Magna Carta of human rights.

1.9.10 CHECK YOUR PROGRESS

1. What is the Magna Charta also known as?
__________________________________________________
__________________________________________________

2. How is the American Declaration of Independence, 1776

justified?

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__________________________________________________

3. State the importance of the French Declaration of the Rights of

Man and of the Citizen, 1789.

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__________________________________________________

4. What is the importance of the UN Charter, 1945?

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5. Name the two covenants adopted by the U.N. General

Assembly

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1.10 CLASSIFICATIONS OF RIGHTS

Human rights can be broadly classified on five bases. They are:
Civil Human Rights
Political Human Rights
Economic Human Rights
Social and Cultural Human Rights
Development Oriented Human Rights

a. The seventeenth, eighteenth and nineteenth centuries

contributed and strengthened the civil and political rights, which
assured civil and political liberties. The Civil and Political Human
Rights are collectively known as ‘Liberty Oriented Human
Rights’ because they provide, protect and guarantee individual
liberty to an individual against the State and its agencies. Liberty
rights also referred to as Blue Rights are the First Generation of
Human Rights.

b. The twentieth century contributed to the development and

strengthening of economic, social and cultural rights and the
rights of minorities as well. These rights aim at promotion of the
economic and social security through economic and social
upliftment of the weaker sections of the society. These rights are
essential for dignity of personhood as well as for the full and free
development of human personality in all possible directions.
These rights ensure a minimum of economic welfare of the
masses and their basic material needs, recognized by the
society as essential to civilized living.

The economic, social and cultural rights, including the rights of

the minorities are collectively known as the “Security Oriented
Human Rights” because these rights collectively provide and
guarantee the essential security in the life of an individual. In the
absence of these rights, the very existence of human beings
would be in danger. These are also known as the “Second
Generation of Human Rights”. They are also referred to as Red
Rights or also as positive rights. These rights along with the Civil
and Political Rights were declared by the Universal Declaration
of Human Rights and later were recognized by (1) the Covenant
on Civil and Political Rights and (2) the Covenant on Economic,
Social and Cultural Rights in December 1966.
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c. The Development Oriented Human Rights are of a very recent

origin in the late twentieth century. These rights enable an
individual to participate in the process of all round development
and include environmental rights that enable an individual to
enjoy the absolutely free gifts of nature, namely, air, water, food
and natural resources, free from pollution and contamination.
These are known as the Third Generation of Human Rights or
Green Rights. They are also called as Solidarity Rights, because
their implementation depends upon international cooperation.

Solidarity rights are of special importance to developing

countries, because these countries want the creation of an
international order that will guarantee to them the right to
development, the right to disaster relief assistance, the right to
peace and the right to good government.

Rights for Citizens and for all persons.

All human rights can be further classified into two distinct
classes on the basis of the eligibility of individual, who can
exercise them as under:
1. The rights for citizens and 2. The rights for all persons
Certain rights are conferred only on citizens. For eg. In the
Indian constitution provisions in Articles 15, 16, 19 and 29 are
limited to citizens. The remaining provisions in Part III of the
Indian Constitution are applicable to citizens and aliens alike.

1.10.1 CHECK YOUR PROGRESS

1. Name the three generations of human rights.
__________________________________________________
__________________________________________________
2. What is meant by civil and political rights.
__________________________________________________
__________________________________________________
3. Bring out the meaning of development oriented right.
__________________________________________________
__________________________________________________
4. Differentiate between rights of citizens and for all persons.
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1.11 SUMMARY

Human rights are sometimes referred to as fundamental rights,

basic rights, inherent rights, natural rights and birth rights. They are
essential for all individuals to protect themselves against the State
or public authority or against members of its own class. Human
rights are characterized as inalienable, connection with human
dignity and necessary for the purpose of fulfillment of human life.

The evolutions of human rights have taken place over centuries.

The twentieth century witnessed the crystallization of the
philosophy of Human Rights when the United Nations adopted the
UN Charter, 1945, The Universal Declaration of Human Rights,
1948 and the International Covenants on Human Rights with further
emphasis to protection of rights of Women, Abolition of Slavery,
Racial Discrimination, Civil and Political Rights, Economic, Social
and Cultural Rights and most importantly the Rights of children.

Human rights have been classified in different bases. Each right

signify the awareness and emancipation of a particular century. For
eg. The development oriented rights belong to the twentieth century
which is essential to maintain world peace as well as right to clean
and wholesome environment along with environment protection and
improvement.

1.12 KEYWORDS
Universal Declaration of Human Rights (UDHR), Inalienable,
U.N.Charter, Magna Carta, Natural Rights International Covenants
on Human Rights, Social and Cultural Human Rights, Development
Oriented Human Rights, Solidarity rights.

1.13 UNIT END QUESTIONS

1. Define the term human rights. Bring out any six characteristics
of human rights.

2. Who were the propagators of natural rights theory? What did

they state in their theories?

3. State in detail the landmarks in the development of human

rights.

4. Explain the theory of three generations of human rights.

5. Discuss in detail the different bases of classifying rights.

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1.14 REFERENCE:
A Textbook on Foundation Course II prescribed syllabus by the
following authors:

a. K.T.Basantani., Human Rights, Science, Technological

Development, Sheth Publishers, 2008.

b. Prof. Manohar R. Wadhawani., Some Aspects of Human

Rights, Science and Technology and Ecology – Chetana
Publishers, 2008.

c. Prof. Manohar R. Wadhawani, The Philoosphy and Practice of

Human Rights – Chetana Publishers,2003.

d. Mahesh Bhagwat, Prakash Dongre and Meghana Shinde –

Chakne., Foundation Course II – Sheth Publishers, 2008.
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FUNDAMENTAL RIGHTS IN INDIAN
CONSTITUTION AND INTERNATIONAL
COVENANT
Unit Structure
2.0 Objectives
2.1 Introduction
2.2 Human Rights in India
2.2.1 Fundamental Right in Indian Constitution
2.2.2. Description of Fundamental Right
2.2.3 Fundamental Rights
2.2.4 Check your Progress
2.3 Specific Fundamental Rights and the Covenant
2.3.1 Table
2.3.2 Check your Progress
2.4 Unspecified Fundamental Rights
2.4.1 Check your Progress
2.5 Reservation to the Rights in the Covenant
2.5.1 Emergency Provision in India and In the Covenant
2.5.2 Check your Progress
2.6 Summary
2.7 Keywords
2.8 Unit end questions
2.9 Reference.

2.0 OBJECTIVES
After studying the unit you will be able

To know about the scope of subject and Human Rights

in India
To be aware about the provisions and Classification of
Fundamental Rights as enshrined in the Indian
Constitution
To obtain information about Specific and Unspecified
Fundamental Rights
To learn about the International Covenant on Civil and
Political Right

2.1 INTRODUCTION

Human rights are essential for the overall development of

individuals. The Constitution of India makes provisions for basic
rights also known as Fundamental Rights for its citizens as well as
for aliens. A distinction is made between Specific Fundamental
Rights and Unspecified Fundamental Rights. The rights enshrined
in the Constitution also at times are at par with the International
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Covenant on Civil and Political Right (ICPPR) which is an

international treaty. The ICCPR is applicable to States rather than
to individual. Therefore, rights enshrined therein become the
obligation of a state only when they have been incorporated in the
State’s internal law.

2.2 HUMAN RIGHTS IN INDIA

India got its independence in the year 1947, just a year before the
UDHR was adopted. The founding fathers of Indian constitution
were all aware that India’s freedom struggle had taken place in the
context of the demand for basic human rights. Yet economic
backwardness of the country would make it impossible to
immediately satisfy all the aspirations of people. So, they adopted a
pragmatic approach. They described certain rights as “fundamental
rights” and laid down certain other rights as fundamental duties of a
citizen were also enumerated.

The Supreme Court of India is the guarantor of the rights according

to the Constitution. The court takes into account fundamental
duties while interpreting the constitutional right.

2.2.1 FUNDAMENTAL RIGHTS IN INDIAN CONSTITUTION

Rights are classified mainly in three broad categories: (a) Civil (b)
Political (c) Economic and Social. Fundamental Rights in India
recognize certain civil rights. Certain Political and Economic and
Social rights are recognized by other provisions in the Constitution.
In Part III, the Indian constitution provides a number of rights to
individual. These rights have been called “Fundamental Right”. The
expression “Fundamental” shows that these rights are basic right.

The Supreme Court of India recognizes Fundamental Right as

“natural right”. Chief Justice Patanjali Shastri has referred to
fundamental right as “those great and basic right which are
recognized and guaranteed as the natural right inherent in the
status of a citizen of a free country”. Chief Justice Subha Rao states
that “fundamental rights are the modern name for what has been
traditionally known as natural right”.

2.2.2. DESCRIPTION OF FUNDAMENTAL RIGHTS

Singh and Shukla describe the nature of Fundamental Right in the
Indian Constitution, thus; “A fundamental right, as defined in the
Constitution, differ from a non- fundamental right in one vital
respect; a fundamental right (subject to the qualification defined in
the Constitution itself) is inviolable in the sense that no law,
ordinance, custom, usage or administrative order can abridge or
take away a fundamental right. A law which violates any of the
fundamental right is void. They are binding on the legislature as
well as the Executive. A fundamental right cannot be taken away
even by a constitution amendment if it forms the basic structure of
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the Constitution.

Exhaustive enumeration of fundamental right: Part III, of the

Indian Constitution exhaustively enumerates the fundamental right.
Therefore, the Parliament cannot incorporate any additional
fundamental Right. Any expansion of such rights must rest on
judicial interpretation.

Fundamental rights are enshrined in Articles 12-35 of the

Constitution. Brief overviews of the fundamental rights are made as
follows.

2.2.3 FUNDAMENTAL RIGHTS

The various civil and political human rights and also the economic,
social and cultural human rights have been guaranteed by the
Constitution of India and re-christened as the “Fundamental
Rights”.

The provisions of Part III of the Constitution (Arts. 12 – 35) enshrine

the Fundamental Rights, which are more elaborate than those of
any other existing written constitutions dealing with Fundamental
Rights. The constitution as amended by Forty fourth Amendment
Act, 1979, classifies Fundamental Rights under the six categories.
The fundamental rights are elaborated as follows:

Article 12 defines the “State” as “In this part, unless the context
otherwise requires, “the State” includes the Government and
Parliament of India and the Government and the Legislature of
each of the States and all local or other authorities within the
territory of India or under the control of the Government of India.”

Article13 lays down certain restriction on violating fundamental

right. The important significance of this provision lies in the fact that
it makes explicit provision for judicial review of legislative
enactments and executive actions as to their conformity with
guaranteed fundamental rights.

Right to Equality (Articles 14 – 18)

The five articles that cover the right to equality are

a. Equality before law and equal protection of law – Article 14

Article 14 consists of two parts namely equality before law and
equal protection of the laws. Equality before law means that no
individual should be given any special privilege by the state.
Equal protection of the laws means the right to equal treatment in
equal circumstances. Equality before the law also means treating
unequal unequally. For example, the Supreme Court has
recommended that the ‘creamy layer’ of the Other Backward
Classes’ (OBC) should not be given the benefit of reservation.
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b. Prohibition of discrimination on ground of religion, race,

caste, sex or place of birth - Article15
There are four aspects of this right mentioned in following Clauses
of this Article.

i. Prohibition of discrimination - Article15, Clause (1): This article

prohibits the state from discrimination against any individual or
group of individuals. The principle of non – discrimination is based
on equality and dignity.

ii. Access to public places - Article15, Clause (2): This right

provides that no citizen can be denied access to public places,
places of entertainment or the use of wells, tanks, and roads that
are maintained out of State funds.

iii. Protective laws for women and children - Article15, Clause

(3): A positive discrimination for women and children is made in the
Indian context. Thus provision for reservation for women, free
education for children etc. is provided.

iv. Reservation for backward classes – Article15, Clause (4):

The constitution recognizes the Scheduled Caste, Scheduled
Tribes and Other Backward Classes as weaker sections of the
population. It authorizes the state to make special provisions for the
advancement of these sections of the society.

c. Equality of opportunity in matters of public Employment -

Article16:
The aim of article 16 of Indian Constitution is to provide equal
opportunity to all citizens in employment offered by the state or its
agencies. This article has five clauses

i. Equality of opportunity – Article 16, Clause (1 )wherein it is

stated that equality of opportunity should be given to all citizens in
matters relating to employment or appointment to any office under
the state.
ii. Prohibition of discrimination - Article 16, Clause (2)
This clause prohibits discrimination on grounds only of religion,
race, caste, sex, descent, and place of birth, residence or any of
them in respect of any employment of the state.

iii. Residential requirements - Article 16, Clause (3)

It allows the Parliament to make laws that require residential
(domicile) requirements in a State for public employment or
appointment.

iv. Protective laws - Article 16, Clause (4)

This Clause allows the Parliament to make protective laws for
appointment of backward classes of citizens who are not
adequately represented in the services of the state.
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v. Preference to certain persons in religious institutions -

Article 16, Clause (5)
This clause prescribes that the Parliament can make laws which
require only a person professing a particular religion to be
appointed in a body or institution of that religion. For example, a
Hindu can only be appointed as a priest in a Hindu temple.

d. Abolition of Untouchability - Article17

This is a unique article that has been incorporated only in the
Constitution of India. Article 17 declares that not only Untouchability
has been abolished but it also makes any practice and propagation
of Untouchability in any form punishable in accordance with the law.

e. Abolition of Titles - Article18

The Clause of the Article prohibits the State from conferring any title
at all upon any person. However the State is not prevented from
awarding military distinctions, such as Mahavir Chakra, Param Vir –
Chakra etc. for honoring men for their acts of valour or academic
distinctions.

