EXERCISE OF HUMAN RIGHTS IN INDIA AND ITS

VIOLATIONS

-Priyamvada Yadav
B.A. LL.B. (H) self-finance
5th semester
Roll no. 40

INTRODUCTION

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, color, creed, place of birth, sex, cultural differences 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 as well as birth rights.

The notion of human rights is rooted in the concepts of “natural rights” that was

propounded by John Locke, who insisted that some rights are natural to individuals

having existed since the “state of nature” that existed before the conception of state.1

The right to a dignified life, regardless of the status of that person, is cardinal to the

essence of human rights. The state is essentially a body to protect these rights. It has

various instrumentalities created to hear concern of the people and provide them with

compensation and restoration of their given rights.

1
Burns Weston, ‘Human Rights.’ In 20 New Encyclopedia Britannica 656 (fifteenth edition 1992), in
Henry Steiner and Phillip Alston, International Human Rights in Context: Law, Politics, Morals. 324.
(Oxford: Oxford University Press. 2000).

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The modern version of human rights jurisprudence may be said to have taken birth in

India at the time of the British rule. When the British ruled India, resistance to foreign

rule manifested itself in the form of demand for fundamental freedoms and the civil and

political rights of the people. Indians were humiliated and discriminated against by the

Britishers. The freedom movement and the harsh repressive measures of the British

rulers encouraged the fight for civil liberties and fundamental freedoms.

The foundation of modern human rights is the Universal Declaration of Human Rights

(UDHR). The 30 articles of the Declaration were adopted in 1948 by the United Nations

General Assembly, and over time these have been integrated into national laws and

international treaties. The core values of the UDHR – human dignity, fairness, equality,

non-discrimination – apply to everyone, everywhere.

When in December 1948, the Constitution of India was in the making, the General

Assembly in UDHR proclaimed and adopted the Universal Declaration of Human

Rights, which surely influenced the framing of India's Constitution. Thus, the

fundamental rights enshrined under Part III and IV of the Indian Constitution are very

similar to the provisions of the Universal Declaration of Human Rights.

Human Rights include Civil and Political rights (Right to freedom of expression, Right

to freedom of religion or conscience, Right to life, Right to equality, Right to privacy,

etc.) as well as Economic, Cultural and Social rights (Right to adequate standard of

living, Right to adequate food, housing, water and sanitation, Right to work in a safe

environment, Right to education).

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STATUTORY BODIES AND HUMAN RIGHTS COMMISSIONS

The setting up of a national institution is one of the most effective means to perform

the various functions relating to the implementation of human rights. Such an institution

raises human rights awareness through education, training, research and conduct

impartial investigation into alleged violations. It may also prove or secure effective

redress either by negotiation with the government concerned or may assist the victims

by providing relief through a court of law. The domestic institution of human rights

may also influence the legislators to preserve human rights in the wildest sense of the

term. It may also monitor government compliance with treaty commitments.2

India had shown keen interest in the past in establishing or strengthening a national

institution for the promotion and protection of human rights before the Third

Committee of the General Assembly. In early 1990s India felt the need of establishing

a Commission as a positive response to the criticisms of the foreign Governments in

the context of political unrest and violence in Punjab, Jammu & Kashmir, North-East

and Andhra Pradesh. In addition to the pressure from the foreign countries, pressure

was added from the domestic front as well for the creation of a National Human Rights

Commission, because of the awareness among the people for the protection of human

rights. All this led the Government to decide to enact a law to establish a Human Right

Commission.3 The Human Rights Commission Bill was introduced in the Parliament

and became an Act on January 8,1994 which is known as the Protection of Human

Rights Act.4 The purpose of the enactment is laid down in the Preamble of the Act, i.e.,

to provide for the constitution of a National Human Rights Commission, State Human

2
Dr H.O. Agarwal, International Law and Human Rights (Central Law Publication, Allahabad, 21st
edn., 2016).
3
Ibid.
4
Act No. 10 of 1994. The Act was published in the Gazette of India Extra. Part II, Section 1 dated
January 10, 1994 pp. 1-16.

