SUBJECT CODE : GE8074

Strictly as per Revised Syllabus of

Anna University
Choice Based Credit System (CBCS)
Semester - V (ECE, Civil) Professional Elective - I
Semester - VII (Mech., CSE, IT, EEE) Professional Elective - III

Human Rights
Dr. P. Alli
B.E., M.S., Ph.D.,
Dean (Planning & Development)/HoD-CSE
Velammal College of Engineering and Technology, Madurai.

C. B. Selvalakshmi
M.E., M.B.A., Assistant Professor,
Velammal College of Engineering and Technology, Madurai.

K. Santha Sheela
M.E. (Embedded Systems), Assistant Professor,
Velammal College of Engineering and Technology, Madurai.

T. GraceShalini
M.E. (CSE), M.B.A. (System Software),
(Pursuing Ph.D. In Vanets Information Technology)
Assistant Professor, Department of Computer Science Engg.,
Velammal College of Engineering and Technology, Madurai.

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Human Rights
Subject Code : GE8074

Semester - V (ECE, Civil) Professional Elective - I

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 UNIT-I

1 Introduction to Human Rights

Syllabus
Meaning, origin and Development. Notion and classification of Rights - Natural, Moral and
Legal Rights. Civil and Political Rights, Economic, Social and Cultural Rights; collective /
Solidarity Rights.

Contents
1.1 Human Rights

1.2 Human Rights Origin and Development

1.3 Notion and Classification of Human Rights

1.4 Natural, Moral and Legal Rights

1.5 Civil and Political Rights, Economic, Social and Cultural Rights

1.6 Collective / Solidarity Rights

Two Marks Questions with Answers

Review Questions

(1 - 1)
Human Rights 1-2 Introduction to Human Rights

1.1 Human Rights

Human rights are rights inherent to all human beings, regardless of gender,
nationality, place of residency, sex, ethnicity, religion, color or and other categorization.
Thus, human rights are non-discriminatory, meaning that all human beings are entitled to
them and cannot be excluded from them of course, while all human beings are entitled to
human rights, not all human beings experience them equally throughout the world. Many
governments and individuals ignore human rights and grossly exploit other human
beings.
There are a variety of human rights, including :
 Civil rights (such as the rights to life, liberty and security),
 Political rights (like rights to the protection of the law and equality before the law),
 Economic rights (including rights to work, to own property and to receive equal
pay),
 Social rights (like rights to education and consenting marriages),
 Cultural rights (including the right to freely participate in their cultural community)
and
 Collective rights (like the right to self-determination).

Slavery is a violation of human rights

Slavery, forced labor and human trafficking are violations of human rights because
these acts strip human beings of their inherent rights. In fact, the universal declaration of
human rights explicitly references slavery, stating in article 4 : No one shall be held in
slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Slavers and human traffickers grossly violate human rights since they claim
ownership, labor and/or the humanity of another human being. The human rights most
relevant to trafficking are :
The prohibition of discrimination on the basis of race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status;
 The right to life;
 The right to liberty and security;
 The right not to be submitted to slavery, servitude, forced labor or bonded labor;
 The right not to be subjected to torture and/or cruel, inhuman, degrading treatment
or punishment;
 The right to be free from gendered violence;

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Human Rights 1-3 Introduction to Human Rights

 The right to freedom of association;

 The right to freedom of movement;
 The right to the highest attainable standard of physical and mental health;
 The right to just and favorable conditions of work;
 The right to an adequate standard of living;
 The right to social security; and
 The right of children to special protection.

Human rights for women and girls

Many organizations and governments worldwide focus on improving the status of
women and girls. According to the International Labor Organization, 11.4 million women
and girls are victims of forced labor in different forms – including debt bondage,
trafficking and forced prostitution. As global leaders seek to improve the status of women
and girls, it’s critical to focus on decreasing women and girls’ exploitation in forced labor,
trafficking and slavery.
 When women and girls are enslaved or trafficked, they do not have access to
programs aimed at women’s equality and development.
 Trafficked and enslaved women and girls oftentimes do not attend school. Many
times these women and girls are illiterate.
 Trafficked and enslaved women and girls face gross sexual violence, whether in
forced prostitution, forced marriage or during forced physical labor.
 Trafficked and enslaved women and girls are subject to domestic violence.
 Trafficked and enslaved women and girls do not have access to reproductive and
maternal health. The physical and sexual abuse of their exploitation leads to many
early pregnancies, forced abortions and exposure to HIV and other diseases.
 Trafficked and enslaved women and girls do not have access to healthcare.
 Trafficked and enslaved women and girls often face critical malnutrition.
 Trafficked and enslaved women and girls do not have access to anti-poverty
programs, micro-loans or other economic development initiatives, leaving them
dependent on their exploiters.

Universal and inalienable

The principle of universality of human rights is the cornerstone of international human
rights law. This principle, as first emphasized in the universal declaration on human
rights in 1948, has been reiterated in numerous international human rights conventions,

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Human Rights 1-4 Introduction to Human Rights

declarations and resolutions. The 1993 Vienna world conference on human rights, for
example, noted that it is the duty of states to promote and protect all human rights and
fundamental freedoms, regardless of their political, economic and cultural systems.
All states have ratified at least one and 80 % of states have ratified four or more, of the
core human rights treaties, reflecting consent of states which creates legal obligations for
them and giving concrete expression to universality. Some fundamental human rights
norms enjoy universal protection by customary international law across all boundaries
and civilizations.
Human rights are inalienable. They should not be taken away, except in specific
situations and according to due process. For example, the right to liberty may be
restricted if a person is found guilty of a crime by a court of law.

Interdependent and indivisible

All human rights are indivisible, whether they are civil and political rights, such as the
right to life, equality before the law and freedom of expression; economic, social and
cultural rights, such as the rights to work, social security and education or collective
rights, such as the rights to development and self-determination, are indivisible,
interrelated and interdependent. The improvement of one right facilitates advancement of
the others. Likewise, the deprivation of one right adversely affects the others.

Equal and non-discriminatory

Non-discrimination is a cross-cutting principle in international human rights law. The
principle is present in all the major human rights treaties and provides the central theme
of some of international human rights conventions such as the international convention
on the elimination of all forms of racial discrimination and the convention on the
elimination of all forms of discrimination against women.
The principle applies to everyone in relation to all human rights and freedoms and it
prohibits discrimination on the basis of a list of non-exhaustive categories such as sex,
race, colour and so on. The principle of non-discrimination is complemented by the
principle of equality, as stated in article 1 of the universal declaration of human rights :
“All human beings are born free and equal in dignity and rights.”

Both rights and obligations

Human rights entail both rights and obligations. States assume obligations and duties
under international law to respect, to protect and to fulfil human rights. The obligation to
respect means that states must refrain from interfering with or curtailing the enjoyment of
human rights. The obligation to protect requires states to protect individuals and groups

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Human Rights 1-5 Introduction to Human Rights

against human rights abuses. The obligation to fulfil means that states must take positive
action to facilitate the enjoyment of basic human rights. At the individual level, while we
are entitled our human rights, we should also respect the human rights of others.

NHRC
The National Human Rights Commission (NHRC) established in 1993, is an
independent statutory body as per the provisions of the Protection of Human Rights Act
of 1993 which was amended in 2006.
 Human Rights are an indispensable part of society and Human Rights in India are
watched by NHRC.
 NHRC acts as a watchdog of human rights in the country.
 NHRC looks over the rights that are related to life, dignity, liberty and equality of
the individual that is defined in Section 2(1) of the PHR Act.
 They are guaranteed by the Constitution of India, embodied in the international
covenants and are enforceable by the courts of India as well.
 NHRC was established in compliance with the Paris Principles of Human Rights,
1991 which were adopted for the promotion and protection of Human Rights and
were endorsed by United Nations at its General Assembly of 1993.

NHRC History for UPSC

 In 1948, the UN adopted the UDHR (Universal Declaration of Human Rights).
 In 1991, the Paris Principles were established by the National Human Rights
Institutions (NHRIs).
 In 1993, the UN adopted these Paris Principles at its General Assembly.
 In 1993, India enacted the Protection of Human Rights Act.
 This led to the formation of the National Human Rights Commission (NHRC).
 The Protection of Human Rights Act also allowed state governments to establish the
State Human Rights Commission.

NHRC Composition - Members of NHRC for UPSC

 The National Human Rights Commission (NHRC) is composed of a Chairperson
and eight other members.
 Those eight members are :
o Four full-time members.
o Four deemed members.

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Human Rights 1-6 Introduction to Human Rights

 Members of NHRC
Chairman of NHRC Retired Chief Justice of India

Member 1 One who is/has been a Judge of Supreme Court of India

Member 2 One who is/has been a Chief Justice of a High Court

Two Members Candidates with the knowledge or practical experience in the matters
of Human Rights

Deemed Members Deemed members are chairpersons of the below national commissions :

(Ex-officio Members) 1. National Commission for Minorities

2. National Commission for Scheduled Castes

3. National Commission for Scheduled Tribes

4. National Commission for Women

Appointment of NHRC Members

 A Selection Committee will recommend the candidates to the President.
 The Selection Committee includes :
o Prime Minister (Chairman)
o Speaker of Lok Sabha
o Union Home Minister
o Deputy Chairman of Rajya Sabha
o Leaders of the Opposition in both Houses of the Parliament

Functions & Powers of NHRC [UPSC Polity]

The functions of the National Human Rights Commission (NHRC) as stated in the
Protection of Human Rights Act,1993 includes enquiry into complaints of violation of
human rights or negligence in the prevention of such violation by a public servant. The
Commission also studies treaties and international instruments on human rights and
makes recommendations for their effective implementation to the Government.
 NHRC can investigate any complaints related to violation of Human Rights in India
either suo moto or after receiving a petition.
 NHRC can interfere in any judicial process that involves any allegation of violation
of Human Rights.
 It can visit any prison/institute under the control of the state governments to
observe the living conditions of inmates. It can further make recommendations
based on its observations to the authorities.

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Human Rights 1-7 Introduction to Human Rights

 NHRC can review the provisions of the Constitution that safeguard Human Rights
and can suggest necessary restorative measures.
 Research in the field of Human Rights is also promoted by the NHRC.
 Human Rights awareness and literacy through different media are promoted by
NHRC in various sectors of society.
 NHRC has the power to recommend suitable steps that can prevent violation of
Human Rights in India to both Central as well as State Governments.
 The President of India gets an annual report from NHRC which is laid before both
the Houses of the Parliament.