II. Right to Freedom (Articles 19 – 22)

a. Six fundamental freedoms - Article19

Article 19 (1), as amended by the Constitution (Forty Fourth)
Amendment Act, 1979, guarantees to all citizens the following six
freedoms:

i. Freedom of speech and expression

ii. Freedom of peaceful assembly
iii. Freedom of forming associations or unions
iv. Freedom of movement throughout the territory of India
v. Freedom of residence and settlement in any part of the territory
of India, and
vi. Freedom of profession, occupation, trade or business.

b. Protection in respect of conviction for offences - Article20

This right guarantees protection in respect of conviction for
offences, to those accused of crimes. There are three clauses to
this article.

(i) Protection against ex – post, facto legislation – It means that

a person cannot be punished under such a law, for his actions
which took place before the passage of the law.

(ii) Protection against double punishment – it says that no

person shall be prosecuted for the same offence more than once.

(iii) Protection against self incrimination – this clause states that

no person accused of an offence shall be compelled to be a witness
against himself.
 18

c. Protection of life and personal liberty - Article21

Article 21 of the Indian Constitution recognizes the right to life and
personal liberty. It provides that “no person shall be deprived of his
life or personal liberty except according to procedure established by
law.”

d. Protection against arrest and detention in certain cases. -

Article22
The provisions of Article 22 are complimentary to those of Article
21. Article 22 has two parts; the first part consisting of clauses (1)
and (2), deals with persons, who are arrested under ordinary
criminal law and the various rights, they are entitled to; and the
second part consisting of the remaining clauses (3) to (7), is
concerned with persons, who are detained under a law of
preventive detention.

III. Right against Exploitation (Articles 23-24)

a. Prohibition of traffic in human beings and forced labour -
Article23
The article prohibits traffic in human beings and ‘begar’ and other
similar forms of forced labour.

b. Prohibition of employment of children - Article24

Article 24 of the constitution prohibits child labour. Children below
fourteen years of age cannot be employed in any factory or mine or
in any other hazardous employment.

IV. Right to Freedom of Religion (Articles 25 – 28)

a. Freedom of Conscience and Religion - Article25
Article25 reflects the spirit of secularism and recognized freedom of
religion to everyone in India.

b. Freedom to manage religious affairs - Article26

It recognizes the right of every religious order to establish and
maintain institutions for religious and charitable purposes and
manage its own affairs in matters of religion.

c. Freedom as to payment of taxes for promotion of any

particular religion - Article27
The state shall not compel any person to pay any taxes for the
promotion of maintenance of any particular religion or religious
denomination.

d. Freedom to attend religious instruction in education

Institution - Article28
This article prohibits imposition of religious beliefs by educational
institutions on those who are attending them.
Taken together the four Articles (25 to 28) establish the secular
character of democracy.
 19

V. Cultural and Educational Rights (Article 29)

a. Cultural right of the individual as well if minorities - Article29
This Article states that every section of the society has the right to
conserve its distinct language, script or culture.

b. Right of minorities to establish and administer Educational

institution - Article30
The State cannot discriminate in granting aid to any educational
institution on the ground that it is under the management of a
religious or linguistic minority.

VI. Right to constitutional Remedies (Article 32)

Article 32 provides for the Constitutional Remedies, under which,
one can move the Supreme Court for the enforcement of the
Fundamental Rights and this provision itself is made one of the
Fundamental rights. This is something unique. Dr. Babasaheb
Ambedkar considered it as the very heart and soul of the
constitution.

The other rights that are guaranteed in the Indian Constitution are
as follows.

r. Right of property - Article31

t. Power of Parliament to modify the right - Article33
u. Restriction on right while martial law is in force- Article34
v. Parliament empowered to make to enforce certain
Fundamental Right - Article35

By the 44th Amendment Act, 1978, the right to property was

eliminated from the list of Fundamental Right. However though it is
not a fundamental right, it is still a constitution at right. It is also a
human right. This was recent ruling by the Supreme Court, while
dismissing an appeal filed by the Karnataka Financial Corporation
Challenged a State High Court order.

2.2.4 CLASSIFICATION OF FUNDAMENTAL RIGHT

Right enumerated in Arts 14-15 of part 3 have been classified in
several ways.

1. Topic-wise classification: The Constitution itself classified the

Fundamental Right under seven groups. These are:
a) Right to equality-Article14-18
b) Right particular freedom-Article19-22
C) Right against exploition-Article23-24
d) Right to freedom of religion-Article25-28
e) Cultural and educational right-Article29-30
f) Right to property (Article31)
g) Right to constitutional remedies-Article32-35
Of these, the Right to property has been eliminated by the 44th
Constitution Amendment Act.
 20

2. Right of citizens vs. those of all persons: Some of the

Fundamental right can be enjoyed by citizens alone. Right
enumerated in Article15, 16, 19 and 30 belong to this category.
Other fundamental rights are granted to any person-citizen or
foreigner.

3. Prohibition vs. benefits: Some of the Fundamental Rights are

prohibition on the state. So, they are negatively expressed. For
instance, Article14 says, “The State shall not any person equality
before the law……” Other rights confer some benefits upon the
individual. That is why they are positively worded. The right to
religious freedom (under Article25), for instant, is a positive right.

4. Classification on the basis of extent of limitation: Some of the

Fundamental Right imposes limitations on the Executive. Other
curbs the legislative power. Fundamental Right under Article21 lay
down limitation on the Executive. But they do not curtail legislative
power. On the other hand, right guaranteed by Arts.15, 17, 18, 20,
and 24 impose absolute limitation. Even the Legislature is
powerless to regulate such right.

5. Rights against State action vs. rights of private individuals:

Most of the Fundamental Rights are guarantees against State
action. For instance, the right guaranteed by Article 19 and 21 are
available against state action. However, part 3 of the Constitution
does include certain rights which can be invoked against the State
as well as against private individuals. Prohibition of untouchability
(Article17) and prohibition of traffic in human being (Article23) are
examples of such right.

2.2.4 CHECK YOUR PROGRESS

1. Define ‘Human Rights’.
__________________________________________________
__________________________________________________

2. List the broad categories of rights as guaranteed by the Indian

constitution.
__________________________________________________
__________________________________________________

3. Enumerate the types of Fundamental rights as given in the

Indian Constitution.
__________________________________________________
__________________________________________________

4. What is meant by Freedom of Religion?

__________________________________________________
__________________________________________________
 21

5. State the different classification of Fundamental Rights.

__________________________________________________
__________________________________________________

2.3 SPECIFIED FUNDAMENTAL RIGHT AND THE

COVENANT
Many right specifically mentioned in the Indian Constitution (called
specified Fundamental Right) are also laid down in the Covenant on
Civil and Political Right. Table 2.3.1 shows the Article of the Indian
Constitution and those of the Covenant where similar rights have
been enshrined.

Table 2.3.1

Right Indian Covenant on

constitution Civil & Political
Right
Equality before Law Article14 Article14(1)
Prohibition of Article15 Article26
discrimination
Equality of opportunity to Article16(1) Article25(a)
public service
Freedom of speech and Article19(1) (a) Article19(1)&(2)
expression
Right for peaceful Article19 (1) Article21
assembly (b)
Right to freedom of Article19 (1) Article22(1)
association (a)
Right to move freely within Article19.(d)& Article22(1)
the territory of a state (e)
Protection in respect of Article 20(1) Article15 (1)
conviction for offences
Protection from Article20(2) Art .14(7)
prosecution and
punishment
Not to be compelled to Article20(3) Article14(3) (g)
testify against himself
Right to life and liberty Article21 Article6(1) & 9
(1)
 22

Protection against arrest Article22 Article19 (2)

and detention in certain (3)& (4)
cases
Forced labour Article23 Article8(3)
Freedom of conscience Article25 Article18(1)
and religion
Right to effective and Article32 Article3
remedies

The Constitution of India came into force before the International

Covenant on Civil and Political Right. So, Fundamental Rights were
available to Indian citizen much before India ratified the Covenant.
With regard to specified Fundamental Right certain observation
that are made are as follows:

1. Right to life and personal liberty: The right to life (Article21)

does not mean mere animal existence. It means right to live with
full human dignity, without humiliation and deprivation, of denial
of any sort. There are various aspect of right to life and personal
liberty. Through its interpretation of Article 21 of the Constitution,
the Supreme Court has included the following main right:
Right to live with human dignity
Right against torture, cruel, inhuman or degrading treatment
or punishment
Right against arbitrary arrest, detention or exile
Right to speed trail
Right to free legal assistance
Right to compensation for wrongful arrest, detention and
torture
Right to reputation
Right to privacy
Right to shelter
Right to clean and wholesome environment
Right to safe and healthy condition of work
Right to health
Right to emergency medical assistant
Right to education till the age of 14
Freedom to go abroad

While making a comparison with right enumerated in the Covenant

on Civil and Political Right, these rights shall be referred as
unspecified fundamental right.

2. Right against self-incrimination: One of the implications of this

right (Article20 (3) of the Constitution) is that the accused is
offered protection against the tyranny of the State.

3. Freedom of speech and expression: There are two aspect of

 23

the right to freedom of speech and expression. There are :

Freedom of expression concerning public affairs
Freedom of expression as private right

The Freedom of expression concerning public affairs is

indispensable to the operation of democracy. In Bennet Coleman
case, Justice Mathew observed, “…… the freedom of expression….
is indispensable to the operation of democratic System. In a
democracy the basic premises is governors and the governed. In
order that governed may form intelligent and wise judgment, it is
necessary that they must be apprised of all the aspect of a
question……”

4. Right to assemble peacefully: Democracy loses its meaning if

people do not have a right to assemble. Article 21 of the ICCPR
states that there is a close relationship between freedom of
expression and freedom of assembly. However freedom of
peaceful assembly can be restricted if public policy so requires
but the limitations on this freedom must be just and necessary in
order with a democratic society.

5. Freedom of conscience and religion: The Indian Constitution

(under Articles 25 and 26) confers this right subject to some
limitation. The right to freedom of religion finds recognition in
Article 18 of the ICCPR and Article 18 of the UDHR, which
provides: ‘Everyone has the right to freedom of thought and
religion”. Unfortunately, some countries, which have ratified the
Covenant on Civil Political Right, do not allow genuine freedom
of religion. Pakistan, Iran and Afghanistan are example. In these
countries, Islam is the State religion; and the citizen does not
enjoy genuine freedom to convert to any other religion. Further,
several restriction are imposed on those citizens who do not
practice Islam.

6. Equal access to public services: Article 16(1) of the Indian

Constitution lays down that “there shall be equality of
opportunity for all citizens in matters relating to employment or
appointment to any office under the State”. This Article confers a
positive right. Article 16(2) project the negative aspect of the
same guarantee. It lays down that no citizen shall be held
ineligible to any office under the State on ground of religion,
race, caste, sex, etc. only.

7. Right to effective remedies : Effective remedies, by itself, are

not a right. But under Article 32, the Indian Constitution
provides this right for enforcement of fundamental right.