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Rights Commissions in States and Human Rights Courts for better protection of human

rights and for matters connected therewith or incidental thereto.5 The National as well

as State Human Rights Commissions are entrusted with various functions and powers

that bind them to perform their duty towards proper implementation and protection of

human rights in the country.

To preserve and protect the Human Rights of weaker sections of the society, the

government has constituted a few other statutory bodies as well which includes

National Commission for Minorities, National Commission for Backward Classes,

National Commission for Women, National Commission for Protection of Child

Rights, etc.

VIOLATIONS OF HUMAN RIGHTS

There are shocking instances of violence, torture, child abuse, man slaughter and other

human rights violations everyday despite the presence of the special covenants provided

for children, women and disabled. Constitution of various statutory bodies and

commissions proves to be in vain. Crimes continue no matter what. Human rights in

India continue to be a messy issue. It seems humanity is somewhere on the verge of

extinction.

Though, women in India form nearly fifty percent of the population, they are still denied

human rights from the cradle to the grave. Other than the common issues like poverty,

denial of education, subjugation of women, etc., there are so many more serious human

rights violations that exist in the country currently.

5
The Commission has recommended to the Government for the amendment in the Preamble by adding
‘including the implementation of International Covenants’. (See Annual Report of the National Human
Rights Commission, 1999-2000 p.183).

4
A New York based NGO in its report pointed out: “Throughout the year, the UN issued

several statements raising concerns over issues in India including sexual violence,

discrimination against religious minorities, targeting of activists and lack of

accountability for security forces.”6

Instances of violations of human rights in India

According to the 2016-17 report by Amnesty International, there have been major

human rights violations in India. 7

 Many armed forces committed human rights abuses. While the Communist

Party of India (Maoist) was suspected of extortion, abductions and unlawful

killings in central and south India, armed groups in North-East India are

believed to have committed similar crimes too. This included the killing of 14

people by National Democratic Front of Bodoland in Kokrajhar in Assam.

 More than 56,000 crimes were committed against scheduled castes and

scheduled tribes in 2015. These included denying Dalits entry into public and

social spaces, according to the report. In 2016, Dalit student Rohith Vemula

committed suicide, complaining of discrimination and abuse, leading to

nationwide protests.

 Crimes against children rose by 5% in 2015 as compared to the previous year.

An amendment in a child labour law by the Parliament that allowed some

exceptions was opposed by child rights activists, who were concerned it would

affect marginalized groups and girl children.

6
Human Rights Watch, World Report: India (2019).
7
Amnesty International, Report: These were the Major Human Rights Violations In India In 2015
(2017).

5
  Many people were attacked by vigilante cow protection groups. These self-

appointed guardians of cows beat up many people legally transporting cattle,

and many of those affected were minority groups. Two Muslim cattle traders

were found hanging from a tree in Jharkhand. Other violations included

gangrape of women and forcing cattle transporters to eat cow dung.

 More than 3,27,000 crimes were committed against women in 2015. Many of

them belonged to marginalized communities. Women were allegedly sexually

assaulted by members of the armed forces in Chhattisgarh.

According to the World Report 2019 by Human Rights Watch, the government led by

Bhartiya Janata Party harassed and at times prosecuted activists, lawyers, human rights

defenders and journalists for criticizing authorities. The government failed to prevent

or credibly investigate growing mob attacks on religious minorities, marginalized

communities, and critics of the government—often carried out by groups claiming to

support the government.8 However, at such point the judiciary played a positive role in

protection of human rights by decriminalising homosexual relations, striking down a

colonial-era law, paving way for full constitutional protection for LGBT community.

Some of the major violations in 2018-19 include:

 In July 2018, government in Assam published a draft of the National Register

of Citizens, aimed at identifying Indian citizens and legitimate residents

following repeated protests and violence over irregular migration from

Bangladesh. The potential exclusion of over four million people, many of them

Muslims, from the register raised concerns over arbitrary detention and possible

statelessness.