Limitations of NHRC
It is important to know the limitations of NHRC for UPSC exam. They are mentioned
below :
 The Recommendations made by the NHRC are not binding.
 Violation of Human rights by private parties cannot be considered under NHRC
Jurisdiction.
 NHRC doesn’t have the power to penalise the authorities that don’t implement its
recommended orders.
 3 of the NHRC members are judges which give the functioning of the Commission a
judicial touch.
 The other members that are recommended by the Selection Committee may not
necessarily be Human Rights experts.
 The NHRC does not consider the following cases :
o Cases that are older than one year.
o Cases that are anonymous, pseudonymous or vague.
o Frivolous cases.
o Cases pertaining to service matters.
 The NHRC has limited jurisdiction over cases related to armed forces.
 The NHRC faces other issues like excess cases/complaints, insufficient funds,
bureaucratic functioning style, etc.

Major Issues related to NHRC

Questions about NHRC in UPSC can also be asked in relation to the current affairs. So
aspirants should read about the major issues related to NHRC for UPSC exam. India faces
Human Rights violations on a large scale due to various reasons. The National Human

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Human Rights 1-8 Introduction to Human Rights

Rights Commission (NHRC) takes up most of the issues around the country. Some of
them are mentioned below :
 Arbitrary arrest and detention
 Custodial torture
 Child labour
 Violence and discrimination against women and children
 Extrajudicial killings
 Excessive powers
 Sexual violence and abuse
 LGBTQ community rights
 SC/ST, disabled people and other religious minority issues
 Labour rights and right to work
 Conflict induced internal displacement
 Manual scavenging

1.2 Human Rights Origin and Development

The emergence of rights in political thought is generally regarded as relatively recent,
though any historical study of rights reveals how indeterminate the philosophical
charting of the evolution of rights has been (Renteln, 1988). Human rights are considered
the offspring of natural rights, which themselves evolved from the concept of natural law.
Natural law, which has played a dominant role in western political theory for centuries, is
that standard of higher-order morality against which all other laws are adjudged. To
contest the injustice of human-made law, one was to appeal to the greater authority of
god or natural law.
Eventually this concept of natural law evolved into natural rights; this change reflected
a shift in emphasis from society to the individual. Whereas natural law provided a basis
for curbing excessive state power over society, natural rights gave individuals the ability
to press claims against the government (Renteln, 1988).1 The modern conception of rights
can be traced back to enlightenment political philosophy and the movement, primarily in
England, France and the United States, to establish limited forms of representative
government that would respect the freedom of individual citizens.
John Locke, in his second treatise on government (1690), described a “state of nature”
prior to the creation of society in which individuals fended for themselves and looked
after their own interests. In this state, each person possessed a set of natural rights,

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Human Rights 1-9 Introduction to Human Rights

including the rights to life, liberty and property. According to Locke, when individuals
came together in social groups, the main purpose of their union was to secure these rights
more effectively. Consequently, they ceded to the governments they established “only the
right to enforce these natural rights and not the rights themselves” (“Human rights :
Historical development,” n.d.).
Locke’s philosophy, known as classical liberalism, helped foster a new way of thinking
about individuals, governments and the rights that link the two. Previously, heads of
state claimed to rule by divine right, tracing their authority through genealogy to the
ultimate source to some divine being. This was as true for Roman emperors as it was
Chinese and Japanese emperors. The theory of divine right was most forcefully asserted
during the renaissance by monarchs across Europe, most notoriously James I of England
(1566-1625) and Louis XIV of France (1638-1715).
Locke’s principles were adopted by the founding fathers of the United States in the
declaration of independence (1776), which stated :
We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their creator with certain unalienable rights, that among these are life, liberty
and the pursuit of happiness. - That to secure these rights, governments are instituted
among men, deriving their just powers from the consent of the governed.
The echoes of Locke are unmistakable in the language of the declaration of
independence. Similarly, the language used both by Locke and by the founding fathers
clearly foreshadows the creation of a document like the universal declaration. These
principles were further expounded and enshrined in the U.S. constitution (1787) and bill
of rights (1789).
Natural rights theorists have asserted the existence of specific rights - most notably the
right to self-preservation (Hobbes) and the right to property (Locke). Because such
theorists take the validity of fundamental rights to be self-evident, there has traditionally
been little tolerance for debate. One scholar notes that natural rights “seemed peculiarly
vulnerable to ethical skepticism” (Waldron 1984: 3). Nevertheless, natural rights were not
widely contested as they were asserted in a limited universe of shared Western values
(Renteln, 1988).
What, then, is a right, and how are human rights distinct from natural rights ? For
many philosophical writers, a right is synonymous with a claim. The Oxford english
dictionary defines a right as “a justifiable claim, on legal or moral grounds, to have or
obtain something or act in a certain way.” The classic definition of a human right is a right
which is universal and held by all persons :

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A human right by definition is a universal moral right, something which all men,
everywhere, at all times ought to have, something of which no one may be deprived
without a grave affront to justice, something which is owing to every human being
simply because he is human. (Cranston 1973 : 36).
One frequently cited definition of human rights posits four necessary requirements :
First, it must be possessed by all human beings, as well as only by human beings.
Second, because it is the same right that all human beings possess, it must be possessed
equally by all human beings. Third, because human rights are possessed by all human
beings, we can rule out as possible candidates any of those rights which one might have
in virtue of occupying any particular status or relationship… And fourth, if there are any
human rights, they have the additional characteristic of being assertable, in a manner of
speaking, ‘against the whole world.’ (Wasserstrom 1979 : 50).
The United Nations office of the high commissioner for human rights defines human’s
rights as :
Rights inherent to all human beings, whatever our nationality, place of residence, sex,
national or ethnic origin, color, religion, language or any other status. We are all equally
entitled to our human rights without discrimination. (“What are human rights ?” n.d.).
The primary element recurring throughout each of these definitions is universality -
human rights are inalienable and fundamental rights to all persons are inherently entitled
simply by virtue of being human. As we will soon observe, this crucial and existential
element of universality is profoundly controversial and thus quite tenuous.
The innovation of human rights in the twentieth century extended the idea of
individual rights to include all human beings, regardless of citizenship or state affiliation.
Human rights helped reconstitute individual identity and freedom as something
transcending national borders. As the atrocities of the world wars made clear, there were
times when the state became the citizen’s greatest enemy and outside protection was his
or her best and only hope. Before examining universality and other ideological conflicts
concerning the idea of human rights, let us turn our attention now to the various kinds of
rights that human rights encompass.

1.3 Notion and Classification of Human Rights

Human rights can be classified in a number of different ways. Some rights may fall
into more than one of the available categories. One of the most widely used classifications
distinguishes two general categories : Classic or civil and political rights and social rights
that also include economic and cultural rights. Classic rights generally restrict the powers

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of the government in respect of actions affecting the individual and his or her autonomy
(civil rights) and confer an opportunity upon people to contribute to the determination of
laws and participate in government (political rights). Social rights require the
governments to act in a positive, interventionist manner so as to create the necessary
conditions for human life and development. The governments are expected to take active
steps toward promoting the well-being of all its members out of social solidarity. It is
believed that everyone, as a member of society, has the right to social security and is
entitled to realization of the Economic, Social and Cultural Rights (ESCR) indispensable
for his or her dignity and the free development of his or her personality.
All human rights carry corresponding obligations that must be translated into concrete
duties to guarantee these rights. For many years, traditional human rights discourse was
dominated by the misperception that civil and political rights require only negative duties
while economic, social and cultural rights require positive duties. In this view, the right to
free speech is guaranteed when the state leaves people alone, whereas the state must take
positive action to guarantee the right to health by building health clinics and providing
immunization.
This positive versus negative dichotomy has been discredited recently in favor of the
understanding that all human rights have both positive and negative components. It is a
matter of common sense that civil and political rights, including free speech, require the
positive outlay of state resources in terms of providing a functioning judicial system and
educating people about their rights. Conversely, all ESCR have negative aspects; some
states prevent people from freely exercising ESCR, for example by blocking food or
medical supplies to disfavored groups or regions.
Most scholars and activists now agree that duties for all human rights - civil and
political as well as ESCR - can be divided into several discrete categories based on the
type of duties. Although there is some variation in these typologies, they converge along
the following basic categories : The duties to respect, protect and fulfill.
The duty to respect is the negative obligation. It requires responsible parties to refrain
from acting in a way that deprives people of the guaranteed right. Regarding the right to
health, for example, a government may not deprive certain communities of access to
health care facilities. The duty to protect is the obligation concerning third parties. It
requires responsible parties to ensure that third parties do not deprive people of the
guaranteed right. For example, a government must pass and enforce laws prohibiting
private companies from releasing hazardous chemicals that impair public health. The
duty to fulfill is the positive obligation. It requires responsible parties to establish

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political, economic and social systems that provide access to the guaranteed right for all
members of society. For example, a government must provide essential health services
such as accessible primary care and clean water.

1.4 Natural, Moral and Legal Rights

Rights are those essential conditions of social life without which no person can
generally realize his best self. These are the essential conditions for health of both the
individual and his society. It is only when people get and enjoy rights that they can
develop their personalities and contributes their best services to the society.
 Rights are those conditions of social life without which no man can seek in general,
to be himself at his best.” - Laski.
 “Rights are powers necessary for the fulfillment of man’s vocation as a moral
being.” -T. H. Green.
 “Rights are nothing more nor less than those social conditions which are necessary
or favourable to the development of personality” - Beni Prasad.
As such, rights are common and recognized claims of the people which are essential
for their development as human beings.

Features / nature of rights :

 Rights exist only in society. These are the products of social living.
 Rights are claims of the individuals for their development in society.
 Rights are recognized by the society as common claims of all the people.
 Rights are rational and moral claims that the people make on their society.
 Since rights in here only in society, these cannot be exercised against the society.
 Rights are to be exercised by the people for their development which really means
their development in society by the promotion of social good. Rights can never be
exercised against social good.
 Rights are equally available to all the people.
 The contents of rights keep on changing with the passage of time.
 Rights are not absolute. These always bear limitations deemed essential for
maintaining public health, security, order and morality.
 Rights are inseparably related with duties. There is a close relationship between
them “No Duties Ho Rights. No Rights No Duties.” “If I have rights it is my duty to
respect the rights others in society”.

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 Rights need enforcement and only then these can be really used by the people.
These are protected and enforced by the laws of the state. It is the duty of a state to
protect the rights of the people.
All these features clearly bring out the nature of rights.