The importance of rights enumerated in Article 32 was

underlined by Dr. Ambedkar. He called these rights as the “very
soul and heart” of the Constitution. This Article confers a right
 24

on a person to move the Supreme Court directly.

2.3.2 CHECK YOUR PROGRESS

1. State the specified Fundamental Right.

___________________________________________________

___________________________________________________

2. What is meant by Right to Effective Remedies?

___________________________________________________

___________________________________________________

3. In which article of ICCPR and UDHR, does Freedom of

conscience and religion find mention?
___________________________________________________

___________________________________________________

2.4 UNSPECIFIED FUNDAMENTAL RIGHT

The Covenant on Civil and Political Right is an international treaty.

So it is applicable to States rather than to individual. Therefore,
rights enshrined therein become the obligation of a state only when
they have been incorporated in the State’s internal law. Several
judgments of Indian Court have held this.

However, even though several rights are not specified in Part III of
the Constitution as Fundamental Right, they have been regarded as
fundamental by Supreme Court. This has been done by emanation.

We list here those rights which are incorporated in the Covenant on

Civil and Political Right and which are available to the citizens of
India, even though they are not specifically mentioned in the
Constitution.

1. Right to privacy: This right is incorporated in the Covenant on

Civil and Political Right (ICCPR) under Article 21. This right covers
a number of other rights. No person shall be subjected to arbitrary
interference with his privacy, family, home or correspondence.

2. Right to travel abroad: The right to travel abroad is laid down

under Article 12(2) of the Covenant. But this right finds no place in
part 3 of the Constitution. However, in Maneka Gandhi v. Union of
India, it was held that the expression “personal liberty” was of the
widest possible amplitude. The Court held that no person can be
deprived of his right to go abroad unless there is a law made by the
state prescribing a procedure which cannot be arbitrary, unfair or
 25

unreasonable.

3. Right to speedy trial: Article 9(3) of the Covenant on Civil and

Political Rights lays down that anyone arrested or detained on a
criminal charge is entitled to trail within a reasonable time or to
release.

There is no specific mention of the right to speedy trail in the

India Constitution. However, the Supreme Court has held that this
right is covered by Article 21.

4. Right to free legal aid: Article 14(3) of the Covenant provides

for the right to free legal assistance. But Indian Constitution does
not provide this right. However, in M.H.Hoskat v. State of
Maharashtra, the Supreme Court held that free legal aid to poor
and deserving is a part of personal liberty under Article 21. The
court went even further in Sukh Das v. Arunachal Pradesh case. It
said that right of a poor person to legal aid exists even if it is not
demanded by him.

5. Right of prisoners to be treated with humanity: Article 10(1)

of the Covenant on Civil and Political Right lays down that all
persons deprived of their liberty should be treated with humanity
and with respect for the inherent dignity of the human person. But in
part 3 of the Indian Constitution there is no such provision.
Under Article 21, the Supreme Court has developed a whole
charter of dignity. The court has held that the dignity belongs to all
human beings, both inside and outside the prison.

6. Right not to be imprisoned for inability to fulfill a contractual

obligation: Article 11 of the Covenant on Civil and Political Right
lays down that no one shall be imprisoned merely on the ground of
inability to fulfil a contractual obligation. But in part 3 of the
Constitution this right is not specifically provided.

7. Right to compensation: Article 9(5) of the Covenant on Civil

and Political Right provides for enforceable right to compensation to
the victim of unlawful arrest or detention. But the Indian Constitution
has no such provision. However, the Supreme Court has held that
Compensatory justice comes into play in case of (a) wrongful arrest,
detention and torture and (b) custodial death.

8. Right to Information: Article 19(2) of Covenant on Civil and

Political Right provided for the right to Covenant on Civil and
Political Right provides for the right to seek, receive and impart
information. The Indian Constitution guarantees the freedom of
speech and expression as fundamental right under Article 19(1) (a);
but the right to information is not specifically mentioned. The Right
to Information Act was passed in 2005 by the Parliament. It is
proving to be a great weapon against corrupt and inefficient
 26

government officials.

2.4.1 CHECK YOUR PROGRESS

1. What is meant by the Covenant on Civil and Political Right

___________________________________________________
___________________________________________________

2. State the meaning to Right to privacy and how it is unspecified

Fundamental right.
___________________________________________________
___________________________________________________

3.Do prisoners have right to be treated with humanity

___________________________________________________
___________________________________________________

4. What is the importance of Right to Information?

___________________________________________________
___________________________________________________

2. 5. RESERVATION TO RIGHT IN THE COVENANT

While acceding to the Covenant on Civil and Political Right, India

has made certain reservation. These reservations, called
“Declaration”, restrict the application of the Covenant in our country.
The following are the declaration with regard to the Covenant on
Civil and Political Right:

1. Right on Self-Determination: Our country cannot allow the

right of self-determination to its people. This is because doing
so would result in secession of parts of the country from the
Union of India.

2. Right to freedom: Various rights to freedom have been

provided by Article 19(1) of the Indian Constitution. These right
are subject to restriction laid down in paras (2), (3), (4) and (5) of
the same Article. Similar right has also been recognized in the
Covenant; and the Covenant too lays down restriction in the
Covenant are different from those laid down in the Indian
Constitution.

3. Protection against arbitrary arrest and detention: With regard

to this right, provisions of Article 9 of the Covenant are slightly
different from those laid down by Article 22 of the Indian
 27

Constitution. For example, in India, this right is not available to

an enemy alien or to a person arrested or detained under a
preventive detention law.

Further, by Article 9(5), the Covenant provides enforceable right to

compensation to person who claims to be victims of unlawful arrest
or detention. But in the Indian Constitution there is no provision for
enforceable compensation. However, as we have stated in Section
6, Indian courts have held that the suit for compensation against
the State is maintainable in such cases. In view of this, this
reservation is irrelevant.

4. Right of aliens: Article 13 of the Covenant lays down several

safeguard with regard to expelling an alien from the territory of
India. Part 3 of the Declaration by India provides that the
Government of India reserves its right to apply its laws relating
to foreigners.

2.5.1 EMERGENCY PROVISION IN INDIA AND IN THE

COVENANT:

The Covenant on Civil and Political Right provides certain

safeguards when emergency has been declared by a State. In the
Indian Constitution no such safeguard have been explicitly laid
down. After the declaration of Emergency declared in India, the 44th
Amendment Act, 1978 has significantly changed the position. This
amendment has made the following main changes:

Article 19 would be suspended only in case of war or external

aggression.
The right to life and personal liberty would not be suspended during
emergency.

Of course, the above changes were made to prevent the abuse of

the fundamental right of people by the executive. But these
changes have also made the provision of the Constitution
consistent with the Covenant.

2.5.2 CHECK YOUR PROGRESS

1. What are reservations also known as?

___________________________________________________
___________________________________________________

2. State the different declaration with regard to the Covenant on

Civil and Political Right
___________________________________________________
___________________________________________________
 28

3. State the declaration by India with regard to the rights of

aliens.
___________________________________________________
___________________________________________________

2.6 SUMMARY

Fundamental rights have been bestowed to the citizens of India by

the founding fathers of the Indian Constitution. Fundamental rights
also known as the basic rights are recognized and guaranteed as
the natural rights. There are certain rights which are enjoyed by
Indian citizens due to wide interpretation of the Fundamental
Rights. Such rights are called as unspecified fundamental rights.
Several rights in the international Covenant on Civil and Political
Rights are similar to the specified Fundamental Rights in Part III of
the Indian Constitution. Certain unspecified rights enjoyed by the
Indian citizens are similar to those laid down in the Covenant on
Civil and Political Rights.

2.7 KEYWORDS

Specific Fundamental Rights, Unspecified Fundamental Rights,

Fundamental Freedoms, Protective laws, Covenant
Declaration, Aliens

2.8 UNIT END QUESTIONS

1. Why rights embodied in Part III of the Constitution, are called
Fundamental Rights?

2. Define Fundamental Rights. State the six major rights as

guaranteed by the Indian Constitution.

3. How is Freedom of Speech and expression guaranteed by the

Indian Constitution?

4. Analyze and discuss the Fundamental Rights relating to

Freedom of Religion.

5. Describe and illustrate any three unspecified fundamental rights

that are included in the Covenant on Civil and Political Rights.
6. Write short notes on
a. Right against exploitation.
b. Right to Information
c. Emergency provisions in the Indian Constitution and those
in the International Covenant on Civil and Political Rights.
 29

2.9. REFERENCE:

Nirmal, C.J., Human Rights in India, Oxford University

Press
A Textbook on Foundation Course II prescribed syllabus by the
following authors:
a. K.T.Basantani., Human Rights, Science, Technological
Development, Sheth Publishers, 2008.
b. Prof. Manohar R. Wadhawani., Some Aspects of Human
Rights, Science and Technology and Ecology – Chetana
Publishers, 2008.
c. Prof. Manohar R. Wadhawani, The Philosophy and Practice of
Human Rights – Chetana Publishers,2003.
d. Mahesh Bhagwat, Prakash Dongre and Meghana Shinde –
Chakne., Foundation Course II – Sheth Publishers, 2008.
 3
FUNDAMENTAL RIGHTS
AS PROTECTIVE LAWS
Unit Structure
3.0 Objectives
3.1 Introduction
3.2 Fundamental Rights as Protective Law’s
3.3 Protective Aspects of Directive Principles
3.4 Laws protecting Women’s Right
3.5 Laws protecting Children’s Right
3.6 The Rights of Scheduled Castes and Scheduled Tribes
3.7 Summary
3.8 Unit End Questions

3.0 OBJECTIVES
After reading the unit you will be able to
Understand that Fundamental Rights are protective.
Know that protective laws are made for the betterment of
weaker section of the society.

3.1 INTRODUCTION
Laws are made in the country with the view to give protection to its
citizen’s. The laws which are made should be able to provide a
shield or surety against any kind of encroachment on people’s
rights. The Parliament as well as the State Legislatures have
enacted protective and also repressive rights from time to time.
Some of the protective rights are discussed below.

3.2 FUNDAMENTAL RIGHTS AS PROTECTIVE LAWS

Provision of the Constitution as law: vide art. 367(1), the Indian

constitution makes the following clear:

1.Fundamental rights enshrined in Part III of the constitutions are

laws.
2.Unenumerated fundamental rights (rights that emanate from the
Fundamental Rights) are also laws.
The Directive Principal are non-justifiable. But the state is
commanded to apply them as laws.

The Constitution vide article 13 provides constitutional safeguards

against laws which are inconsistent with fundamental rights. The
Article takes into consideration and declares that all laws in force
 31

before the commencement of the Constitution shall be invalid if they

are inconsistent with the provisions of Part III of the Constitution
and it prohibits the state from enacting any law which takes away or
abridges the rights conferred by the Part III of the Constitution.

Fundamental rights act as Protective laws though they differ from

one another. The main differences among them are as follows:

1. Some fundamental rights are prohibition on the State, while

other confers benefits. Those that are prohibitions are
expressed negatively. For instance, Art. 14 says “they shall
not deny to any person equality before the law”. On the other
hand, those fundamental rights that confer some benefits are
positively worded. Thus, right to religious freedom is a
positive right.

2. Some of the fundamental rights impose limitations on the

Executive. Others curb the Legislative power.

3. Most of the fundamental rights are guarantees against state

actions. For instance, the rights guaranteed by the Art. 19
and 21 are available against state actions. In case such
rights are violated by private individuals, the person cannot
invoke constitutional remedies.

4. Some of the fundamental rights can be enjoyed by the

citizens alone. Rights enumerated in the Art. 15, 16, 19 and
30 belong to this category. Other fundamental Rights are
granted to other person, citizen or foreigner. Rights in Art 14,
20, 21,23,25,27 and 28 can be enjoyed by all persons on the
soils of India.

5. Some of the fundamental rights provide protection to

vulnerable groups. Examples of these rights are enumerated
in Art 17, 23, 24,25,28,29 and 30.

6. Article 32 of the constitution is the guardian of the

fundamental rights. This article enshrines the remedial
fundamental rights.

Legislation for enforcing Fundamental Rights: article 35 of

the constitution empowers the Parliament to make laws to
enforce certain Fundamental rights. Such power has been
denied to the states.