8
Human Rights Watch, World Report: India (2019).

6
  In September 2018, Tamil Nadu state authorities arrested a woman for calling

the BJP government “fascist” on board a flight in the presence of the state’s BJP

president.

 In June 2018, police arrested eight people in Bihar state, including five under

the age of 18, for sedition, for playing and dancing to an “anti-India” song.

 Starting in September 2018, numerous women in India’s media and

entertainment industries shared their accounts on social media of workplace

sexual harassment and assault, as part of the #MeToo movement. These public

accounts, naming the accused, highlighted the failures of due process, lack of

mental health services and support for survivors, and the urgent need to fully

implement the Sexual Harassment of Women at Workplace Act of 2013, which

prescribes a system for investigating and redressing complaints in the

workplace.

 The Muslim Rohingya community has consistently faced human rights abuses

in Myanmar by the Burmese regime which has refused to acknowledge them as

citizens (despite generations of habitation in the country) and attempted to

forcibly expel Rohingya and bring in non-Rohingyas to replace them.

The UN special rapporteur on racism called the decision to deport seven Rohingya back

to Myanmar a “flagrant denial of their right to protection.”

 After the scrapping of special status of Jammu & Kashmir in August 2019, it

has been under a near complete lockdown. “Human Rights violations have

shown a massive increase in J&K since Aug. 5, 2019”, said Hakan Cavusoglu,

the head of Turkish parliament’s Human Rights Commission.9

9
Muhammet Emit Avundukluoglu, “Human rights violations worsening in Kashmir” Anadolu
Ajansi,Sep. 9, 2019.

7
 It has been over 3 months since the Indian government revoked constitutional

autonomy to Jammu and Kashmir and split the state into two centrally

administered territories. And yet abusive restrictions, including a lockdown on

internet and mobile phone services, remain.

Indian government has said that the restrictions have saved lives and maintained

order but fear of arbitrary arrests and shootings by security forces has left the

Kashmir valley full of shuttered shops and empty classrooms. The authorities

have even blocked visits by diplomats, international journalists, Indian activists,

and opposition politicians.10

Whatever be said by the authorities, nothing can justify the months of broad-

based clampdown on civil liberties.

Human Rights and Judiciary

Judiciary in every country has an obligation and a Constitutional role to protect Human

Rights of citizens. As per the mandate of the Constitution of India, this function is

assigned to the superior judiciary namely the Supreme Court of India and High courts.

The Judiciary with no doubt has played a vital role in protection of Human rights over

the decades. Some of the most unpleasant violation of human rights like Sati, Child

Marriage, Honour Killings, Slavery, Child labour etc., have been abolished wholly

owing to widespread awareness and strict implementation measures taken by the

Judiciary.

10
Meenakshi Ganguly, “Restrictions, detentions persist in Kashmir” Human Rights Watch, Oct. 7,
2019.

8
The court in Kharak Singh vs. State of U.P.11 defined the meaning of ‘LIFE’ as

something more than mere animal existence. Life in real sense means life with dignity

and of such nature which may afford an individual the opportunities to get desired

heights as per his capabilities. Life with dignity goes with many other things which are

the basic necessities of life such as adequate nutrition, clothing, and shelter over heads

and facilities to read write and express or simply to say education. The same was held

in Francis Coralie vs. Union Territory of Delhi12 and activities as constitute the bare

minimum expression of human self were declared as human right. The Supreme Court

in Olga Tellis vs. Bombay Municipal Corporation13 and Delhi Transport

Corporation vs. DTC Majdoor Congress14 case came forward with the protection of

right to livelihood slum and pavements dwellers and employees of DTC and held that

right to life includes right to livelihood and they are deprived of this right. It will be a

threat to their very existence and may be the biggest attack over their human rights. In