1.4.1 Types of Rights

Natural rights :
Faith in natural rights is strongly expressed by several scholars. They hold that people
inherit several rights from nature. Before they came to live in society and state, they used
to live in a state of nature. In it, they enjoyed certain natural rights, like the right to life,
right to liberty and right to property. Natural rights are parts of human nature and
reason. However, several other scholars regard the concept of natural rights as imaginary.
Rights are the products of social living. These can be used only in a society. Rights have
behind them the recognition of society as common claims for development and that is
why the state protects these rights. Natural rights and legal rights are two types of rights.
Natural rights are those that are not dependent on the laws or customs of any particular
culture or government and so are universal and inalienable (they cannot be repealed by
human laws, though one can forfeit their enforcement through one's actions, such as by
violating someone else's rights). Legal rights are those bestowed onto a person by a given
legal system (they can be modified, repealed, and restrained by human laws).
The concept of natural law is related to the concept of natural rights. Natural law first
appeared in ancient Greek philosophy and was referred to by Roman philosopher Cicero.
It was subsequently alluded to in the Bible and then developed in the middle ages by
Catholic philosophers such as Albert the Great and his pupil Thomas Aquinas. During
the age of enlightenment, the concept of natural laws was used to challenge the divine
right of kings and became an alternative justification for the establishment of a social
contract, positive law and government - and thus legal rights - in the form of classical
republicanism. Conversely, the concept of natural rights is used by others to challenge the
legitimacy of all such establishments. The idea of human rights is also closely related to
that of natural rights : Some acknowledge no difference between the two, regarding them
as synonymous, while others choose to keep the terms separate to eliminate association
with some features traditionally associated with natural rights. Natural rights, in
particular, are considered beyond the authority of any government or international body
to dismiss. The 1948 United Nations universal declaration of human rights is an
important legal instrument enshrining one conception of natural rights into international

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Human Rights 1 - 14 Introduction to Human Rights

soft law. Natural rights were traditionally viewed as exclusively negative rights, whereas
human rights also comprise positive rights. Even on a natural rights conception of human
rights, the two terms may not be synonymous.

Moral rights :
Moral rights are those rights which are based on human consciousness. They are
backed by moral force of human mind. These are based on human sense of goodness and
justice. These are not backed by the force of law. Sense of goodness and public opinion
are the sanctions behind moral rights.
If any person violates any moral right, no legal action can be taken against him. The
state does not enforce these rights. Its courts do not recognize these rights. Moral rights
include rules of good conduct, courtesy and of moral behavior. These stand for moral
perfection of the people legal rights.
Legal rights are those rights which are recognized and enforced by the state. Any
violation of any legal right is punished by law. Law courts of the state enforce legal rights.
These rights can be enforced against individuals and also against the government. In this
way, legal rights are different from moral rights. Legal rights are equally available to all
the citizens. All citizens enjoy legal rights without any discrimination. They can go to the
courts for getting their legal rights enforced.

1.5 Civil and Political Rights, Economic, Social and Cultural Rights
Legal rights are of three types :
1. Civil rights
2. Political rights
3. Economic rights
4. Social rights
5. Cultural rights

1.5.1 Civil Rights

Civil rights are those rights which provide opportunity to each person to lead a
civilized social life. These fulfill basic needs of human life in society. Right to life, liberty
and equality are civil rights. Civil rights are protected by the state.
Civil rights guarantee equal protection under the law. When civil and political rights
are not guaranteed to all as part of equal protection of laws or when such guarantees exist
on paper but are not respected in practice, opposition, legal action and even social unrest
may ensue.

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Civil rights movements in the United States gathered steam by 1848 with such
documents as the declaration of sentiment. Consciously modeled after the declaration of
independence, the declaration of rights and sentiments became the founding document of
the American women's movement and it was adopted at the Seneca Falls Convention,
July 19 and 20, 1848.
Worldwide, several political movements for equality before the law occurred between
approximately 1950 and 1980. These movements had a legal and constitutional aspect and
resulted in much law-making at both national and international levels. They also had an
activist side, particularly in situations where violations of rights were widespread.
Movements with the proclaimed aim of securing observance of civil and political rights
included :
 The civil rights movement in the United States, where rights of black citizens had
been violated;
 The Northern Ireland civil rights association, formed in 1967 following failures in
this province of the United Kingdom to respect the Roman Catholic minority's
rights; and
 Movements in many communist countries, such as the Prague Spring and
Charter 77 in Czechoslovakia and the uprisings in hungary.
Most civil rights movements relied on the technique of civil resistance, using
nonviolent methods to achieve their aims. In some countries, struggles for civil rights
were accompanied, or followed, by civil unrest and even armed rebellion. While civil
rights movements over the last sixty years have resulted in an extension of civil and
political rights, the process was long and tenuous in many countries and many of these
movements did not achieve or fully achieve their objectives.

1.5.2 Political Rights

Political rights are those rights by virtue of which citizens get a share in the political
process. These enable them to take an active part in the political process. These rights
include right to vote, right to get elected, right to hold public office and right to criticize
and oppose the government. Political rights are really available to the people in a
democratic state.
Civil and political rights are a class of rights that protect individuals' freedom from
infringement by governments, social organizations, and private individuals. They ensure
one's entitlement to participate in the civil and political life of the society and state
without discrimination or repression.

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Civil rights include the ensuring of peoples' physical and mental integrity, life and
safety; protection from discrimination on grounds such as race, gender, sexual
orientation, gender identity, national origin, color, age, political affiliation, ethnicity,
religion and disability; and individual rights such as privacy and the freedom of thought,
speech, religion, press, assembly and movement.
Political rights include natural justice (procedural fairness) in law, such as the rights of
the accused, including the right to a fair trial; due process; the right to seek redress or a
legal remedy; and rights of participation in civil society and politics such as freedom of
association, the right to assemble, the right to petition, the right of self-defense, and the
right to vote.
Civil and political rights form the original and main part of international human
rights. They comprise the first portion of the 1948 universal declaration of human rights
(with economic, social and cultural rights comprising the second portion). The theory of
three generations of human rights considers this group of rights to be "first-generation
rights" and the theory of rights considers them to be generally negative rights.

1.5.3 Economic Rights

Economic rights" redirects here. It is not to be confused with Economic freedom.
"Social rights" redirects here. For another sense, see Social rights (social contract theory).
Economic rights are those rights which provide economic security to the people. These
enable all citizens to make proper use of their civil and political rights. The basic needs of
every person are related to his food, clothing, shelter, medical treatment etc. Without the
fulfillment of these no person can really enjoy his civil and political rights. It is therefore
essential, that every person must get the right to work, right to adequate wages, right to
leisure and rest and right to social security in case of illness, physical disability and old
age. Legal rights are, clearly, rights which exist under the rules of legal systems or by
virtue of decisions of suitably authoritative bodies within them. They raise a number of
different philosophical issues. (1) Whether legal rights are conceptually related to other
types of rights, principally moral rights; (2) What the analysis of the concept of a legal
right is; (3) What kinds of entities can be legal right-holders; (4) Whether there any kinds
of rights which are exclusive to or at least have much greater importance in, legal
systems, as opposed to morality; (5) What rights legal systems ought to create or
recognise. Issue (5) is primarily one of moral and political philosophy, and is not different
in general principle from the issue of what duties, permissions, powers, etc, legal systems
ought to create or recognise. It will not, therefore, be addressed here.

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A preliminary point should be mentioned. Do all legal systems have a concept of

rights ? Their use is pervasive in modern legal systems. We talk of legislatures having the
legal right to pass laws, of judges to decide cases, of private individuals to make wills and
contracts; as well as of constitutions providing legal rights to the citizens against fellow
citizens and against the state itself. Yet it has been suggested that even some sophisticated
earlier systems, such as Roman law, had no terminology which clearly separated rights
from duties.

1.5.4 Social and Cultural Rights

Socio-economic human rights, such as the right to education, right to housing, right to
an adequate standard of living, right to health, victims' rights and the right to science and
culture. Economic, social and cultural rights are recognised and protected in international
and regional human rights instruments. Member states have a legal obligation to respect,
protect and fulfil economic, social and cultural rights and are expected to take
"progressive action" towards their fulfilment.
The universal declaration on human rights recognizes a number of economic, social
and cultural rights and the International Covenant on Economic, Social and Cultural
Rights (ICESCR) is the primary international legal source of economic, social and cultural
rights. The convention on the rights of the child and the convention on the elimination of
all forms of discrimination against women recognizes and protects many of the economic,
social and cultural rights recognised in the ICESCR in relation to children and women.
The convention on the elimination of all forms of racial discrimination prohibits
discrimination on the basis of racial or ethnic origin in relation to a number of economic,
social and cultural rights. The convention on the rights of persons with disabilities also
prohibits all discrimination on the basis of the disability including refusal of the
reasonable accommodation relating to full enjoyment of economic, social and cultural
rights.
Economic, social and cultural rights include the human right to work, the right to an
adequate standard of living, including food, clothing and housing, the right to physical
and mental health, the right to social security, the right to a healthy environment and the
right to education.
Economic, social and cultural rights are part of the body of human rights law that
developed in the aftermath of World War II. Human rights law includes all economic and
social rights, as well as civil and political rights like the right to free speech and the right
to a fair trial. These rights are deeply intertwined : For example, the right to speak freely
means little without a basic education, the right to vote means little if you are suffering

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from starvation. Similarly, the right to work means little if you are not allowed to meet
and assemble in groups to discuss work conditions.
The most important human rights law is in the international bill of human rights,
which includes the universal declaration of human rights (1948), the international
covenant on civil and political rights, the international covenant on economic, social and
cultural rights. Economic and social rights are also included in numerous other human
rights legal instruments. Among the most important are :
 Convention on the Rights of the Child (CRC).
 Convention on the Elimination of Discrimination Against Women (CEDAW).
 Convention on the Elimination of All Forms of Racial Discrimination (CERD).
 Vienna world conference on human rights declaration and plan of action.
 Conventions of the international labor organization.
The optional protocol to the international covenant on economic, social and cultural
rights, yet to come into force.
CESR has prepared a guide to the legal framework of economic, social and cultural
rights that elaborates on how those rights exist in international law.

Why are they called "rights" ?

All the world's great religious and moral traditions, philosophers, and revolutionaries,
recognize that human beings deserve to live in freedom, justice, dignity and economic
security. The international bill of rights grew out of these traditions and calls for all
governments to make sure their citizens have human rights - civil, political, social,
cultural and economic. Referring to economic, social and cultural issues as "rights" uses
the legal framework developed under international law and gives individuals legitimate
claims against state and non-state actors for protection and guarantees.
During the Cold War and within trickle-down economic theory, economic, social and
cultural rights were frequently mislabeled as "benefits," meaning individuals had no basic
claims to things like food and shelter. After the covenant came into force in 1976,
jurisprudence around economic and social rights began to develop and great progress
followed the formation of the United Nations committee on economic, social and cultural
rights.
Economic and social rights require governments and other powerful actors to ensure
that people have access to basic needs, and that people have a voice in decisions affecting
their well-being. Poverty and injustice are neither inevitable nor natural, but arise from
deliberate decisions and policies and the human rights legal framework provides a way to
hold public officials accountable for development policies and priorities.

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What are the minimum requirements ?