3.3 PROTECTIVE ASPECT OF DIRECTIVE PRINCIPLE

Though, Directive Principle is not enforceable, courts have
 32

attempted to strike a harmonious balance between fundamental

rights and directive principles. This has been done in the following
ways:

1. The courts have regarded Directive Principles as the

dependable index of restriction on fundamental rights.
2. In determining the scope and ambit of the Fundamental Rights,
the courts have not ignored the Directive Principles.
3. The court has regarded Directive Principle as a dependable
index of the public purpose.
4. The judiciary has enforced the directive principles under the
garb of wider interpretation of Fundamental Rights in several
cases.

Implementation of Directive Principles: Over the period of 58 years,

the government the union and the states have implemented large
number of Directives. For eg. The abolition of zamindari system,
free legal aid to the poor and the weaker section of the society, the
promotion of cottage industries, laws for compulsory primary
education, launching of different schemes with the intention to raise
the standard of living of people, particularly of the rural population,
the equal remuneration act and many such laws.

Check your Progress

1. Do you agree that all Fundamental Rights are protective? Give

reason for your answer.

__________________________________________________
__________________________________________________

2. State how the courts have tried to strike a balance between

fundamental rights and Directive Principles.

__________________________________________________
__________________________________________________

3. Give three examples of implementation of Directive Principles.

__________________________________________________
__________________________________________________

3.4 LAWS PROTECTING WOMEN’S RIGHT

Social reform legislation recognizing women rights has been
introduced in India since the British rule. After independence too the
 33

legislatures have enacted several laws for protecting women’s

rights and making provisions for the violation of their rights
punishable.

Progress towards gender equality:

The recognition of women’s right as human right became

international law when the U.N. General Assembly adopted the
CEDAW

(Convention on the Elimination of All Forms of Discrimination

Against Women ) on 19th December 1979.

With reference to India, the Indian Constitution prohibits

discrimination on the basis of sex. Yet, it recognizes that women
need special attention. The latter point is brought out by Articles 23
and 42. Article 23 prohibits traffic in human beings. By implication,
this means that women, children, etc. cannot be disposed of for
immoral purposes. Article 42 lays down that the State shall make
provision for securing just and humane conditions of work and
maternity relief. The Directive Principles of State Policy recognise
the right to Maternity benefits in Article 42 of the Constitution. The
Indian Parliament passed the Maternity Benefits Act in 1961. The
Maternity Benefits Act aims to regulate the employment of women
employees in certain establishments for certain periods before and
after child birth and provides for maternity and certain benefits. The
Domestic violence Act, 2005 provide protection to the wife or
female live - in partner from domestic violence at the hands of the
husband or male live-in partner or his relatives. Domestic violence
under the Act includes actual abuse or the threat of abuse whether
physical, sexual, verbal, emotional or economic. Harassment by
way of unlawful dowry demands to the woman or her relatives
would also be covered under this definition.

Among other things, Articles 14, 15, 16 and 39 guarantee

equality among the sexes.

Art.14 lays down equality before the law and equal protection of
the law.
Art.15 prohibits discrimination against any citizen on grounds of
religion, race, sex, etc.
Art.16 guarantees equality of opportunity in matters of public
employment. It says that no citizen shall be discriminated
against on ground of religion, race, caste, sex, etc.
Art. 39 guarantees equal pay for equal work for both men and
women.
 34

3.5 LAWS PROTECTING CHILDREN’S RIGHT

The children of our country are the most underprivileged in our

society. The poverty in our country is of such great magnitude that
children from underprivileged section of the society are forced to
work resulting in child labour. According to National Sample Survey,
the number of child workers have increased manifold in the society.
Further the condition in which a child is forced to work is no better
than that of slavery. The government of India have enacted the
following thirteen Acts to provide legal protection to all children.

1. The Child Marriage Restraints Act, 1929.

2. The Children Act, 1933.
3. The Employment of Children Act, 1938.
4. The Minimum Wages Act, 1948.
5. The Factories Act, 1951.
6.. The Plantation Labour Act, 1951.
7. The Indian Factories Act and Mines Act, 1952.
8. The Merchant Shipping Act, 1958.
9. The Apprentices Act, 1961.
10. The Atomic Energy Act, 1962.
11. The Beedi and Cigar Workers (Condition of Employment) Act,
1966.
12. The Shops and Establishments Acts, 1969 (Statewise)
13. The Child Labour (Prohibition and Regulations) Act, 1986.

Of these, the 1986 law is the most important one, wherein the Act
lists occupations and processes in which employment of children is
prohibited. Few of the hazardous occupations where a child cannot
be employed are as domestic servants, workers in dhabas,
restaurants, hotels, motels, teashops, resorts, spas or other
recreational centres. Further the working hours for a child to work is
also specified. It states that a child can work to six hours, including
an interval of at least one hour and chidren are not permitted to
work between 7 p.m. to 8 p.m.

3.6 THE RIGHTS OF SCHEDULED CASTES (SC) AND

SCHEDULED TRIBES (ST)

Definition of Scheduled Castes and Scheduled Tribes

It means those castes and tribes which have been declared by the
President’s order as being Scheduled Castes and Scheduled
Tribes. Untouchable castes, as they were earlier called are
declared as ‘Scheduled Castes’. Groups of people who have been
primarily living in forests are declared as ‘Scheduled tribes’. The
constitution declares in several Articles that these sections should
 35

be provided with special protection and special privileges. The aim

of such provisions is to put an end to the hardship caused to them
due to discrimination and exploitation.

Several laws have been passed by the Parliament and State

legislatures to protect the rights of the Scheduled Castes and the
Scheduled Tribes.

Article 17 of the Constitution abolishes untouchability and

declares it as punishable by law. Since the age old custom
continued even after independence, the Parliament made a
more stringent law in 1989 which is called The Scheduled
Castes and Scheduled Tribes(Prevention of Atrocities) Act.

As per Clause (4) of Article 15 permit’s the State to make

special provisions for the advancement of the Scheduled
Castes, Scheduled Tribes and other Backward Classes in
educational and technical institutions.

Reservations in Public services in made by Article 16(4) for

posts or appointments in favour of any backward class of
citizens which is not adequately represented in the Services
under the State. However, if there is only one post in a cadre,
reservation cannot be made.

Reservation of seats in Lok Sabha and State Assemblies is

made vide Articles 330, 332 and 334 of the Constitution of India.

Special laws are made to protect the tribal land which forbids the
sale or transfer of land to non-tribals.

Special provisions are laid down in the Fifth and Sixth

Schedules of the Constitution. The Fifth schedule empowers the
Governor to enact special legislation for protecting the
Scheduled Tribes from exploitation by moneylenders, regulating
allotment of land and prohibiting or restricting the transfer of
land in the Scheduled Areas. The Sixth Schedule deals with the
administration of Tribal areas in Assam, Meghalaya and
Mizoram.

3.7 SUMMARY

The Fundamental Rights enshrined in Part III are protective, though

they may be positively or negatively worded. Several protective
laws are made to take care of the weaker sections of the society.
Women, children, Scheduled Castes and Scheduled Tribes are
covered under protective laws. In fact these laws have played an
important role in empowering the weaker sections of the society
 36

and bringing them into mainstream. The judiciary too have taken
care to see that judgements delivered by them should be in favor
of the weaker section.

3.8 UNIT END QUESTIONS

1. State how the Fundamental Rights and unenumerated rights

are protective.

2. State the Constitutional provisions made for the protection of

women.

3 Enumerate the rights made by the Constitution for the

protection of children.

4. State the protective rights made for the Scheduled Castes and
Scheduled Tribes.
 4
REPRESSIVE LAWS
Unit structures
4.0 Objectives
4.1 Introduction
4.2 Preventive Detention Act, 1950
4.3 MISA & COFEPOSA
4.4 Armed Forces (Special Powers) Act 1958 (AFSPA)
4.5 National Security Act, 1980
4.6 Terrorist and Disruptive Activities (Prevention) Act
4.7 POTA
4.8 Summary
4.9 Unit End Questions

4.0 OBJECTIVES

After reading this unit you will be able to-

y Understand the relationship between environment &
community health
y The various types of diseases.
y Recognize some of the symptoms of diseases

4.1 INTRODUCTION
India has the lengthiest constitution in the world, with a section on
fundamental rights. It has supreme courts which has made some
landmark decisions in the protection of rights, which have been
admired by the other jurists of the world

In any democratic setup of society human freedom is given

utmost importance but sometimes this freedom is curtailed of .Their
rights are taken away by the so-called protector of the laws.
Framers of the Indian Constitution included provision for preventive
detention. History has shown that government has used repressive
powers and legislations to maintain its rule. Some laws are really
oppressive. They are termed as Black laws or repressive laws,
because law itself violates the human rights.

One of the first such law was the Madras Suppression of

Disturbance Act 1948, that authorized the use of military violence
against the peasants in Telangana, During the time 1947-1948
under the guise of fighting communalism and in the name of
upholding public order other laws were passed like Punjab
Disturbed Areas Act, Bihar Maintenance of Public order act,
Bombay Public Safety. These laws have given power to the security
forces detaining and arresting anyone. The provision for preventive
 38

detention Act is made to tackle the emergency situation caused by

war, external aggression and sometimes internal disturbance. The
rise of the Naxalite (Left wing extremists) movement prompted the
West Bengal Government to pass the West Bengal (Prevention) of
Violent Activities Act 1970. These laws are misused by the
authorities.

Today the problem of terrorism is creating an alarming situation.

It has to be tackled efficiently for which strict laws are required. The
Terrorist & Disruptive Activities (Prevention) Act (POTA), 2002, are
the acts which may be regarded as anti-terrorism laws.

4.2 PREVENTIVE DETENTION ACT, 1950

The Preventive Detention Act was passed in 1950. It was meant
only for one year, but it was renewed every year & expired on
December 31, 1969.

Main Features of this act are as follows:-

a. Preventive detention in permissible for a period of less than two
months.
b. The period of Preventive detention can be extended with the
approval of the Advisory Board.
c. Before detaining the person, the authority should clarify that the
detainee in likely to endanger the maintenance of public order.

Under this Act- preventive detention were to be referred to an

Advisory Board, within thirty days term the date of detention placing
before it the ground of detention, the representation made by
detainue etc.

4.3 MISA & COFEPOSA

MISA- (Maintenance of Internal Security Act, 1971) – Parliament
passed a new Act, called the Maintenance of Internal Security Act
known as MISA in 1971. This Act empowered the Union & the State
Governments to detain without trial any person, so as to prevent
him from doing anything that will endanger the security of India or
defence of India or the relation of India with foreign powers. A
person could be detained under MISA, for minimum period of one
year, again after expiration of this period new detention order can
be issued.

During the period of national Emergency (1975-1977), MISA

was used ruthlessly; thousands of people have been arbitrarily
arrested. Some notable political leaders like Lalu Prasad Yadav,
L.K. Advani, Atal Bihari Vajpayee, and Chandra Shekhar were
imprisoned under MISA. Finally in April 1978, the MISA was
repealed by the Parliament, the 42nd amendment Act of 1978
removed MISA.
 39

COFEPOSA – Conservation of Foreign Exchange & Prevention of

Smuggling Activities Act, 1974.
This act aimed at anti-social activities such as smuggling,
racketing in foreign exchange etc. (FERA) - Foreign Exchange
Regulation Act 1974 & (COFEPOSA)-Conservation of Foreign
Exchange & Prevention of Smuggling Activities Act 1974 – both
acts provided for preventive detention.

4.4 ARMED FORCES (SPECIAL POWERS) ACT 1958

(AFSPA) :
The Armed forces (Special Powers) Act 1958 was passed on
September, 11 1958 by the Parliament of India. It is considered as
the most repressive legislation in the history of India’s Parliament.
In the beginning the Armed forces (Assam & Manipur) special
Powers Ordinance , 1958- empowered the Governor of Assam &
the chief Commission of Manipur to declare the whole or any part of
Assam or the Union Territory of Manipur, as the case may be to
be a disturbed area. It was amended in 1972 to extend to all the
seven states in the north eastern region of India-viz. Assam,
Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram &
Nagaland. Now it applies to Jammu & Kashmir.