Parmanand Katara vs. Union of India15 the Supreme Court observed, that it is a

paramount obligation of every member of medical profession (private or government)

to give medical aid to every injured citizen brought for treatment immediately without

waiting for procedural formalities and thus secured human right of health or to receive

medical treatment. Education helps the individual to understand his/her right, manner

for its implementation. Therefore, the right to education becomes the part of inalienable

human right. Education is also a halt where the efficacy or propriety of implementation

of human rights may be checked into. Further human right of dignified life may be

provided only when education is imparted and therefore education automatically

11
(1963 AIR 1295).
12
(1981 AIR 746).
13
(1985 SCC (3) 545).
14
(1991 AIR 101).
15
(1989 4 SCC 286).

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becomes human right of an individual. For implementation of this very human right

Supreme court in various cases provided education a status of Fundamental right.

Unnikrishnan J.P. vs. State of Andhra Pradesh16 and Mohini Jain cases17 are

remarkable on the point. It is the effort of judiciary in its various judgments due to

which the legislature was compelled to give right to education a constitutional status

and Article 21 A was added as fundamental right. The second vulnerable class of

society is women. Though the women in present time have come out from the

boundaries of their houses and have better understanding of their rights but the ratio is

very low. Most of the women are still locked within the four walls. They still face an

unequal and degraded treatment. In Mohammad Ahmad vs. Shah Bano Case18, it was

held that “Large segment of the society have been traditionally subjected to unjust

treatment. Women are one of such segments”. Though, the vulnerable section of the

society including women, children and socially, educationally weaker section of the

society has been repeatedly ensured their rights by the Courts. However, when we

specifically talk of women’s development all are just vague or merely a showcase

discussion. These are simply window shopping of development. Court in various cases

as Vishakha case19, Nargeesh Mirza case20, Chandrimadas vs. Chairman Railway

Board21 etc. has made efforts for creating equality for women to save their human rights

but still the cases of gross violation of human rights of women are coming regularly

which shows that we are still lacking in protection of human rights of women. The

status of human rights is fairly high under the Constitution of India which makes

provision for fundamental rights and empowers Supreme Court of India and High

16
(1993 AIR 217).
17
(1992 AIR 1858).
18
(1985 (1) SCALE 767), (1985 (3) SCR 844), (1985 (2) SCC 556), (AIR 1985 SC 945).
19
((1997) 6 SCC 241).
20
((1981 AIR 1829), (1982 SCR (1) 438)).
21
((2000) 2 SCC 465).

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Courts to enforce these rights. Equally important is the fact that India is a signatory to

international conventions on economic, social, cultural, civil and political rights, with

certain conditions. These rights are partly contained in Part III of the Constitution of

India including the right to equality in Article 14, right to freedom of speech and

expression in Article 19(1)(a), the right to protection of life and personal liberty in

Article 21 and the right to religious freedom in Article 25 etc. In Part IV of the

Constitution, the Directive Principles of State Policy i.e. the duties of the State or the

socio-economic rights, have been envisaged which are non-justifiable in any court of

law but complementary to the fundamental rights in Part III. It directs the State to apply

policies and principles in the governance of the country so as to enhance the prospects

of social and economic justice. For instance, Article 43 directs the State to secure for

workers a living wage, decent standard of life and social and cultural opportunities. On

a different note, the society should be changed in a positive way by the State, enlighten

and place every human being in a society where their individual rights can be protected

as well as upheld.

The Indian judiciary with its widest interpretation in observance of Human Rights has

contributed to the progress of the nation and to the goal of creating India as a vibrant

State. The definition of Human Rights can be found under Section 2(d) of the Protection

of Human Rights Act, 1993 as, “The rights relating to life, liberty, equality and dignity

of the individual guaranteed by the Constitution or embodied in the International

Covenants and enforceable by the Court of India.” So, it is evident that Courts have a

major role to play in enforcing the rights. The intervention by the courts for issues

involving the economic, social and cultural rights definitely created a positive

implication.