States are bound to ensure minimum human rights regardless of their resource
constraints. For ESC rights, minimum core requirements include available foodstuffs for
the population, essential primary health care, basic shelter and housing and the most
basic forms of education. The committee on economic, social and cultural rights
elaborated on state obligations under obligations. How do states fulfill their minimum
requirements ? Every government in the world has certain responsibilities regarding its
citizens. The human rights legal framework spells out those responsibilities with the
following three obligations :
 Respect - The obligation to respect requires governments to refrain from interfering
directly or indirectly with the enjoyment of economic, social and cultural rights.
 Protect - The obligation to protect requires governments to prevent third parties,
such as corporations, from interfering in any way with the enjoyment of economic,
social and cultural rights.
 Fulfill - The obligation to fulfill requires governments to adopt the necessary
measures to achieve the full realization of economic, social and cultural rights.

What about non-state actors ?

Human rights treaties are signed by governments and are the duty of governments to
enforce. However, this does not mean that non-state actors are free to violate people's
human rights. There are three main ways to apply human rights standards to non-state
actors.
 First, governments have the primary responsibility to protect human rights,
including from violations by non-state actors.
 Second, individuals may enforce their basic rights through judicial action. Finally,
non-state actors are bound to respect human rights standards through the universal
protection of human dignity.

How are these rights enforced ?

At the international level, the most effective enforcement mechanism for all
international human rights is political pressure. Those states that have ratified the
ICESCR are required to submit regular reports every five years to the committee on
economic and social rights that detail their human rights standards. When these reports
are reviewed, it provides an excellent opportunity for civil society and the international
community at large to put pressure on a country to adhere to its legal obligations. To
learn more about how to work with the committee, please refer CESR's activist's manual

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Human Rights 1 - 20 Introduction to Human Rights

on the international covenant on economic, social and cultural rights, prepared by Jeff
King for CESR and the Sri Lankan-based law and society trust.
For many years, there has been no way for individuals to bring forward violations of
ESCR to the committee on economic, social and cultural rights. However, governments at
the United Nations agreed in 2008 to allow the possibility of allowing individual
complaints through the adoption of an optional protocol to the ICESCR.
For those countries that haven't ratified the ICESCR, there are other international
venues that apply political pressure. For example, a country may be a party to the CRC or
CEDAW, both of which include ESCR. Larger bodies, like the commission on human
rights, can also be used to apply political pressure. Additionally, petitions in regional
human rights commissions can also be effective in highlighting an issue and seeking
remedy.
At the domestic level, there are political and legal remedies for many ESC violations.
Although these remedies are still far from comprehensive, they do demonstrate that
economic and social rights are fundamentally justiciable. For example, a core part of
every ESCR is a prohibition on discrimination, whether for employment, housing or food.
Anti-discrimination laws exist in most countries and are fully enforceable in a court of
law.

Justifiability of economic, social and cultural rights

Opponents of ESCR, regrettably including some in the human rights field, argue that
ESCR are not judicially enforceable and that they are too vague to monitor effectively. Yet
most sovereign states have enshrined ESCR in their constitutions, and there are numerous
examples of courts applying domestic and international law to protect ESCR. Vagueness
has also not prevented international development agencies from producing immense
volumes of research on global social and economic conditions. These include
standardized methodologies for comparing conditions in different countries and regions,
the UNDP's human development index and gender-related indices, UNICEF's rate of
progress measurements, and the World Bank's world development reports, to name a
few.
Historical neglect of ESCR cannot be attributed to methodological obstacles. While
there is always a need for additional indicators to measure compliance in specific rights, it
must be emphasized that the definition of all rights, even freedom from torture, changes
and expands over time through concrete practice. The main obstacle to realizing ESCR
remains a lack of political will and commitment on the part of states, international

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institutions and NGOs whose responsibility it is to respect, protect and promote these
rights for the benefit of all human beings.
The following list provides just a few examples of ESCR violations that are already
being tried in courts around the world :
 Forcible evictions.
 Terminating an employee without cause.
 Deliberate poisoning of a water supply.
 Discrimination in access to medical care, work, housing, education etc.
 Banning unions.
 Depriving children of adequate food and water.
 Failing to provide any primary level education.
 Failing to provide basic health care facilities.
 Educational institutions in such poor condition that they are a risk to safety.
 Housing in such poor condition that it is a risk to safety.

1.6 Collective / Solidarity Rights

The list of internationally recognized human rights has not remained constant.
Although none of the rights listed in the UDHR has been brought into serious question in
over 60 years of its existence, new treaties and documents have clarified and further
developed some of the basic concepts that were laid down in that original document.
These additions have been a result of a number of factors : They have partly come
about as a response to changing ideas about human dignity and partly as a result of new
threats and opportunities emerging. In the case of the specific new category of rights that
have been proposed as third generation rights, these have been the consequence of a
deeper understanding of the different types of obstacles that may stand in the way of
realising the first and second generation rights.
The idea at the basis of the third generation of rights is that of solidarity; and the rights
embrace collective rights of society or peoples, such as the right to sustainable
development, to peace or to a healthy environment. In much of the world, conditions
such as extreme poverty, war, ecological and natural disasters have meant that there has
been only very limited progress in respect of human rights. For that reason, many people
have felt that the recognition of a new category of human rights is necessary : These rights
would ensure the appropriate conditions for societies, particularly in the developing
world, to be able to provide the first and second generation rights that have already been
recognised.

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The specific rights that are most commonly included within the category of third
generation rights are the rights to development, to peace, to a healthy environment, to
share in the exploitation of the common heritage of mankind, to communication and
humanitarian assistance.
There has, however, been some debate concerning this category of rights. Some
experts object to the idea of these rights because they are ‘collective rights', in the sense of
being held by communities or even whole states. They argue that human rights can only
be held by individuals. The argument is more than merely verbal, because some people
fear such a change in terminology could provide a "justification" for certain repressive
regimes to deny (individual) human rights in the name of these collective human rights;
for example, severely curtailing civil rights in order to secure "economic development".
There is another concern which is sometimes expressed: since it is not the state but the
international community that is meant to safeguard third generation rights, accountability
is impossible to guarantee. Who or what, is supposed to be responsible for making sure
that there is peace in the Caucasus or the Middle East or that the Amazonian rainforest is
not destroyed and that appropriate measures are taken against climate change ?
Nevertheless, whatever we decide to call them, there is general agreement that these
areas require further exploration and further attention from the international community.
Some collective rights have already been recognised, in particular under the African
charter on human and peoples' rights and the declaration on the rights of indigenous
Peoples. The UDHR itself includes the right to self-determination and a human right to
development was codified in a 1986 UN general assembly declaration. The right to
development is an inalienable human right by virtue of which every human person and
all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural
and political development, in which all human rights and fundamental freedoms can be
fully realised. Article 1, UN declaration on the right to development.

Are some rights more important than others ?

Social and economic rights had a difficult time being accepted on an equal level with
civil and political rights, for reasons which are both ideological and political. Although it
seems evident to the ordinary citizen that such things as a minimum standard of living,
housing and reasonable conditions of employment are all essential to human dignity,
politicians have not always been so ready to acknowledge this. One reason is
undoubtedly that ensuring basic social and economic rights for everyone worldwide
would require a massive redistribution of resources. Politicians are well aware that that is
not the type of policy that wins votes.

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Such politicians therefore suggest that second generation rights are different to first
generation civil and political rights. The first claim often made is that social and economic
rights are neither realistic nor realisable, at least in the short term and that we should
move towards them only gradually. This is the approach that has been taken in the
ICESCR : Governments only need to show that they are taking measures towards meeting
these aims at some point in the future. The claim, however, is certainly open to dispute
and appears to be based more on political considerations than anything else. Many
independent studies show that there are sufficient resources in the world and sufficient
expertise, to ensure that everyone's basic needs could be met if a concerted effort was
made.
A second claim is that there is a fundamental theoretical difference between first and
second generation rights : That the first type of rights require governments only to refrain
from certain activities (these are so-called "negative" rights); while the second require
positive intervention from governments (these are "positive" rights). The argument states
that it is not realistic to expect governments to take positive steps, for example to provide
food for everyone and that they are therefore not obliged to do so. Without any obligation
on anyone's part, there can be no right in any meaningful sense of the word.
However, there are two basic misunderstandings in this line of reasoning.
Firstly, civil and political rights are by no means purely negative. In order, for
example, for a government to guarantee freedom from torture, it is not enough just for
government officials to refrain from torturing people! Genuine freedom in this area often
requires a system of checks and controls to be put in place : Policing systems, legal
mechanisms, freedom of information and access to places of detention - and more
besides. The same goes for securing the right to vote and for all other civil and political
rights. In other words, these rights require positive action by the government in addition
to refraining from negative action.
Secondly, social and economic rights, just like civil and political rights, also require
that governments refrain from certain activities : For example, from giving large tax
breaks to companies or encouraging development in regions that already possess a
relative advantage or imposing trade tariffs which penalise developing countries - and so
on.

Other accounts for ‘core' and ‘other' rights

The ‘generations approach' is not the only effort in distinguishing between rights in
the light of the proliferation of rights. Some rights can be derogated in times of public
emergency; others cannot. Some rights are recognised as being ‘jus cogens' or norms that
have been accepted by the international community of states as a norm from which no

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Human Rights 1 - 24 Introduction to Human Rights

derogation is permitted : Examples include the prohibitions against genocide, slavery and
systematic racial discrimination. Some rights are ‘absolute' in that they cannot be subject
to derogation or limitation in their manifestation, for example the prohibition on torture.
‘Minimum core' obligations have been identified in relation to certain economic and social
rights, for example the provision of essential primary health care, basic shelter and
education. Others may suggest that collective rights are core, in that they establish a
framework of protection within which individual rights can then be realised. There is no
clear consensus or single theory on this and most observers would reinforce the
importance of emphasizing the universality, indivisibility and interdependence of rights.
Irrespective of the question of proliferation, however, science sometimes triggers the
need for the application of human rights norms to new challenges and these will be
discussed below.

The advance of science

Another area where new rights are being acknowledged is in health and medical
science. New scientific discoveries have opened up a number of questions relating to
ethics and human rights, in particular in the fields of genetic engineering and concerning
the transplant of organs and tissues. Questions on the very nature of life have had to be
addressed as a result of technical advances in each of these fields.
The council of Europe responded to some of these challenges with a new international
treaty : The 1999 convention for the protection of human rights and dignity of the human
being with regard to the application of biology and medicine (from now on, referred to as
the Oviedo convention). This convention has been signed by 30 member states of the
council of Europe and ratified by ten. It sets out guidelines for some of the problematic
issues raised in the previous section.