The enforcement of the AFSPA has resulted in also

innumerable incidents of arbitrary detention, torture, rape & looting
by security personnel. The following sections will help us to
understand AFSPA

y Section-4 of the Act states about the powers granted to

commissioned officer only. Jawan does not have these powers.
Section 4(a) states that officer can fire upon or otherwise use
force, even to causing death against any person who is acting in
contravention of any law or order for the time being enforced in
the disturbed area.
y Prohibiting the assembly of five or more persons
y The carrying of weapons or of things capable of being used
as means or of fire arm, ammunition or explosive
substances.

y The army can destroy property under section 4(b) if it is an arms

dump, a fortified position or shelter from where armed attacks
are made or are suspected of being made, if the structure is
used as training camp or as a hide out by armed gangs or
absconders. The armed forces personal can arrest anyone
without warrant, & enter or search premises without a warrant.

y Section 5 states that after the military has arrested someone

under AFSPA, they must hand over the person to the nearest
police station.
 40

y Section 6 - of this act gives special privileges for the army

personal, in the sense that it states no legal proceeding can be
brought against any member of the armed forces acting under
the AFSPA without the permission of the Central Government.
This provision rather reduces the accountability of the armed
personal and the

Check your progress

Q.1 The first repressive law passed in India was the ……………..
Q.2 A person could be detained under MISA, for minimum period
of ……..year
Q.3 The Armed forces (Special Powers) Act was passed on ……..
Q.4 What were the main provision of the Preventive Detention Act,
1950?
Q.5 When was MISA repealed and by which act?

__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________

4.5 NATIONAL SECURITY ACT, 1980

Like the preventive detention act of 1950 & the MISA, the national
security act is also about the preventive detention. This is extended
to the whole of India except Jammu & Kashmir.

This act empowers the central Government or the State

Government to undertake preventive detention of certain person:

y If satisfied from preventing any person from acting in any

manner prejudicial to the defense of India, the relation of
India with foreign powers or the security of India or

y If satisfied with respect to any foreigner with a view to

regulating his continued presence in India or with a view
to making arrangements for his expulsions from India.
 41

y It is necessary so to make an order directing that such

person be detained.
y As per the section 3 both the Central and State
Government can issue detention order for the Security of
India or for the security of a state.

y Section 3(3) states that period of detention shall not

exceed 3 months. However detention can be extended
but again it shall not be more than 3 months at a time.

Whenever State Government issues the detention order it shall

report the fact of detention to the Central Government within 7
days. They also have to report the grounds on which the order has
been made and also other details with regard to the necessity for
the order.

The detaining authority (Officer) is obliged to communicate to

detune, the grounds of the preventive detention as soon as
possible, but ordinarily not later than 5 days. However in
exceptional cases this period can be exceeded but not later than 15
days and in this situation the officer is required to record reasons
for exceeding the limitation of 5 days.

4. Execution of detention orders. A detention order may be

executed at any place in India in the manner provided for the
execution of warrants of arrest under the Code of Criminal
Procedure, 1973 (2 of 1974).

5. Power to regulate place and conditions of detention. Every

person in respect of whom a detention order has been made shall
be liable-- (a) to be detained in such place and under such
conditions, including conditions as to maintenance, discipline and
punishment for breaches of discipline, as the appropriate
Government may, by general or special order, specify; and (b) to be
removed from one place of detention to another place of detention,
whether within the same State or in another State, by order of the
appropriate Government: Provided that no order shall be made by a
State Government under clause (b) for the removal of a person
from one State to another State except with the consent of the
Government of that other State.

7. Powers in relation to absconding persons. (1) If the Central

Government or the State Government or an officer mentioned in
sub- section (3) of section 3, as the case may be, has reason to
believe that a person in respect of whom a detention order has
been made has absconded or is concealing himself so that the
order cannot be executed, that Government or officer may-- (a)
make a report in writing of the fact to a Metropolitan Magistrate or a
Judicial Magistrate of the first class having jurisdiction in the place
 42

where the said person ordinarily resides; (b) by order notified in the
Official Gazette direct the said person to appear before such officer,
at such place and within such period as may be specified in the
order.

Once a report under Section 7(1)(a) has been made. Several

provisions of the Criminal Procedure shall apply in respect of such
person and his property, (3) If any person fails to comply with an
order issued under clause (b) of sub-section (1), he shall, unless he
has suitable explanation for non compliance and that he had, within
the period specified in the order, informed the officer mentioned in
the order of the reason which rendered compliance therewith
impossible and of his whereabouts, be punishable with
imprisonment for a term which may extend to one year, or with fine,
or with both.

(4) Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974), every offence under sub-section (3)
shall be cognizable. Grounds of order of detention to be disclosed
to persons affected by the order section 8. affected by the order.
(1) When a person is detained in pursuance of a detention order,
the authority making the order shall, as soon as may be, but
ordinarily not later than five days and in exceptional circumstances
and for reasons to be recorded in writing, not later than ten days
from the date of detention, communicate to him the grounds on
which the order has been made and shall afford him the earliest
opportunity of making a representation against the order to the
appropriate Government.

(2) Nothing in sub-section (1) shall require the authority to disclose

facts which it considers to be against the public interest to disclose.
Constitution of Advisory Boards. (Sec. 9)

The Central Government and each State Government shall,

whenever necessary, constitute one or more Advisory Boards for
the purposes of this Act.

(2) Every such Board shall consist of three persons who are, or
have been, or are qualified to be appointed as, Judges of a High
Court

Reference to Advisory Boards. Sec, 10, the appropriate

Government shall, within three weeks from the date of detention of
a person under the order, place before the Advisory Board
constituted by it under section 9, the grounds on which the order
has been made and the representation, if any, made by the person
affected by the order, and in case where the order has been made
by an officer mentioned in sub-section (3) of section 3, also the
report by such officer under sub-section (4) of that section.
 43

Sec 11 deals with the role of Advisory board, the Advisory

board review the case placed before them and after hearing the
concerned person makes a report to the appropriate Government
within six weeks of detention of concerned person.

Action upon the report of the Advisory Board .Sec 12

(1) In any case where the Advisory Board has reported that there is,
in its opinion, sufficient cause for the detention of a person, the
appropriate Government may confirm the detention order and
continue the detention of the person concerned for such period as it
thinks fit.

(2) In any case where the Advisory Board has reported that there is,
in its opinion, no sufficient cause for the detention of a person, the
appropriate Government shall revoke the detention order and cause
the person concerned to be released forthwith.

Maximum period of detention. Sec13.

The maximum period for which any person may be detained in
pursuance of any detention order which has been confirmed under
section 12 shall be twelve months from the date of detention:
provided that nothing contained in this section shall affect the power
of the appropriate Government to revoke or modify the detention
order at any earlier time.

Protection of Action Taken in Good Faith-Sec-16

This section provides protection to the concerned authority which
took action in good faith. No suit or other legal proceeding shall be
against the Central or State Government or any person for anything
done or intended to be done in pursuance of this Act. Also , no
compensation is provided for anyone who happened to be wrongly
victimized under the Act.

4.6 TERRORIST AND DISRUPTIVE ACTIVITIES

(PREVENTION) ACT

The Terrorist and Disruptive Activities (Prevention) Act,

commonly known as TADA, was a law active between 1985 and
1995 (modified in 1987) for the prevention of terrorist activities in
Punjab. The TADA was meant to be a temporary provision with a
life of two years but it was extended every year .It was renewed in
1989, 1991 and 1993 before being allowed to lapse in 1995 due to
increasing unpopularity. This act was the first and the only
legislative effort by the Union Government to define and counter
terrorist activities. The Act's third paragraph gives a very thorough
definition of "terrorism":

"Whoever with intent to overawe the Government as by law

established or to strike terror in the people or any section of the
people or to alienate any section of the people or to adversely affect
 44

the harmony amongst different sections of the people does any act
or thing by using bombs, dynamite or other explosive substances or
inflammable substances or lethal weapons or poisons or noxious
gases or other chemicals or by any other substances (whether
biological or otherwise) of a hazardous nature in such a manner as
to cause, or as is likely to cause, death of, or injuries to, any person
or persons or loss of, or damage to, or destruction of, property or
disruption of any supplies or services essential to the life of the
community, or detains any person and threatens to kill or injure
such person in order to compel the Government or any other
person to do or abstain from doing any act, commits a terrorist act."
The Act established special courts or “designated courts” to try
those arrested for terrorist acts and disruptive activities. It conferred
broad discretion upon the authorities to arrest persons and to try
them. A special court known as TADA court was set up to hear the
cases and deliver judgements pertaining to 1993 Bombay
bombings.

TADA is not a preventive detention but it is a substantive

criminal law. The main difference between TADA and ordinary law
is that under ordinary law a detainee may be held in police custody
for a maximum period of 15 days before being transferred to judicial
custody whereas under TADA this period is up to 60 days. The
TADA has curtailed the provision of anticipatory bail contained in
Section 438 of the Criminal Procedure Code

It extends to the whole of India, and it applies also, -

a. to citizens of India outside India;
b. to persons in the service of the Government, wherever they
may be; and
c. to persons on ships and aircraft registered in India, wherever
they may be.

The main provisions of the TADA are as follows.

Whoever commits a terrorist act, shall, -

(i) if such act has resulted in the death of any person, be punishable
with death or imprisonment for life and shall also be liable to fine;

(ii) in any other case, be punishable with imprisonment for a term

which shall not be less than five years but which may extend to
imprisonment for life and shall also be liable to fine.

Whoever conspires or attempts to commit, or advocates, abets,

advises or incites or knowingly facilitates the commission of, a
terrorist act or any act preparatory to a terrorist act, shall be
punishable with imprisonment for a term which shall not be less
than five years but which may extend to imprisonment for life and
shall also be liable to fine.
 45

Section 4 Punishment for disruptive activities. - Whoever commits

or conspires or attempts to commit or abets, advocates, advises, or
knowingly facilitates the commission of, any disruptive activity or
any act preparatory to a disruptive activity shall be punishable with
imprisonment for a term which shall not be less than five years but
which may extend to imprisonment for life and shall also be liable to
fine.

Section 5- Possession of certain unauthorised arms, etc. in

specified areas – Where any person is in possession of any arms
and ammunition specified in Columns 2 and 3 of Category I or
Category III (a) of Schedule I to the Arms Rules, 1962, or bombs,
dynamite or other explosive substances unauthorisedly in a notified
area, he shall, notwithstanding anything contained in any other law
for the time being in force, be punishable with imprisonment for a
term which shall not be less than five years but which may extend
to imprisonment for life and shall also be liable to fine.

Where any shares in a company stand forfeited to the Government

under this sub-section, then, the company shall, notwithstanding
anything contained in the Companies Act, 1956, or the articles of
association the company, forthwith register the Government as the
transferee of such shares.

Where a person has been convicted to any offence punishable

under this Act or any rule made there under, the Designated Court
may, in addition to awarding any punishment, by order in writing,
declare that any property, movable or immovable or both, belonging
to the accused and specified in the order, shall stand forfeited to the
Government free from all encumbrances.

Section 15 of the article states that confession made by a

person before a police officer not below the rank of Superintendent
of Police is considered as admissible evidence.

The legislation was ultimately succeeded by the controversial

Prevention of Terrorist Activities Act (2002-04). The majority of
those detained under TADA were released on bail on the orders of
the Supreme Court and cases were reviewed by the "Review
Committees" which often recommended release. According to
official figures, as of December 1999 TADA charges against almost
24,000 people had been dropped as a result of such reviews.

Although TADA lapsed in May 1995 after immense international

pressure from the organs of the United Nations and non-
governmental organisations, it has been given retroactive effect and
people are still being charged and held according to its provisions.
People in Punjab and other States of India continue to be charged
under TADA retrospectively and continue to be harassed under it.
In addition, the position is that those wanted in connection with
 46

offences committed whilst TADA was in operation are subject to its

provisions.

4.7 THE PREVENTION OF TERRORIST ACTIVITIES

ACT (POTA)

POTA was an anti-terrorism legislation enacted by the Parliament of

India in 2002. The act replaced the Prevention of Terrorism
Ordinance (POTO) of 2001 and the Terrorist and Disruptive
Activities (Prevention) Act (1985-95) and was supported by the
governing National Democratic Alliance.

The act provided the legal framework to strengthen administrative

rights to fight terrorism within the country of India and was to be
applied against any persons and acts covered by the provisions
within the act. It was not meant as a substitute for action under
ordinary criminal laws.

The act defined what a terrorist act and a terrorist is and grants
special powers to the investigating authorities described under the
act. To ensure certain powers were not misused and human rights
violations would not take place, specific safeguards were built into
the act. The prominent of them are:

Investigation of an accused can be done by an officer of the

rank of Deputy Superintendent of police or higher.
Confessions made to the police must be recorded within 48
hours before a magistrate, who will send the accused for a
medical examination if there is a complaint of torture.