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Some very important developments have occurred wholly due to the initial efforts taken

by the Judiciary, like

• Many of the recent changes in law and policy relating to education in general, and

primary education in particular, are owed to the decision in Unnikrishnan P.J vs. State

of A.P. and others22

• For instance, the decision in Paschim Banga Khet Mazdoor Samity & Ors vs. State

of West Bengal23 delineates the right to emergency medical care for accident victims

as forming a core minimum of the right to health.

• The orders in PUCL vs. Union of India24 underscore the right of access for those

below the poverty line to food supplies as forming the bare non-derogable minimum

that is essential to preserve human dignity.

WRITS AND HUMAN RIGHTS

The most significant of the Human Rights is the exclusive right to Constitutional

remedies under Articles 32 and 226 of the Constitution of India. Those persons whose

rights have been violated have right to directly approach the High Courts and the

Supreme Court for judicial rectification, redressal of grievances and enforcement of

Fundamental Rights. In such a case the courts are empowered to issue appropriate

directions, orders or writs including writs in the nature of Habeas Corpus, Mandamus,

Prohibition, Quo-warranto, and Certiorari. By virtue of Article 32, the Supreme Court

of India has expanded the ambit of Judicial Review to include review of all those state

22
(1993 4 SCC 111)
23
(1996) 4 SCC 37
24
AIR 2003

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measures, which either violate the Fundamental Rights or violative of the Basic

Structure of the Constitution.

PILs AND HUMAN RIGHTS

A new approach has emerged in the form of Public Interest Litigation (PIL) with the

objective to bring justice within the reach of the poor and the disadvantageous section

of the society. In the recent past the judges of the High Courts and the Supreme Court

have from time to time given far reaching and innovative judgements to protect the

Human Rights. Public Interest Litigation has heralded a new era of Human Rights

promotion and protection in India. Public Interest Litigation has rendered a signal

service in the areas of Prisoner’s Rights, development of compensatory jurisprudence

for Human Rights violation, Environmental protection, bonded labour eradication and

prohibition of Child Labour and many others.

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CONCLUSION

Human rights are the rights provided by the constitution of India and hence, no

government or authority is permitted to restrain the exercise of these rights by any

individual. Rights such as right to dignity, labour, equality of justice, right to religion

are guaranteed by the Constitution and are kept out of the influence of government and

administration, with judiciary given responsibility of supervising their protection and

promotion. They should be protected by any means to ensure the progress of India and

harmony and peace among its masses. Even today, there are several instances of human

rights violation at various places in the country. There can be no permanent and regular

prosperity of human beings unless every country or nation creates such conditions in

which human rights are enjoyed by its natives.

The NHRC’s contributions cannot be ignored as well, i.e. to prevent unholy violation

of Human rights. It has taken note of promptly ensuring safeguard of rights. Through

Seminars, workshops, and media- publicity, the Commission has educated Public and

Government officials including Police, Jail, para-military and army-personnel to ensure

effective promotion protection of human rights, keeping away all kinds of physical and

mental torture.

It is also very evident that the Indian Judiciary has been very sensitive and alive to the

protection of the Human Rights of the people. It has, through judicial activism forged

new tools and devised new remedies for the purpose of vindicating the most precious

Human Right to Life and Personal liberty. The humongous caseload on the courts is

one problem that has created efforts to safeguard rights against the exploitative

tendencies of those in power by checking the potential excesses of the legislative wings

and effectively guarantying the protection of human rights.

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BIBLIOGRAPHY

Books Referred:

 Dr H.O. Agarwal, International Law and Human Rights (Central Law

Publication, Allahabad, 21st edn., 2016).

 N Jayakaran, International Law and Human Rights (Lexis Nexis Butterworths,

Delhi, 1st edn., 2011).

 S.K. Kapoor, Human Rights under International Law and Indian Law (Central

Law Agency, Allahabad, 2017)

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