Summary of most relevant articles :

 Any form of discrimination against a person on grounds of their genetic heritage is
prohibited.
 Predictive genetic tests can be carried out only for health purposes and not, for
example, in order to determine the physical characteristics that a child will develop
in later life.
 Intervention which aims to modify the human genome may only be undertaken for
preventative, diagnostic or therapeutic purposes.
 Medically assisted procreation is not permitted where this is designed to determine
a future child's sex.
 Removal of organs or tissue from a living person for transplantation purposes can
be carried out solely for the therapeutic benefit of the recipient. (Article 21 -
Prohibition of financial gain.)

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Genetic engineering is the method of changing the inherited characteristics of an

organism in a predetermined way by altering its genetic material. Progress in this area
has led to an intense debate on a number of different ethical and human rights questions;
for example, whether the alteration of germ cells should be allowed when this results in a
permanent genetic change for the whole organism and for subsequent generations; or
whether the reproduction of a clone organism from an individual gene should be allowed
in the case of human beings if it is permitted in the case of mice and sheep.

Two Marks Questions with Answers

PART A

Q.1 Define human rights.

Ans. : Human rights are defined as all those rights which are essential for the protection
and maintenance of dignity of individuals and create conditions in which every human
being can develop his personality to the fullest extent may be termed as human rights.
Q.2 Explain the classification of human rights.
Ans. : Human rights can be classified and organized in a number of different ways, at an
international level the most common categorisation of human rights has been to split them
into civil and political rights, and economic, social and cultural rights.
Q.3 List the types of fundamental rights.
Ans. : 1. The right to due process. 2. The right to freedom of speech. 3. The right to freedom
of religion. 4. The right to privacy. 5. The right to marry. 6. The right to interstate and
intrastate travel. The right to equality. 7. The right to assemble.
Q.4 What is mean by civil and political rights ?
Ans. : Civil and political rights are a class of rights that protect individuals' freedom from
infringement by governments, social organizations, and private individuals. They ensure
one's entitlement to participate in the civil and political life of the society and state without
discrimination or repression.
Q.5 What is mean by economic, social and cultural rights ?
Ans. : Economic, social and cultural rights are socio-economic human rights, such as the
right to education, right to housing, right to adequate standard of living, right to health,
victims' rights and the right to science and culture.
Q.6 What is collective rights ?
Ans. : Collective rights are a type of human rights, which unlike traditional rights, are not
vested in a single individual but belongs to all people so that all of them can collective
enjoyed. Collective rights are also called third generation rights, solidarity rights or new
rights.

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Human Rights 1 - 26 Introduction to Human Rights

Q.7 List ESCR violations.

Ans. :
 Forcible evictions.
 Terminating an employee without cause.
 Deliberate poisoning of a water supply.
 Discrimination in access to medical care, work, housing, education etc.
Q.8 What about non-state actors ?
Ans. : Human rights treaties are signed by governments, and are the duty of governments
to enforce. However, this does not mean that non-state actors are free to violate people's
human rights. There are three main ways to apply human rights standards to non-state
actors.
Q.9 Define social and cultural rights.
Ans. : Socio-economic human rights, such as the right to education, right to housing, right
to an adequate standard of living, right to health, victims' rights and the right to science
and culture. Economic, social and cultural rights are recognised and protected in
international and regional human rights instruments.
Q.10 List variety of human rights.
Ans. :
 Civil rights (such as the rights to life, liberty and security),
 Political rights (like rights to the protection of the law and equality before the law),
 Economic rights (including rights to work, to own property and to receive equal
pay),
 Social rights (like rights to education and consenting marriages),
 Cultural rights (including the right to freely participate in their cultural community),
and
 Collective rights (like the right to self-determination).

Review Questions
PART B

1. Explain civil and political rights. (Refer sections 1.5.1 and 1.5.2)
2. Explain the functions of NHRC. (Refer section 1.1)
3. Explain the composition of NHRC. (Refer section 1.1)
4. Explain about the origin and development of human rights. (Refer section 1.2)
5. Explain in detail about the classification of human rights. (Refer section 1.4)



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 UNIT-II

International
2 Humanitarian Law
Syllabus
Evolution of the concept of Human Rights Magana carta – Geneva Convention of 1864.
Universal Declaration of Human Rights, 1948. Theories of Human Rights.

Contents
2.1 Evolution of the Concept of Human Rights Magana Carta

2.2 Geneva Convention of 1864

2.3 Universal Declaration of Human Rights

2.4 Theories of Human Rights

Two Marks Questions with Answers

Review Questions

(2 - 1)
Human Rights 2-2 International Humanitarian Law

2.1 Evolution of the Concept of Human Rights Magana Carta

The Magna Carta, or “Great Charter,” was arguably the most significant early
influence on the extensive historical process that led to the rule of constitutional law
today in the english-speaking world.
In 1215, after King John of England violated a number of ancient laws and customs by
which England had been governed, his subjects forced him to sign the Magna Carta,
which enumerates what later came to be thought of as human rights. Among them was
the right of the church to be free from governmental interference, the rights of all free
citizens to own and inherit property and to be protected from excessive taxes. It
established the right of widows who owned property to choose not to remarry and
established principles of due process and equality before the law. It also contained
provisions forbidding bribery and official misconduct.
Widely viewed as one of the most important legal documents in the development of
modern democracy, the Magna Carta was a crucial turning point in the struggle to
establish freedom.
The Magna Carta is often seen as one of the first legal documents protecting human
rights. But what is its impact on later human rights documents ?
The Magna Carta controlled the power of the King for the first time in English history.
It began the tradition of respect for the law, limits on government power and a social
contract where the government ruled with the consent of the people.
The true power of the Magna Carta lies in its impact on later documents and the
creation of a culture of the rule of law. This poster explores the legacy of the Magna Carta
and its effect on human rights documents, tracing the evolution from the Magna Carta to
the universal declaration of human rights and giving an overview of the relationship
between the Magna Carta and human rights.

2.1.1 Petition of Right (1628)

The next recorded milestone in the development of human rights was the petition of
right, produced in 1628 by the English Parliament and sent to Charles I as a statement of
civil liberties. Refusal by parliament to finance the king’s unpopular foreign policy had
caused his government to exact forced loans and to quarter troops in subjects’ houses as
an economy measure. Arbitrary arrest and imprisonment for opposing these policies had
produced in parliament a violent hostility to Charles and to George Villiers, the Duke of
Buckingham. The petition of right, initiated by Sir Edward Coke, was based upon earlier
statutes and charters and asserted four principles : (1) No taxes may be levied without

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Human Rights 2-3 International Humanitarian Law

consent of parliament, (2) No subject may be imprisoned without cause shown

(reaffirmation of the right of habeas corpus), (3) No soldiers may be quartered upon the
citizenry and (4) Martial law may not be used in time of peace.

2.1.2 The Background of Human Rights

In 539 B.C., the armies of Cyrus the Great, the first king of ancient Persia, conquered
the city of Babylon. But it was his next actions that marked a major advance for man. He
freed the slaves, declared that all people had the right to choose their own religion and
established racial equality. These and other decrees were recorded on a baked-clay
cylinder in the Akkadian language with cuneiform script.
Known today as the Cyrus cylinder, this ancient record has now been recognized as
the world’s first charter of human rights. It is translated into all six official languages of
the United Nations and its provisions parallel the first four articles of the universal
declaration of human rights.

2.1.3 The Spread of Human Rights

From Babylon, the idea of human rights spread quickly to India, Greece and
eventually Rome. There the concept of “natural law” arose, in observation of the fact that
people tended to follow certain unwritten laws in the course of life and Roman law was
based on rational ideas derived from the nature of things.
Documents asserting individual rights, such as the Magna Carta (1215), the Petition of
Right (1628), the US Constitution (1787), the French declaration of the rights of man and
of the citizen (1789), and the US bill of rights (1791) are the written precursors to many of
today’s human rights documents.

2.1.4 United States Declaration of Independence (1776)

On July 4, 1776, the United States congress approved the declaration of Independence.
Its primary author, Thomas Jefferson, wrote the declaration as a formal explanation of
why congress had voted on July 2 to declare independence from Great Britain, more than
a year after the outbreak of the American revolutionary war and as a statement
announcing that the thirteen American colonies were no longer a part of the British
Empire. Congress issued the declaration of independence in several forms. It was initially
published as a printed broadsheet that was widely distributed and read to the public.
Philosophically, the declaration stressed two themes : Individual rights and the right
of revolution. These ideas became widely held by Americans and spread internationally
as well, influencing in particular the French revolution.

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2.1.5 The Constitution of the United States of America (1787) and Bill of
Rights (1791)
Written during the summer of 1787 in Philadelphia, the constitution of the United
States of America is the fundamental law of the US federal system of government and the
landmark document of the western world. It is the oldest written national constitution in
use and defines the principal organs of government and their jurisdictions and the basic
rights of citizens.
The first ten amendments to the constitution - the bill of rights - came into effect on
December 15, 1791, limiting the powers of the federal government of the United States
and protecting the rights of all citizens, residents and visitors in American territory.
The bill of rights protects freedom of speech, freedom of religion, the right to keep and
bear arms, the freedom of assembly and the freedom to petition. It also prohibits
unreasonable search and seizure, cruel and unusual punishment and compelled self-
incrimination. Among the legal protections it affords, the bill of rights prohibits congress
from making any law respecting establishment of religion and prohibits the federal
government from depriving any person of life, liberty or property without due process of
law. In federal criminal cases it requires indictment by a grand jury for any capital offense
or infamous crime, guarantees a speedy public trial with an impartial jury in the district
in which the crime occurred, and prohibits double jeopardy.

2.1.6 Declaration of the Rights of Man and of the Citizen (1789)

In 1789 the people of France brought about the abolishment of the absolute monarchy
and set the stage for the establishment of the first French republic. Just six weeks after the
storming of the Bastille and barely three weeks after the abolition of feudalism, the
declaration of the rights of man and of the citizen (French : La Declaration des Droits de
l’Homme et du Citoyen) was adopted by the national constituent assembly as the first
step toward writing a constitution for the republic of France.
The declaration proclaims that all citizens are to be guaranteed the rights of “liberty,
property, security and resistance to oppression.” It argues that the need for law derives
from the fact that “...the exercise of the natural rights of each man has only those borders
which assure other members of the society the enjoyment of these same rights.” Thus, the
declaration sees law as an “expression of the general will,“ intended to promote this
equality of rights and to forbid “only actions harmful to the society.”

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2.1.7 The First Geneva Convention (1864)

In 1864, sixteen European countries and several American states attended a conference
in Geneva, at the invitation of the Swiss federal council, on the initiative of the Geneva
committee. The diplomatic conference was held for the purpose of adopting a convention
for the treatment of wounded soldiers in combat.
The main principles laid down in the convention and maintained by the later Geneva
conventions provided for the obligation to extend care without discrimination to
wounded and sick military personnel and respect for and marking of medical personnel
transports and equipment with the distinctive sign of the red cross on a white
background.