Under the new law detention of a suspect for up to 180 days

without the filing of charges in court was permitted. It also allowed
law enforcement agencies to withhold the identities of witnesses
and treat a confession made to the police as an admission of guilt.
Under regular Indian law, a person can deny such confessions in
court, but not under POTA.

The act was repealed in 2004 by the United Progressive Alliance

coalition

Prominent POTA cases

Vaiko, a prominent Tamil politician, was controversially arrested
under the POTA for his support to the Liberation Tigers of
Tamil Eelam.
After the Mumbai Blasts of August 2003, three suspects were
arrested under the POTA act.[1]. The act was repealed the
following year in 2004. In July 2006, a series of train
bombings occurred in Mumbai. In late November 2008,
Mumbai was hit with the worst terrorist attack in recent Indian
 47

history. This has led some people to question the wisdom of

repealing POTA, as there has been an escalation of terrorist
attacks of worsening magnitudes.
S.A.R. Geelani, a lecturer at Delhi University, was sentenced to
death by a special POTA court for his alleged role in the
2001 attack on the Indian Parliament. He was later acquitted
on appeal by the Delhi Bench of the High Court on a legal
technicality.
Syed Ali Shah Geelani, the leader of the Jamaat-e-Islami group,
arrested under POTA.
Raghuraj Pratap Singh, a.k.a Raja Bhaiya, a mobster and
Member of the Legislative Assembly of Kunda, India was
arrested on the orders of then Chief Minister, Mayawati
Kumari. He was sent to jail under POTA.
Check your progress
Q. 1 National Security Act, 1980 is extended to the whole of India
except ……….
Q.2 According to the National Security Act, 1980 the maximum
period for which any person may be detained in pursuance of
any detention order shall be ………….
Q. 3 Under the POTA investigation of an accused can be done by
an officer of the rank of ……………
Q.4 When was the Armed forces (Special Powers) Act Passed?
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________

4.8 SUMMARY
Our Parliament has enacted several protective laws. However it
has also passed such laws which violates the human rights. These
laws are called as black laws. But our country is not the only
exception. The developed countries including U.S.A and Britain
have a past in terms of human violations. The main laws which
have been discussed in this chapter are Preventive Detention Act,
1950, MISA & COFEPOSA, Armed Forces (Special Powers) Act
1958 (AFSPA), National Security Act, 1980, Terrorist and
Disruptive Activities (Prevention) Act.

The Preventive Detention Act was passed in 1950. Under this

Act- preventive detention were to be referred to an Advisory Board,
within thirty days term the date of detention placing before it the
ground of detention, the representation made by detainue etc.
During the period of national Emergency (1975-1977), MISA was
 48

used ruthlessly. This Act empowered the Union & the State
Governments to detain without trial any person, so as to prevent
him from doing anything that will endanger the security of India or
defense of India or the relation of India with foreign powers.
The Armed forces (Special Powers) Act 1958 was passed on
September, 11 1958 by the Parliament of India. It is considered as
the most repressive legislation in the history of India’s Parliament.
The enforcement of the AFSPA has resulted in also innumerable
incidents of arbitrary detention, torture, rape & looting by security
personnel.

Like the preventive detention act of 1950 & the MISA, the
national security act is also about the preventive detention. It is
necessary so to do make an order directing that such person be
detained

The Terrorist and Disruptive Activities (Prevention) Act,

commonly known as TADA, was a law active between 1985 and
1995 (modified in 1987) for the prevention of terrorist activities in
Punjab. TADA is not a preventive detention but it is a substantive
criminal law. The Act established special courts or “designated
courts” to try those arrested for terrorist acts and disruptive
activities. The Act's third paragraph gives a very thorough definition
of "terrorism”.

Prevention of Terrorist Activities Act (POTA) was an anti-

terrorism legislation enacted by the Parliament of India in 2002 It
was not meant as a substitute for action under ordinary criminal
laws. The act defined what a terrorist act and a terrorist is and
grants special powers to the investigating authorities described
under the act. To ensure certain powers were not misused and
human rights violations would not take place, specific safeguards
were built into the act. The act was repealed in 2004 by the United
Progressive Alliance coalition.

4.9 UNIT END QUESTIONS

1. Bring out the main provisions of the Armed Forces
Special Powers Act. Give an assessment of this act in the
context of Indian and International laws.
2. Explain the main features of the National Security Act.
3. Describe briefly ‘TADA’ as a repressive law.
4. Write short notes on:
a. POTA 2002
b. Armed Forces Special Powers Act1958
c. The National Security Act 1980

™™™
 5
PROTECTION AND PROMOTION OF
HUMAN RIGHTS IN INDIA.
Unit structure
5.0 objectives
5.1 Introduction
5.2 The National Human Rights Commission
5.3 The State Human Rights Commission
5.4 The National Commission for Scheduled castes
5.5 The National Commission for Scheduled Tribes
5.6 National Commission for Women
5.7 Summary
5.8 Unit End Question

5.0. OBJECTIVES

After studying this lesson you will get the information about:
The various commissions that are working for the
protection of human rights.
Powers and functioning of these commissions
The provision for safeguarding the rights of scheduled
castes and scheduled tribes
The commissions working for protecting the rights of
women

5.1 INTRODUCTION

Being human we are entitled to certain rights which are called as

human rights. These rights belong to everyone irrespective of one’s
cast, class, race, age, gender, religion etc. In democratic societies
fundamental human rights and freedom are put under the
guarantee of law and therefore, their protection becomes an
obligation of government authorities. It is the responsibility of every
state that the people living there should be able to enjoy their
freedom, they should not be deprived of their basic human rights
These rights are broadly classified into civil and political rights on
the one hand and economic, social and cultural rights on the other.
If these rights are protected then only the progress and
development will become possible. All these human rights are
meaningless if they are not protected. There protection requires
certain mechanism which will promote these rights. In this chapter
we are going to study the prescribed mechanism for protection and
promotion of human rights in India. For this purpose various
commissions have been established in our country which we are
going to study. According to Justice T.K Thommen, the National
Human Rights Commission was meant to highlight the pressing
 50

problem that endangers human rights. Its main function is to be the

watchdog of human rights.

The object of both sets of rights is, to make an individual an

effective participant in the affairs of the society. Universal
Declaration of Human Rights adopted by the General Assembly on
10th December, 1948, was followed by two Covenants –
International Convention on Economic, Social and Cultural Rights
(ICESCR) and International Convention on Civil and Political Rights
(ICCPR) in 1966. India signed both these International Conventions
in 1979.

5.2 NATIONAL HUMAN RIGHTS COMMISSION-NHRC

The National Human Rights Commission was established on
12th October, 1993 under the legislative mandate of the Protection
of Human Rights Act, 1993. This act also recommended for the
setting up of State Human Right Commission at State level and
Human Right courts along with NHRC.

Constitution of a National Human Rights Commission

The Commission consists of
Chairperson, who has been a Chief Justice of India.;
One member who is or has been, a Judge of Supreme
Court;
One member who, is or has been, the Chief Justice of
High Court;
Two members being from among people having the
knowledge of human right and have practical experience
The chairperson of the National Commission for
minorities, the National Commission for Scheduled
Castes and Scheduled Tribes and the National
Commission for Women shall be deemed to be members
of the commission for the discharge of functions specified
in clauses (b) to (j) of section 12

All these appointments are made by the President after getting the
recommendation from a committee which is headed by the Prime
Minister.

The terms and condition meant for all the members

1. A member who is appointed as chairman will cease to be a
member after the period of five years from the date of his
appointment or the attainment of the age of 75 years of age
whichever is earlier.
2. A member after the completion of five years can be
reappointed again unless and until he is less than 75 years
of age.
3. When a person is not reappointed as a member he/she will
not be eligible to be employed for any post under the central
 51

govt. or the state govt.

Action against chairman/Member
1. Any member or chairman can be removed only after the order of
president in conditions such as misbehavior or incompetence, only
after reference is made to the Supreme Court. There are some
further conditions on which the chairman/ member can be removed.
if it is found that they are insolvent.
Engaged in an office as a paid employee
Not able to do his work because of infirmity of mind or
body.
He/she is a person of unsound mind.
If any one is convinced and sentenced for any offence
that involves moral turpitude.

Procedure adopted and regulated by the commission

a) The chairman shall decide the venue and date of the
meetings.
b) The commission is free to adopt its own procedures.’
All the decisions of the commission in all events will be
authorized by the Secretary general or any other officer of the
chairperson

Functions of the commission

The commission will perform all or any of the following functions
under Sec. 12 of the act namely

Enquiry: the commission shall inquire, suo motu or on a petition

presented to it by a victim or any person on his behalf
The commission may intervene in any proceeding involving any
allegation of violation of human rights pending before a
court.
The Commission is allowed to visit any jail or other institution
under the control of the State Government, where persons
are detained or lodged for purposes of treatment,
reformation or protection, for the study of the living conditions
of the inmates and make recommendations
The commission may review the safeguards provided by or
under the Constitution or any law for the time being in force
for the protection of human rights and recommend measures
for their effective implementation
The Commission shall review the factors, including acts of
terrorism that inhibit the enjoyment of human rights and
recommend appropriate remedial measures
The Commission shall study treaties and other international
instruments on human rights and make recommendations for
their effective implementation
The Commission shall undertake and promote research in the
field of human rights
The Commission shall spread literacy among various sections of
society and promote awareness of the safeguards available
 52

for the protection of these rights through publications, the

media, seminars and other available means
The Commission shall encourage the efforts of NGOs and
institutions working in the field of human rights
The commission may perform any such other functions as it may
consider necessary for the protection of human rights.

Powers of NHRC
(1) The Commission shall, while inquiring into complaints under this
Act, have all the powers of a civil court trying a suit under the Code
of Civil Procedure, 1908, and in particular in respect of the following
matters, namely :

(a) Summoning and enforcing the attendance of witnesses

and examining them on oath;
(b) Discovery and production of any document;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public record or copy thereof from any
court or office;
(e) Issuing commissions for the examination of witnesses or
documents;
(f) Any other matter which may be prescribed.

(2) The Commission shall have power to require any person,

subject to any privilege which may be claimed by that person under
any law for the time being in force, to furnish information on such
points or matters as, in the opinion of the Commission, may be
useful for, or relevant to, the subject matter of the inquiry and any
person so required shall be deemed to be legally bound to furnish
such information within the meaning of section 176 and section 177
of the Indian Penal Code.

(3) The Commission or any other officer, not below the rank of a
Gazetted Officer, specially authorised in this behalf by the
Commission may enter any building or place where the
Commission has reason to believe that any document relating to
the subject matter of the inquiry may be found, and may seize any
such document or take extracts or copies there from subject to the
provisions of section 100 of the Code of Criminal Procedure, 1973,
in so far as it may be applicable.

(4) The Commission shall be deemed to be a civil court and when

any offence as is described in section 175, section 178, section
179, section 180 or section 228 of the Indian Penal Code is
committed in the view or presence of the Commission, the
Commission may, after recording the facts constituting the offence
and the statement of the accused as provided for in the Code of
Criminal Procedure, 1973, forward the case to a Magistrate having
jurisdiction to try the same and the Magistrate to whom any such
case is forwarded shall proceed to hear the complaint against the
 53

accused as if the case has been forwarded to him under section

346 of the Code of Criminal Procedure, 1973.

(5) Every proceeding before the Commission shall be deemed to be

a judicial proceeding within the meaning of sections 193 and 228,
and for the purposes of section 196, of the Indian Penal Code, and
the Commission shall be deemed to be a civil court for all the
purposes of section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973.

(6) Where the Commission considers it necessary or expedient so

to do, it may, by order, transfer any complaint filed or pending
before it to the State Commission of the State from which the
complaint arises, for disposal in accordance with the provisions of
this Act; Provided that no such complaint shall be transferred
unless the same is one respecting which the State Commission has
jurisdiction to entertain the same.

(7) Every complaint transferred under sub-section (6) shall be dealt

with and disposed of by the State Commission as if it were a
complaint initially filed before it.