2.2 Geneva Convention of 1864

The first Geneva convention for the Amelioration of the condition of the wounded in
Armies in the field, held on 22 August 1864, is the first of four treaties of the Geneva
conventions. It defines "the basis on which rest the rules of international law for the
protection of the victims of armed conflicts."[1] After the first treaty was adopted in 1864,
it was significantly revised and replaced in 1906, 1929, and finally 1949. It is inextricably
linked to the international committee of the red cross, which is both the instigator for the
inception and enforcer of the articles in these conventions.

2.2.1 History
The 1864 Geneva convention was instituted at a critical period in European political
and military history. Elsewhere, the American Civil War had been raging since 1861 and
would ultimately claim between 750,000 - 900,000 lives. Between the fall of the first
Napoleon at the Battle of Waterloo in 1815 and the rise of his nephew in the Italian
campaign of 1859, the powers had maintained peace in western Europe. Yet, with the
1853 - 1856 conflict in the Crimea, war had returned to Europe and while those troubles
were "in a distant and inaccessible region" northern Italy was "so accessible from all parts
of western Europe that it instantly filled with curious observers;" while the bloodshed
was not excessive the sight of it was unfamiliar and shocking. Despite its intent of
ameliorating the ravages of war, the inception of the 1864 Geneva convention
inaugurated "a renewal of military activity on a large scale, to which the people of
Western Europe… had not been accustomed since the first Napoleon had been
eliminated."

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The movement for an international set of laws governing the treatment and care for
the wounded and prisoners of war began when relief activist Henry Dunant witnessed
the Battle of Solferino in 1859, fought between French-Piedmontese and Austrian armies
in Northern Italy. The subsequent suffering of 40,000 wounded soldiers left on the field
due to lack of facilities, personnel and truces to give them medical aid moved Dunant into
action. Upon return to Geneva, Dunant published his account Un Souvenir de
Solferino.[4] He urged the calling together of an international conference and soon co-
founded the international committee of the red cross in 1863.
The International Committee of the Red Cross (ICRC), while recognising that it is
"primarily the duty and responsibility of a nation to safeguard the health and physical
well-being of its own people", knew there would always, especially in times of war, be a
"need for voluntary agencies to supplement…the official agencies charged with these
responsibilities in every country." To ensure that its mission was widely accepted, it
required a body of rules to govern its own activities and those of the involved belligerent
parties.
Only one year later, the Swiss government invited the governments of all European
countries, as well as the United States, Brazil, and Mexico, to attend an official diplomatic
conference. Sixteen countries sent a total of twenty-six delegates to Geneva. The meeting
was presided over by general Guillaume Henri Dufour. Signed at the Alhambra room at
Geneva's Hotel de Ville (city hall) on 22 August 1864, the conference adopted the first
Geneva convention "for the Amelioration of the condition of the wounded in Armies in
the field".

2.2.2 Representatives of 12 States and Kingdoms Signed the Convention

 Swiss Confederation
 Grand Duchy of Baden
 Kingdom of Belgium
 Kingdom of Denmark
 Kingdom of Spain
 French Empire
 Grand Duchy of Hesse
 Kingdom of Italy
 Kingdom of the Netherlands
 Kingdom of Portugal and the Algarves
 Kingdom of Prussia
 Kingdom of Württemberg

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It "derived its obligatory force from the implied consent of the states which accepted
and applied them in the conduct of their military operations." Despite its basic mandates,
listed below, it was successful in effecting significant and rapid reforms. This first effort
provided only for :
 The immunity from capture and destruction of all establishments for the treatment
of wounded and sick soldiers,
 The impartial reception and treatment of all combatants,
 The protection of civilians providing aid to the wounded, and
 The recognition of the red cross symbol as a means of identifying persons and
equipment covered by the agreement.
Due to significant ambiguities in the articles with certain terms and concepts and even
more so to the rapidly developing nature of war and military technology, the original
articles had to be revised and expanded, largely at the Second Geneva Conference in 1906
and Hague conventions of 1899 and 1907 which extended the articles to maritime warfare.
The 1906 version was updated and replaced by the 1929 version when minor
modifications were made to it. It was again updated and replaced by the 1949 version,
better known as the final act of Geneva conference, 1949. However, as Jean S. Pictet,
director of the international committee of the red cross, noted in 1951, "the law, however,
always lags behind charity; it is tardy in conforming with life's realities and the needs of
humankind", as such it is the duty of the red cross "to assist in the widening the scope of
law, on the assumption that…law will retain its value", principally through the revision
and expansion of these basic principles of the original Geneva convention.

2.3 Universal Declaration of Human Rights

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

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equal rights of men and women and have determined to promote social progress and
better standards of life in larger freedom, whereas member states have pledged
themselves to achieve, in cooperation with the United Nations, the promotion of
universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest
importance for the full realization of this pledge, now, therefore, the general assembly,
proclaims this universal declaration of human rights as a common standard of
achievement for all peoples and all nations, to the end that every individual and every
organ of society, keeping this declaration constantly in mind, shall strive by teaching and
education to promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition and
observance, both among the peoples of member states themselves and among the peoples
of territories under their jurisdiction.
 Article 1
All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood.
 Article 2
Everyone is entitled to all the rights and freedoms set forth in this declaration,
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional
or international status of the country or territory to which a person belongs,
whether it be independent, trust, non-self-governing or under any other limitation
of sovereignty.
 Article 3
Everyone has the right to life, liberty and the security of person.
 Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
 Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.

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 Article 6
Everyone has the right to recognition everywhere as a person before the law.
 Article 7
All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination
in violation of this declaration and against any incitement to such discrimination.
 Article 8
Everyone has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the constitution or by law.
 Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
 Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him.
 Article 11
1. Everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act or
omission which did not constitute a penal offence, under national or international
law, at the time when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the penal offence was committed.
 Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or attacks.
 Article 13
1. Everyone has the right to freedom of movement and residence within the borders
of each state
2. Everyone has the right to leave any country, including his own, and to return to
his country.

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 Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from
non-political crimes or from acts contrary to the purposes and principles of the
United Nations.
 Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.
 Article 16
1. Men and women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending
spouses.
3. The family is the natural and fundamental group unit of society and is entitled to
protection by society and the state.
 Article 17
1. Everyone has the right to own property alone as well as in association with
others.
2. No one shall be arbitrarily deprived of his property.
 Article 18
Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.
 Article 19
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.
 Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.

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 Article 21
1. Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will
shall be expressed in periodic and genuine elections which shall be by universal
and equal suffrage and shall be held by secret vote or by equivalent free voting
procedures.
 Article 22
Everyone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international co-operation and in
accordance with the organization and resources of each state, of the economic,
social and cultural rights indispensable for his dignity and the free development of
his personality.
 Article 23
1. Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring
for himself and his family an existence worthy of human dignity and
supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his
interests.
 Article 24
Everyone has the right to rest and leisure, including reasonable limitation of
working hours and periodic holidays with pay.
 Article 25
1. Everyone has the right to a standard of living adequate for the health and well-
being of himself and of his family, including food, clothing and housing and
medical care and necessary social services and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social
protection.

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 Article 26
1. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available and
higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and
to the strengthening of respect for human rights and fundamental freedoms. It
shall promote understanding, tolerance and friendship among all nations, racial
or religious groups and shall further the activities of the United Nations for the
maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to
their children.
 Article 27
1. Everyone has the right freely to participate in the cultural life of the community,
to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is the
author.
 Article 28
Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this declaration can be fully realized.
 Article 29
1. Everyone has duties to the community in which alone the free and full
development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the
just requirements of morality, public order and the general welfare in a
democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes
and principles of the United Nations.

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 Article 30
Nothing in this declaration may be interpreted as implying for any state, group or
person any right to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms set forth herein.

2.4 Theories of Human Rights

Freedom is the goal rather than the ground of human rights. But freedom is also
essentially dependent on others and other cultures. Achieving the conditions for freedom
- human rights - is humanity's overriding moral obligation.
Since the original UN universal declaration of human rights laid out the general
principles of human rights, there has been a split between what have been regarded as
civil and political rights as opposed to economic, cultural and social rights. It was, in fact,
the denial that both could be considered “rights” that prevented them from being
included in the same covenant. Essentially, the argument for distinguishing the two
concerns the nature of freedom. The civil rights to the freedoms of speech, religion,
assembly, association and so on do not specify the content of the speech, the theology of
the religion or the purpose of the assembly or association. Freedom in such cases is
necessarily value-neutral. In leaving the choice up to the individual, these rights
purposefully abstract from the content of this choice.
The case is quite different for economic, cultural and social rights. All of these
necessarily express values with regard to the forms of our social organization. This is
because they move beyond individual choices to consider the purposes or goals of our
existence together. Thus, the rights to the cultivation of a cultural identity necessarily
impact more than the individuals exercising them. As collective, they affect the society as
a whole. The same holds for the UN sponsored rights of a person “to a standard of living
adequate for the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services.” For a society to honor
these rights involves specific choices with regard to its social content and collective
organization. Such choices embody a particular value - in the UN’s words, that of the
“social security” of the individual. Freedom, here, is freedom for specific social goals. Since
these goals are collective, they have an impact on our individual choices. Thus, while my
right to expressing my opinion need not impact yours, this is not the case for the
economic rights the UN covenant endorses.
The question I want to explore is the nature of the relationship between these two
types of rights. Their differences are clear. Civil and political rights, in abstracting from
specific content, are value-neutral. As such, they express an abstract freedom, generally

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understood as a freedom from government interference. Economic, cultural and social

rights, by contrast, are value-laden. The freedom that they embody is not abstract since it
is, by definition, directed towards specific societal goals. Given this, can we really call
both types “rights” ? Civil and political rights, because of their abstract quality, claim to
be universal. Can the same be said of value-laden rights ? Since values are necessarily
embedded in a culture, does not the inclusion of such rights relativize them to specific
cultures ? Doesn’t it thereby undermine any claim they might have toward universality?
To answer these questions, we have to understand the relation between rights and
freedom. My claim will be that rights are ultimately rights to freedom. Understanding
freedom as the goal rather than the ground of rights gives us an insight into how the two
types of rights function together.