Procedure for the enquiry

The Commission while inquiring into the complaints of violations of

human rights may–

(i) call for information or report from the Central Government or any
State Government or any other authority or organisation
subordinate thereto within such time as may be specified by it:-
Provided that–

(a) if the information or report is not received within the time

stipulated by the Commission, it may proceed to inquire into the
complaint on its own;

(b) if, on receipt of information or report, the Commission is satisfied

either that no further inquiry is required or that the required action
has been initiated or taken by the concerned Government or
authority, it may not proceed with the complaint and inform the
complainant accordingly;

(ii) without prejudice to anything contained in clause (i), if it

considers necessary, having regard to the nature of the complaint,
initiate an inquiry.

Annual and special reports of the Commission

(1) The Commission shall submit an annual report to the Central

Government and to the State Government concerned and may at
 54

any time submit special reports on any matter which, in its opinion,
is of such urgency or importance that it should not be deferred till
submission of the annual report.

(2) The Central Government and the State Government, as the

case may be, shall cause the annual and special reports of the
Commission to be laid before each House of Parliament or the
State Legislature respectively, as the case may be, along with a
memorandum of action taken or proposed to be taken on the
recommendations of the Commission and the reasons for non-
acceptance of the recommendations, if any.

According to G..P.Joshi there has been a definite increase in the

number of complaints received by the Commission. From 6,987 in
1994-95, the number increased to 10,195 in 1995-96 and to 20,514
complaints in 1996-97. The Commission feels happy on this
account, as it signifies, according to the Commission, an increase in
awareness of human rights and a "reflection of the increasing
confidence of people in the Commission.

The following data shows that there is great disparity in the cases
registered and the cases disposed by the commission

According to the database of The National Human Rights Institution

Forum Number of cases registered by the Commission:
2000-2001: 71.555
2001-2002: 69.083
2002-2003: 68.779
Number of cases disposed of by the Commission
2000-2001: 44.383
2001-2002: 50.108
2002-2003: 82.231

Over the past fifteen years the Commission has endeavoured to

give a positive meaning and a content to the objectives set out in
the Protection of Human Rights Act, 1993. It has moved vigorously
and effectively to use the opportunities provided to it by the Act to
promote and protect human rights in the country. However the
commission faces some difficulties. Some of them are there is
insufficient workforce, the commission doesn’t have full-fledged
investigative machinery and there is heavy backlog of cases.

5.3 STATE HUMAN RIGHTS COMMISSION –SHRC

As mentioned earlier the Protection of Human Rights Act, 1993
recommends the constitution of National Human Rights
Commission along with State Human Rights Commission in States
for better protection of human rights.
 55

Constitution of State Human Rights Commissions

(1) A State Government may constitute a body to be known as them
(name of the State) Human Rights Commission (e.g. Maharashtra
Human rights Commission) to exercise the powers conferred upon,
and to perform the functions assigned to, a State Commission
under this chapter.

(2) The State Commission shall, with effect from such date as the
State Government may by notification specify, consist of—
(a) A Chairperson who has been a Chief Justice of a High Court;
(b) one Member who is, or has been, a Judge of a High Court or
District Judge in the State with a minimum of seven years
experience as District Judge;
(c) one Member to be appointed from amongst persons having
knowledge of, or practical experience in, matters relating to human
rights.

(3) There shall be a Secretary who shall be the Chief Executive

Officer of the State Commission and shall exercise such powers
and discharge such functions of the State Commission as it may
delegate to him.

(4) The headquarters of the State Commission shall be at such

place as the State Government may, by notification, specify.

(5) A State Commission may inquire into violation of human rights

only in respect of matters relatable to any of the entries enumerated
in List II and List lll in the Seventh Schedule to the Constitution:
Provided that if any such matter is already being inquired into by
the commission or any other Commission duly constituted under
any law for the time being in force, the State Commission shall not
inquire into the said matter:
Provided further that in relation to the Jammu and Kashmir Human
Rights Commission, this sub-section shall have effect as if for the
words and figures “List ll and List lll in the Seventh Schedule to the
Constitution”, the words and figures “List lll in the Seventh Schedule
to the Constitution as applicable to the State of Jammu and
Kashmir and in respect of matters in relation to which the
Legislature of that State has power to make laws” had been
substituted.

(6) Two or more State Governments may, with the consent of a

Chairperson or Member of a State Commission, appoint such
Chairperson or, as the case may be, such Member of another State
Commission simultaneously if such Chairperson or Member
consents to such appointment:

Provided that every appointment made under this sub-section shall

be made after obtaining the recommendations of the Committee
 56

referred to in sub-section(1) of section 22 in respect of the State for

which a common Chairperson or Member, or both, as the case may
be, is to be appointed.

Appointment of Chairperson and Members of State

Commission
(1) The Chairperson and Members shall be appointed by the
Governor by warrant under his hand and seal:
Provided that every appointment under this sub-section shall be
made after obtaining the recommendation of a Committee
consisting of
(a) The Chief Minister — Chairperson
(b) Speaker of the Legislative Assembly — Member
(c) Home Minister of the State
(d) Leader of the opposition in the Legislative Assembly

Term of office of Chairperson and Members of the State

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

(2) A person appointed as a Member shall hold office for a term of

five years from the date on which he enters upon his office and
shall be eligible for re-appointment for another term of five years;
Provided that no Member shall hold office after he has attained the
age of seventy years.

(3) On ceasing to hold office, a Chairperson or a Member shall be

ineligible for further employment under the Government of a State
or under the Government of India.

Functions and powers of the SHRC

The functions and powers of the state commission are similar to
those of National Human Rights Commission. The only difference is
that the State commission cannot make a study of treaties. The
state commission is empowered to study only those cases which
are related to their particular state only. If a matter is with the State
Commission then NHRC shall not deal with these matters.

The present state commissions

So far 18 states have set up their respective State Human
Rights Commissions. These are: Jammu & Kashmir, Andhra
Pradesh, Madhya Pradesh, Tamil Nadu, Chhattisgarh, Assam,
Orissa, Kerala, Maharashtra, Punjab, Uttar Pradesh, Gujarat,
Himachal Pradesh, Karnataka, Manipur, Rajasthan, West
Bengal, Bihar.
 57

Check your progress

1. A State Commission may inquire into violation of human rights

only in respect of matters relatable to any of the entries
enumerated in List ___ and List ___ in the Seventh Schedule
to the Constitution
2. ____________ recommends the constitution of National
Human Rights Commission along with State Human Rights
Commission in States for better protection of human rights.
3. A member of NHRC who is appointed as chairman will cease
to be a member after the period of ____ years or the age of
___ years whichever is earlier.
4. List some of the main functions of the NHRC.
5. What is the difference between the functioning of SHRC and
NHRC?
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________

5.4 NATIONAL COMMISSION FOR SCHEDULED

CASTES –NCSC

In our country due to some historical reasons i.e. the age old
practice of untouchability some of the castes have been deprived of
the opportunities for their development, they remained
underprivileged and socially and economically backward. For many
years these classes were exploited by others. As identified in a
schedule to the constitution of India, these classes are known as
scheduled castes, dalits or Harijans.

In our constitution certain safeguards are provided for the

protection of their some of the rights, following are some of those
articles provided for SC’s &ST’s
Article 15(4) – Educational & cultural safeguard.
Article 16(4) 4A 4B – Reservation in service.
Article 17 – Abolition of untouchability.
Article 19(5) – Prevention of sale or transfer of land of tribal to non-
tribal.
 58

Article 23 – Prohibition in human trafficking, forced labour.

Article 24 – Prohibition of child lobour in certain occupation.
Article 25(2)(b) – Throwing open Hindu religious institution.
Article 164(1) – Minister-in-charge of tribal welfare & welfare of
schedule castes & backward castes in Bihar, MP & Orissa
Article 243-D – Reservation of seats in Panchayats/Municipality.
Article 330 – Reservation of seats for schedule caste & schedule
Tribes in Parliament.
Article 332 - Reservation of seats for state Assemblies.
Articles 333 – Claims of schedule caste & schedule Tribes to
services & posts.
Article 338 provided for the Appointment of commissioners for
schedule caste & schedule Tribes by President. By the
constitution’s 65th amendment bill 1990 the commission was
replaced with the commission for schedule caste & schedule Tribes
commission. Later 89th amendment Act, 2003 separated this
commission and now we have

National Commission for Scheduled Caste -NCSC

National Commission for Scheduled Tribes-NCST
Fakirbhai Vaghela was the first Chairperson of this commission.

Duties – Clause (5) Article 338 lays down the duties of the
commission

(a) to investigate and monitor all matters relating to the safeguards

provided for the Scheduled Castes under this Constitution or under
any other law for the time being in force or under any order of the
Government and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivation

of rights and safeguards of the Scheduled Castes

(c) to participate and advise on the planning process of

socioeconomic development of the Scheduled Castes and to
evaluate the progress of their development under the Union and
any State;

(d) to present to the President, annually and at such other times as

the Commission may deem fit, reports upon the working of those
safeguards;

(e) to discharge such other functions in relation to the protection,

welfare and development and advancement of the Scheduled
Castes as the President may, subject to the provisions of any law
made by Parliament, by rule specify.

Powers---clause (8) of article 338 states The Commission shall,

while investigating any matter referred to in sub-clause (a) or
inquiring into any complaint referred to in sub-clause (b) of clause
 59

(5), have all the powers of a civil court trying a suit and in particular
in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person from
any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or
office;
(e) issuing commissions for the examination of witnesses and
documents;
(f) any other matter which the President may, by rule, determine.
338 -(9) states that Union and State government shall consult
commission on all major policy matters affecting for schedule
castes.

The Headquarters of the Commission is located at New Delhi.

MAIN WINGS –
Atrocities & protection of civil rights.- It deals with matters
related to atrocities caused to scheduled castes.
Whenever information is received in the commission
about any incident of atrocity against a person belonging
to Scheduled Castes, the commission would immediately
get in touch with the law-enforcing and administrative
machinery of the state and the district to ascertain the
details of the incident and the action taken by the district
administration.
Eco. Social development wing - this wing mainly deals with the
plan, schemes of central/state government, some of its
work is as follows
Special component plan for schedule castes.
N S C, FDC- (National schedule castes, Finance &
development Corporation.)
Representations/complaints regarding grievance by for
schedule castes.
Social Research Institute, other research bodies.
Land reforms Act & their implementation.
Education scheme for schedule castes.

NCSC also monitor & evaluate the impact of development

schemes for the SC’S. It also conducts state level review meetings.

5.5 NATIONAL COMMISSION FOR SCHEDULED

TRIBES –NCST

The National Commission for Scheduled Tribes came into force on

19th February 2004 The Rules of the National Commission for
Scheduled Tribes were notified on 20 February 2004, by the
Ministry of Tribal Affairs (Annex-IV). The tenure of Chairperson,
Vice-Chairperson and Members of the Commission is three years
 60

from the date of assumption of the charge by each of them. The

C.P, V. CP & members shall be appointed from amongst persons of
ability, integrity & standing who have had a record of selfless
service to the cause of justice for STS. At least one member has to
be lady.

The tenure of the first Commission constituted in February, 2004

was over in March, 2007. At present, Smt. Urmila Singh is the
Chairperson of the Commission and Shri Tsering Samphel is
Member of the Commission. Both of them joined in the month of
June, 2007. The posts of Vice-Chairperson and two Members are
vacant as on date.

The National Commission for Scheduled Tribes functions from its

Headquarters at New Delhi and from the Regional Offices of the
Commission located in six States.

There are following Six Units of NCST at the Headquarter which are
as follows;
Administration
Coordination unit
Research unit I, II, III, IV

The main functional units are Research Unit-I, Research

Unit-II, Research Unit-III, Research Unit-IV, which deal with all
matters pertaining to socio-economic and educational development,
service safeguards and atrocities in relation to STs as per
distribution of the Ministries/ Departments (including CPSEs and
other Organisation/ Offices under their administrative control) and
the States and UTs among these four Research Units.

There are 6 Regional offices of the National Commission

for Scheduled tribes located at Bhopal, Bhubaneshwar, Jaipur,
Raipur, Ranchi, & Shillong which work as ‘eyes and ears’ of the
Commission. They keep a watch on the formulation of policy and
issue of guidelines relating to the welfare of Scheduled Tribes in the
States/Union territories, and keep the Commission’s Headquarters
informed about the developments periodically. Policy decisions
taken by any State Government/UT Administration affecting the
interests of the Scheduled Tribes are brought to the notice of the
concerned authorities for necessary action.