1. The relation of rights and freedom

In the modern period, freedom has traditionally been conceived as innate and, hence,
as independent of our particular social relations. The social contract theorists, for
example, took it as a feature of our being in a “state of nature” prior to society. Thus,
according to John Locke, the “state all men are naturally in … is a state of perfect freedom
to order their actions and dispose of their possessions and persons as they think fit ….” It
is because they have this inherent, pre-social freedom that they can bind themselves to
form the social contract. For Hobbes, who considers the natural state of man a “war of
everyone against everyone,” human freedom is also prior to society. He writes that in
this war, what is commonly called the "right of nature … is the liberty each man hath to
use his own power, as he will himself, for the preservation of his own nature, that is to
say, of his own life.” For both Locke and Hobbes, then, humans are naturally free. This
view is not limited to the Anglo-Saxon tradition. We also find it in Kant, who sees
freedom as a correlate of our rational nature, Whenever we employ our reason to
universalize the maxim of our action - that is, whenever we ask what would happen if
everyone acted in the way we propose to act - we are using our reason to abstract this act
from the determining circumstances of every possible situation. In other words, we use
our reason to apprehend the proposed act as free from all external determinations. We
thereby grasp the possibility of our freely performing it for its own sake. This is the
possibility of our acting independently of the particular rewards or punishments the act
might carry with it in a particular situation.
The conception of political and civil rights that grows out of this view involve the
necessary limitations on our original freedom once we enter into society. In society, we
no longer have a “perfect liberty” to use our power to defend our lives and interests. We

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cede part of this to the state, i.e., to its laws, judges and forces of public order, in exchange
for its defense of our freedoms. Such freedoms, such as those of expression, assembly, petition,
etc., are maintained by us as rights. The ideal here is the maximum amount of individual
freedom consistent with the limitations imposed by our living together. As Kant
expresses this : “A constitution of the greatest possible human freedom according to laws,
by which the liberty of every individual can consist with the liberty of every other … is …
a necessary idea, which must be placed at the foundation not only of the first plan of the
constitution of a state, but of all its laws.”
This, briefly, is the theory behind the notion of value-neutral rights. Their neutrality
stems from the abstract nature of the freedom they rest on. For Locke and Hobbes, this is
the freedom of the isolated self, the self in a state of nature prior to society. For Kant, it is
the freedom of the self-abstracted from all determining circumstances. Put in these terms,
the objections of those who advocate cultural, economic and social rights is clear. It is
that a self-abstracted from its cultural, economic and social situation is an empty
abstraction; and so is the freedom ascribed to this self.
The dependence of freedom (and, hence, of the rights that express it) on our relations
with others is based on the insight that for our freedom to be real, we must have choices.
Such choices are not abstract; they are not pulled from thin air. We grasp them through
our encounters with others. Thus, the child first becomes aware of them as she learns how
to make her way in the human world : How to eat at the table, dress herself, read, ride a
bicycle, and so on. Each new project gives her another option, another way of being and
behaving. It enriches the range of the choices she can conceive. The same happens in later
life. As adults, whatever we see others do tends to be regarded (whether favorably or
unfavorably) as a human capacity. As such, we regard it as one of our own possibilities.
Even though we might never choose to actualize a possibility, it still forms part of what
we could be capable of given the appropriate motivations and circumstances.
This enrichment of our options is also an enrichment of the meanings the world has for
us. These meanings are both linguistic and disclosive. When a child’s caregivers teach her
her initial projects, they accompany this with a constant stream of verbal commentary.
She first learns, for example, the word spoon as she learns to use it to eat. Its meaning is
given by its function, and its function is set by the particular projects her caregivers
introduce her to. As is obvious, the more multiple the projects an object is involved in, the
more multiple are its meanings. Paper, for example, can mean something to start a fire
with (a combustible material). It can also mean something to write upon, something to
fold to make a paper airplane, a surface for drawing, and so on. Each new use discloses a
new aspect of it and adds to what comes to mind in connection with the word. This same

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holds generally. The pragmatic meanings of the objects that fill our world reflect our
understanding of how we and others “make our way” in the world. The multiplicity of
meanings attached to objects and states of affairs is correlated to the multiplicity of our
projects and thus indicates the options that form the content of our freedom.
Given that others provide us with the choices that make up freedoms content and
given as well that the very language that we use to communicate these choices is
provided by them, we cannot speak of the freedom of an abstractly isolated person.
Human freedom, the freedom that goes beyond instinctively directed animal desire, is an
intersubjective construct. As such, it is vulnerable to the actions of others. Our exposure
to the choices they offer can be limited by our political, economic, cultural and social
circumstances. Politically, limitations can be placed on speech and assembly, thus
limiting our exposure to alternate ways of being and behaving. Tyrannies, for example,
strive to produce a populous that has no idea of such alternatives. Their ideal is a
citizenry that thinks, acts and discloses the world according to a limited number of state
approved projects. So disclosed, this world cannot offer any evidence running counter to
the claims of the state. Freedom in such a world operates within a limited set of options,
each of which, when enacted, confirms the others in disclosing a single reality, one with
no evident alternatives. Such limitations, of course, need not be only political. They can
just as well be economic, cultural and social. Thus, our exposure to alternatives can be
limited by cultural and social norms. It can also be a function of our economic status. If
we lack a standard of living adequate for our “health and well-being,” that is, if we lack
the “food, clothing, housing and medical care” that constitute such a standard, then the
choices open to us are necessarily limited. The same holds for the “social services”- such
as the opportunities to obtain an education - that would allow us to better our condition.
All of these impact the content of our freedom. To speak of rights in this context is to
recognize that both notions of rights - both the value-neutral and the value-laden - are not
the expressions of an original abstract freedom. They rather state the requirements for
freedom’s concrete realization.

2. Implications
There are several implications that can be drawn from the above. The first is that
freedom is socially constituted. It arises in our presenting each other alternative ways of
acting based on alternative ways of interpreting our common reality. Each such
alternative increases our awareness of the options available to us and hence, enriches the
content of our freedom. To paraphrase Kant, without the experience of such alternatives,
the concept of freedom is empty, just as without the concept of freedom, the experience of

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such alternatives is blind. Thus, without the requisite experience, freedom remains simply
an abstract notion. It designates the idea of changing our condition without any
conception of what such changes would be. Similarly, without this idea, that is, without
our taking the alternatives presented to us as possibilities we could achieve, our
experience of them is blind in the sense that it has no ordering principle. We do not grasp
them as alternatives possible for us.
That both are required leads to the second implication. This is that the rights
associated with freedom are both negative and positive. Negative rights are the restraints
on power that are required to keep open for us the various possibilities of being human.
The classic formulation of the restraints on political power occurs in the US bill of rights.
It is that “Congress shall pass no law … abridging” the freedoms of the press, speech,
assembly, religion, and so on (Art 2). Positive rights involve our ability to achieve the
possibilities presented to us by others. Thus, the right to education is fundamental to our
ability to change our social-economic condition. While we learned our original projects
through the observation and imitation of our caregivers, most require the training that
only public education can provide.
The concept of freedom implies more than the simple ability to change our condition.
As involving the options presented to us by others, it is, as I said, an intersubjective
construct. Expressed subjectively, its conception expresses our capacity to surpass
ourselves by changing ourselves. This capacity points to a certain excessive quality of our
selfhood. Insofar as we internalize the possibilities presented by others - that is, recognize
them as part of our human possibilities-we always exceed the predictions that can be
made about us from our past behavior. We are free in the sense of not being predictable.
The excess behind this characterizes our ontological condition as social animals. Given
our finitude, we can never exhibit all that we are capable of since the source of the latter is
the others who exceed us. In other words, the source of this excess is the richness of
human possibilities presented by our intersubjective world. Objectively regarded,
freedom is this very richness. The increase of freedom is its increase. Such an increase is
accomplished through the exercise of our human rights, both negative and positive.
With this, we have our third implication, which is that human rights are not based on
some original, abstract freedom. They are not the remnants of it reserved to us after the
foundation of the state. They are rather the means by which we first achieve our human
freedom. Freedom, in other words, is the goal rather than the ground of human rights. As
socially constructed, it is a teleological concept. So conceived, freedom is the correlate of
the possibilities open to the self. It expresses the richness of the intersubjective realm and,
hence, the richness of the lives of the subjects that constitute this realm.

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This leads me to the fourth implication, which is that rights are not per se absolute;
they are rather relative to this goal. Their claim to universality must, in other words, be
evaluated in terms of their serving as conditions for its realization. Take, for example, the
recent US supreme court ruling that treated corporate expenditures for political
advertisements as a form of speech and, hence, as protected by the right of free speech.
The ruling took this right to be absolute and, hence, as universally applicable to
corporations as well as individuals. In the theory I am proposing, the corporate exercise
of this right would have to be evaluated in terms of the goal of political diversity. Would
it add to or diminish the political options available to the public ? Would it increase or
decrease a candidate’s ability to present such options to the public ? The right’s
applicability to political donations would be conditioned on how it contributed to the
richness of the intersubjective, political realm.

3. Freedom and culture

Given our nature as social animals, many of the projects we engage in are
accomplished with others. The initial “I can” of our first projects, such as “I can” ride a
bicycle or I can “dress myself,” becomes expanded to an “I can” that functions along with
others in various projects. This expansion is correlated to the ways we disclose the world
and, indeed, to our own identities as the accomplishers of these collective projects. What
we have here is a series of I can’s, which begins with our physical abilities to perceive,
manipulate and, hence, disclose the physical characteristics of objects and which ends in
our disclosure of and participation in a given, collectively constituted, cultural world. In
this series, each level serves as a foundation for the next. Thus, the “I can” that is
correlated to the grasp of a violin as a physical presence is required for the “I can” that
discloses it as musical instrument by playing it. This, in turn, is required for the “I can
play with others” that discloses the violin’s role in a string quartet. Correlated to this last
is the disclosure of the player as a member of this ensemble. It is also the disclosure of a
world, that of the music written for the players that can only exist as a correlate of their
activity. The pattern exhibited here is perfectly general. It can, for example, be applied to
the constitution of the world of an aboriginal hunting party. The collective activities of its
members enact this world, which itself rests on the activities that constitute the pragmatic
senses of its individual elements - for example, those senses expressing the uses of the
weapons employed. On the basic founding level, we encounter those bodily activities,
such as turning one’s head, focusing one’s eyes, grasping with our hands, etc., that are
involved in manifesting their bare physical presence.