FUNCTIONS
The functions, duties and power of the National Commission for
Scheduled Tribes have been laid down in clauses(5), (8) and (9) of
the Article 338A of the Constitution, as amended by Constitution
[Eighty-ninth Amendment] Act, 2003. Clause(5) states that it shall
be the duty of the Commission:

to investigate and monitor all matters relating to the

 61

safeguards provided for the Scheduled Tribes under this

Constitution or under any other law for the time being in
force or under any order of the Government and to
evaluate the working of such safeguards.

to inquire into specific complaints with respect to the

deprivation of rights and safeguards of the Scheduled
Tribes.

to participate and advise on the planning process of

socio-economic development of the Scheduled Tribes
and to evaluate the progress of their development under
the Union and any State.

to present to the President, annually and at such other

times as the Commission may deem fit, reports upon the
working of those safeguards.

to make in such reports recommendations as to the

measures that should be taken by the Union or any State
for the effective implementation of those safeguards and
other measures for the protection, welfare and socio-
economic development of the Scheduled Tribes

to discharge such other functions in relation to the

protection, welfare and development and advancement of
the Scheduled Tribes as the President may, subject to
the provisions of any law made by Parliament, by rule,
specify.

Clause (8) states that the: Commission shall, while investigating

any matter referred to in sub- clause (a) or inquiring into any
complaint referred to in sub-clause (b) of clause (5), have all the
powers of a civil court trying a suit and in particular in respect of
the following matters, namely:-summoning and enforcing the
attendance of any person from any part of India and examining
him on oath.

requiring the discovery and production of any documents;

receiving evidence on affidavits.

requisitioning any public record or copy thereof from any

court or office.

issuing commissions for the examination of witnesses

and documents.

any other matter which the President may by rule,

determine.
 62

Clause (9) provides that the Union and every State Government
shall consult the Commission on all major policy matters
affecting Scheduled Tribes.

The commission would also discharge the following other functions;

Measures that need to be taken over conferring ownership
rights in respect of minor forest produce to the ST’s living in
forest area.
Measures to be taken safeguard rights to tribal communities
over mineral resources water resources etc.
Measures to be taken for the development of tribal & to work for
more viable livelihood strategies.
Measures to be taken to improve the efficiency of relief &
rehabilitation measures for tribal groups displaced by
development project.
Measures to be taken to prevent alienation of tribal people from
land & effectively rehabilitate such people in whose case
alienation has already taken place.
Measures to be taken to elicit maximum. Co-operation &
involvement of tribal communities for protecting forests &
undertaking social aforestation.
Measures to be taken to ensure full implementation of the
provisions of panchayats (extensions to the schedule areas
act (40) of 1996.
Measures to be taken to reduce and ultimately eliminate the
practice of shifting cultivation by tribal that leads to their
continuous disempowerment & degradation of land & the
environment.

Powers –the power of this commission are as same as that of

National Commission for SCS.

Check Your Progress

1) _________was the first Chairperson of NCSC.
2) Clause ______ provides that the Union and every State
Government shall consult the Commission on all major policy
matters affecting Scheduled Tribes.
3) There are ______ Regional offices of the National
Commission for Scheduled tribes
4) List two main functions of the NCST
5) What are the main powers of the NCSC?
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
 63

__________________________________________________
__________________________________________________

5.6 NATIONAL COMMISSION FOR WOMEN (NCW)

In our country there is largely a patriarchal structure of a
society. In this set up women have been considered as inferior and
given a secondary status. They have been subject to various legal
and social discriminations. There is a need to remove such
inequalities and to make a provision for solving her problems. ‘The
need was felt for structure to uphold the rights and implement the
provisions of beneficial legislations , in an organized and
institutionalized manner’. So with this view National Commission for
Women (NCW), was set up as statutory body in Jan. 1992 under
new act 1990.

Purpose of the NCW is -

To review constitutional & legal safeguards for women
To recommend remedial legislative measures.
To facilitate redressal of grievances &
To advice government on all policy matter affecting women.

In keeping with its mandate, the Commission initiated various

steps to improve the status of women and worked for their
economic empowerment .During the visits to the states it received a
large number of complaints. The commission acted suo-moto in
several cases to provide speedy justice. It took up the issue of
child marriage, sponsored legal awareness programmes, Parivarik
Mahila Lok Adalats and reviewed laws such as Dowry Prohibition
Act, 1961, PNDT Act 1994, Indian Penal Code 1860 and the
National Commission for Women Act, 1990 It organized
workshops/consultations, constituted expert committees on
economic empowerment of women, for gender awareness and took
up publicity campaign against female foeticide, violence against
women, etc.

The commission shall consist of:

A Chairperson, committed to the cause of women, to be
nominated by the Central Government.
b. Five Members to be nominated by the Central Government
from amongst persons of ability, integrity and standing who
have had experience in law or legislation, trade unionism,
management of an industry potential of women, women’s
voluntary organisations ( including women activist ),
administration, economic development, health, education or
social welfare;

Provided that at least one Member each shall be from

amongst persons belonging to the Scheduled Castes and
 64

Scheduled Tribes respectively;

c A Member-Secretary to be nominated by the Central
Government who shall be :-
an expert in the field of management,
organisational structure or sociological
movement, or
an officer who is a member of a civil service of
the Union or of an all-India service or holds a
civil post under the Union with appropriate
experience.

Tenure-Section 4(1) of act says: The Chairperson and every

member shall hold office for such period, not exceeding three
years, as may be specified by the Central Government in this
behalf.

1. The commission shall perform all or any of the following

functions, namely :-
Investigate and examine all matters relating to the
safeguards provided for women under the Constitution
and other laws;
present to the Central Government, annually and at such
other times as the Commission may deem fit, reports
upon the working of those safeguard;
make such reports recommendations for the effective
implementation of those safeguards for improving the
conditions of women by the Union or any state;
review, from time to time, the exiting provisions of the
Constitution and other laws affecting women and
recommend amendments thereto so as to suggest
remedial legislative measures to meet any lacunae,
inadequacies or shortcomings in such legislations;
take up cases of violation of the provisions of the
Constitution and of other laws relating to women with the
appropriate authorities;
look into complaints and take suo moto notice of matters
relating to:-
deprivation of women's rights;
non-implementation of laws enacted to provide protection
to women and also to achieve the objective of equality
and development;
non-compliance of policy decisions, guidelines or
instructions aimed at mitigating hardships and
ensuring welfare and providing relief to women, and
take up the issues arising out of such matters with
appropriate authorities;
call for special studies or investigations into specific
problems or situations arising out of discrimination and
atrocities against women and identify the constraints so
as to recommend strategies for their removal;
 65

undertake promotional and educational research so as to

suggest ways of ensuring due representation of women in
all spheres and identify factors responsible for impeding
their advancement
participate and advice on the planning process of socio-
economic development of women;
evaluate the progress of the development of women
under the Union and any State;
inspect or cause to inspected a jail, remand home,
women’s institution or other place of custody where
women are kept as prisoners or otherwise and take up
with the concerned authorities for remedial action, if
found necessary;
fund litigation involving issues affecting a large body of
women;
make periodical reports to the Government on any matter
pertaining to women and in particular various difficulties
under which women toil;
Any other matter which may be referred to it by Central
Government.

Complaints & Counselling Cell

The Complaints and Counselling Cell of the commission processes
the complaints received oral, written or suo moto under Section 10
of the NCW Act.

The complaints received relate to domestic violence, harassment,

dowry, torture, desertion, bigamy, rape, refusal to register FIR,
cruelty by husband, deprivation, gender discrimination and sexual
harassment at work place.

The complaints are tackled as below:-

Investigations by the police are expedited and monitored.
Family disputes are resolved or compromised through
counseling.
For serious crimes, the Commission constitutes an Inquiry
Committee which makes spot enquiries, examines various
witnesses, collects evidence and submits the report with
recommendations. Such investigations help in providing
immediate relief and justice to the victims of violence and
atrocities. The implementation of the report is monitored by
the NCW. There is a provision for having experts/lawyers on
these committees.

The State Commission, the NGOs and other experts are involved in
these efforts.

Besides Complaints & Counselling cell NCW also works through

other units namely Legal Cell, Research Cell, P.R. Cell. These Cell
mainly works to review the constitutional and legal safeguards
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provided for women, recommend remedial legislative measures,

felicitate redressal of grievances and advice the Government on all
policy matters affecting women.

The Parivarik Mahila Lok Adalat (PMLA) is an innovative

mechanism developed by the NCW, which has taken up 7500
cases so far. It deals with matters related to family law, and aims at
speedy justice. It also aims at empowering women.

Success stories of NCW

The Commission held on the spot enquiries and investigations
through duly constituted committees. The Committees comprised of
persons with the expertise to handle the subject.

The Commission received a complaint from Smt. Shanti Devi,

w/o Mangelal Rao, Village Kanana, District Barmer,
Rajasthan, alleging that for the last 2 years widow pension,
due to her, had been stopped. She had been declared dead.
She represented to the concerned department for redressal
but no action was taken by the concerned authorities. On the
receipt of the complaint, the matter was taken up with the
District Collector, Barmer and the Collector informed the
Commission that the stand of Shanti Devi had been found to
be correct and necessary instructions had been issued by
the District Collector to the Treasury office, Barmer. Also the
concerned Patwari had been proceeded against
departmentally for stopping the pension on false grounds.

Ms. Rupali Jain had represented to the Commission that her

services in a school run by a non-governmental organization
were terminated without assigning any reason. She had
taken leave for appearing in an examination. The
Commission had taken up the matter with the District
Collector, Ferozabad, who reported to the Commission that
on the intervention of the Commission Ms. Rupali Jain had
been allowed to join back as her grievance was found to be
genuine.

Mrs. Sudha Bala (name changed) was allegedly gang-raped by

BSF personnel in early 2002 at Gojhadanga at Indo-
Bangladesh Border under the district of North 24 Parganas.
Since then the victim along with her young daughter had
been passing days in the Presidency Jail at Kolkata simply
because of non-submission of charge-sheet by Police
although a case under section 376 I.P.C. was duly registered
against the BSF personnel. The matter was taken up by the
Commission for the release of rape victim from the jail and
arrangement for her rehabilitation. The joint efforts of the
National Commission for Women and the West Bengal State
Commission for Women resulted in the release of Mrs. Das
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from jail, who was given into safe custody to her brother.
The Commission was assisted by the Department of Social
Welfare, Government of West Bengal, the SP of North 24
Parganas, advocates at Basirhat Court and the Presidency
Jail authorities.

Check your Progress

1) A Chairperson, committed to the cause of women, is to be
nominated by the _______
2) The Complaints and Counselling Cell of the commission
processes the complaints received oral, written or suo moto
under __________of the NCW Act.
3) List any three functions of the NCW.
4) The Chairperson and every member of NCW shall hold office
for such period, not exceeding _______ years.

__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________

5.7. SUMMARY

Being human we are entitled to certain rights which are called

as human rights. These rights are essential for one’s progress and
development. These human rights must be protected. For this
purpose various commissions have been established in our
country. The National Human Rights Commission was established
on 12th October, 1993 under the legislative mandate of the
Protection of Human Rights Act, 1993. This act also recommended
for the setting up of State Human Right Commission at State level
and Human Right courts along with NHRC. The functions and
powers of the state commission are similar to those of National
Human Rights Commission. The only difference is that the State
commission cannot make a study of treaties.

In our country some of the classes remained underprivileged

and socially and economically backward. Article 338 provided for
the Appointment of commissioners for schedule caste & schedule
Tribes by President. By the constitution 65th amendment bill 1990
the commissioner was replaced with the commission for Schedule
Caste & Schedule Tribes commission. Later 89th amendment Act,
2003 separated this commission and now we have a National
Commission for Scheduled Caste –NCSC and a National
Commission for Scheduled Tribes-NCST.
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National Commission for Women (NCW), was set up as statutory

body in Jan. 1992 under new act 1990 to uphold the rights of
women and to look into the cases related to the deprivation of their
rights. NCW also works for social and economical empowerment.

5.8. UNIT END QUESTIONS

Q.1 Describe the powers and functions of National Human Rights

Commission.
Q.2 Briefly discuss the functions and powers of the State Human
Rights Commission in the state.
Q.3 Briefly examine the powers and functions of the National
Commission for Scheduled Castes.
Q.4 Write detailed note on the National Commission of Scheduled
Tribes.
Q.5 Briefly review the role of the National Commission for Women.