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To speak of rights in this context is, first of all, to speak of the means for enacting such
collective I can’s and hence, for activating the corresponding self-identities of the
participants. This can be illustrated by a negative example. With the enclosure of hunting
grounds for the purposes of farming and pasturage, aboriginal hunting cultures in
Canada suffered a collapse. Not only were their members deprived of their means of
supporting themselves, their identities as hunters and, therefore, as providers, vanished
along with the world that their collective “I can” once constituted. The result was the
destruction of their societies. The categories by which they made sense of both their
world and themselves were no longer operable. Cultural rights are meant to prevent such
destruction. Once again we can speak of negative and positive rights. Understood
negatively, such rights involve the restraints on state power that keep open the
possibilities of enacting a collective “I can” and thus maintaining a corresponding self-
identity. These typically include the rights to speak, write, form schools, and teach in the
language that bears a particular culture. Understood positively, such rights entail the
obligations the state undertakes to support a culture. In Canada, for example, the Charter
of Rights and Freedoms obligates the state to provide its English and French minorities
with an education and public services in their own language (Art 23).
To see such obligations as the fulfillment of rights, more is required than their position
as means for enacting a collective “I can.” In the theory that I am advocating, we must
also see this “I can” as an option of our freedom, that is, as part of the richness of the
intersubjective world. This means that such rights are not absolute, but relative. As with
all other rights, they must be shown to contribute to our freedom, that is, increase the
diversity of the world in which we dwell. Thus, such rights cannot be limited to a
dominant culture. They must include different cultures as well as the establishment of
the public spaces necessary for their interaction. They must also include the rights of
individuals to absent themselves from their cultures, that is, not follow their norms, but
rather embrace other standards of being and behaving.

4. The temporality of culture and citizenship

Can cultures tolerate such openness ? Can they really enter into a public space where
they are forced to interact ? Such questions arise when we define culture in terms of
racial identity and inherited religious traditions. To the point that such features cannot be
shared, culture is exclusionary. As such, it is necessarily opposed to the inclusivity of
modern citizenship. To be a citizen in a modern state is to take part in its shared projects.
It is to participate in its decision making and to bind oneself to fulfill the obligations such
decisions entail. So conceived, the identity of a citizen is not based on the past. It abstracts

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from the ethnic or religious backgrounds of society’s members. Its focus is on the future
as present in the projects of political action. Those who participate in this action gain their
identities from it, i.e., from the roles they play in the accomplishment of the agreed-upon
goals. Given this, don’t we have two opposed conceptions of social cohesion, one based
on what we inherited from the past, the other on what we want to accomplish in the
future?
Such a view is too abstract. For society to function, both conceptions are required.
Human temporality includes both the past and the future. Thus, a culture without a sense
of the future is static. To the point that it simply preserves its inherited traditions, it
becomes a museum piece. It gains a future in its encounter with the new. This,
necessarily, is an encounter with the other. This is why Levinas writes, “the other is the
future.” His meaning is that the future, in offering us the new, springs from an
interpretation, a view of the world that is different from our own. It springs, in fact, from
the other who interprets it from a different set of experiences. This holds both
individually and collectively. The encounter with another culture can, of course, be
destructive. But, within the framework of the cultural rights defined above, it can also
allow a culture to renew itself and grow. This is because confronting the other, it has to
respond to being called into question. Faced with an alternative way of being and
behaving, its members are called on to consider why they interpret the world in the way
they do.
The point may be put in terms of the freedom that is the goal of human rights. This, I
have stressed, is the freedom afforded by others with their different ways of being and
behaving. Insofar as these ways are culturally structured, we have to say that freedom
presupposes culture as the soil from which it springs. It proposes it in the alternatives
offered by the other culture. It also presupposes one’s own culture as that which such
alternatives call into question. One’s own culture is presupposed as that which is
transcended in the new perspective gained. This perspective does not float in the air. If it
is to endure, it has to become anchored in one’s own culture, that is, become part of its
accomplished past. It is here that the abstractions from ethnic and religious identity that
define modern citizenship play their crucial role. Such abstractions embody the
transcendence necessary for cultural renewal. They do so by suspending the exclusivity
that would prevent cultures from encountering each other. Such abstractions, however,
have no sense apart from the inherited factors (the contribution of the past) that are
offered and transcended. The process of a living, self-renewing culture points, then, to the
complex reality of human life. To grasp it, we cannot take culture, political life and

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freedom as abstract notions. They are all part of the concrete temporalization of human
life in which the encounter with the new becomes part of our collective identity.
It is in terms of this identity that we have to say that both value-neutral and value-
laden rights are human rights since both are required for the realization of our freedom.
Their claim to universality is actually to the universality of this goal. If we take freedom
as essential for our being human, then the requirements for its realization are human
rights in the sense that they are required by our humanity. The point, however, is to see
such humanity as a goal, not a given. Rather than something we are born with, it is, along
with the freedom that characterizes it, something we have to achieve. This achievement
is, in fact, our overriding moral obligation. To be human is to obligate ourselves to
accomplish our humanity.

Two Marks Questions with Answers

PART A

Q.1 What is Geneva convention ?

Ans. : The Geneva conventions comprise four treaties, and three additional protocols, that
establish the standards of international law for humanitarian treatment in war. The
singular term Geneva convention usually denotes the agreements of 1949, negotiated in the
aftermath of the Second World War (1939–1945), which updated the terms of the two 1929
treaties, and added two new conventions.
Q.2 Write short note on universal declaration of human rights, 1948.
Ans. : The Universal Declaration of Human Rights (UDHR) is a historic document that was
adopted by the United Nations general assembly at its third session on 10 December 1948
The declaration consists of 30 articles affirming an individual's rights. The declaration was
the first step in the process of formulating the International bill of human rights, which was
completed in 1966 and came into force in 1976, after a sufficient number of countries had
ratified them.
Q.3 Define petition of right (1628).
Ans. : The next recorded milestone in the development of human rights was the petition of
right, produced in 1628 by the English Parliament and sent to Charles I as a statement of
civil liberties.
Q.4 United States declaration of independence (1776).
Ans. : On July 4, 1776, the United States congress approved the declaration of
independence. Its primary author, Thomas Jefferson, wrote the declaration as a formal
explanation of why Congress had voted on July 2 to declare independence from Great
Britain, more than a year after the outbreak of the American Revolutionary War, and as a
statement announcing that the thirteen American Colonies were no longer a part of the
British Empire.

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Q.5 List representatives of 12 states and kingdoms signed the convention.

Ans. :
 Swiss Confederation
 Grand Duchy of Baden
 Kingdom of Belgium
 Kingdom of Denmark
 Kingdom of Spain
 French Empire
 Grand Duchy of Hesse
 Kingdom of Italy
 Kingdom of the Netherlands
 Kingdom of Portugal and the Algarves
 Kingdom of Prussia
 Kingdom of Württemberg
Q.6 Define universal declaration of human rights
Ans. : The general assembly, proclaims this universal declaration of human rights as a
common standard of achievement for all peoples and all nations, to the end that every
individual and every organ of society, keeping this Declaration constantly in mind, shall
strive by teaching and education to promote respect for these rights and freedoms and by
progressive measures, national and international, to secure their universal and effective
recognition and observance, both among the peoples of Member States themselves and
among the peoples of territories under their jurisdiction.
Q.7 Define Article 28.
Ans. : Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realized.
Q.8 Define theories of human rights.
Ans. : Freedom is the goal rather than the ground of human rights. But freedom is also
essentially dependent on others and other cultures. Achieving the conditions for freedom -
human rights - is humanity's overriding moral obligation.
Q.9 Define Article 27.
Ans. :
1. Everyone has the right freely to participate in the cultural life of the community, to
enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he is the author.

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Q.10 Define Article 29

Ans. :
1. Everyone has duties to the community in which alone the free and full development
of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic
society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.

Review Questions
PART B

1. Explain Geneva convention of 1864. (Refer section 2.1.7)

2. Explain universal declaration of human rights, 1948. (Refer section 2.3)
3. Explain the Theories of human rights. (Refer section 2.4)
4. Explain evolution of the concept of human rights Magana Carta. (Refer section 2.1)



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Notes

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 UNIT-III

3
Theories and Perspectives
of UN Laws

Syllabus
Theories and perspectives of UN Laws – UN Agencies to monitor and compliance.

Contents
3.1 Theories and Perspectives of UN Laws

3.2 UN Agencies to Monitor and Compliance

Two Marks Questions with Answers

Review Questions

(3 - 1)
Human Rights 3-2 Theories and Perspectives of UN Laws

3.1 Theories and Perspectives of UN Laws

3.1.1 Sources of International Law

 International law is sourced from decision makers and researchers looking to verify
the substantive legal rule governing a legal dispute or academic discourse.
 The sources of international law by the community of nations to the find the content
of international law are listed under of the statute of the international court of
justice : Treaties customs and general principles are stated the three primary
sources; and judicial decision and scholarly writings are express designated as the
subsidiary sources of international law.
 Many scholars agree that the fact then the sources are arranged sequentially in the
article 3f of the ICJ statute suggests an implicit hierarchy of sources.
 However there is no concrete evidence in the decisions of the international courts
and tribunals, to support such strict hierarchy at least it is about choosing
international customs and treaties.
Sources of International Law :
 International law is sourced from decision makers and researchers looking to verify
the substantive legal rule governing a legal dispute or academic discourse.
 The sources of international law by the community of nation to the find the content
of international law are listed under of the statute of the international court of
justice : Treaties customs and general principles are stated the three primary
sources; and judicial decision and scholarly writings are express designated as the
subsidiary sources of international law .
 Many scholars agree that the fact then the sources are arranged sequentially in the
article 3f of the ICJ statute suggests an implicit hierarchy of sources.
 However there is no concrete evidence in the decisions of the international courts
and tribunals, to support such strict hierarchy at least it is about choosing
international customs and treaties.
 On like ARTICLE 21 of the Rome statute of the international criminal court , which
clear defines hierarchy of applicable law, the language the article 38 do not explicitly
support hierarchy of sources.
 The sources have been influenced by range of political and legal theories. ARTICLE
13 of general assembly to initiate obligate and make recommendations which
encourage the progressive development of international law and its codification.

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Human Rights 3-3 Theories and Perspectives of UN Laws

 Evidence of consensus or state practice can sometimes be derived from

intergovernmental resolutions or academic and expert legal opinion
(sometimes collectively termed soft law).

3.1.2 Private International Law

 The conflict of laws in civil law jurisdictions is often called as “private international
law”.
 It is distinguished from public international law because it governs conflicts
between private persons rather then states (or other international bodies with
standing).
 It concerns then questions of which jurisdiction should be permitted to hear a legal
dispute between private parties and which jurisdictions law should be applied,
therefore raise issues of international law.
 Corporations are increasingly capable of shifting capital and labor supply chains
across borders, as well as trading with overseas corporation .
 This increases the no of dispute of an interstate nature outside a unified legal
framework and raises of it enforceability of standard practices.

3.1.3 Supranational Law

 Systems of “supranational law” arise where nations explicitly ceale their right to
make certain judicial decisions to a common tribunal.
 The decisions of the common tribunal are directly effective in each party nation and
have priority over decision taken by national courts.
 The European union is an example of an international treaty organization which
implement a supranational legal framework, with the European court of justice
heaving supremacy over all member-nation courts in matter of European union law.

3.1.4 The Horizontal Dimension

 Three perspectives on human rights In order to point to the academic void in the
research on the universality of human rights it is necessary to set the stage by
categorizing the different perspectives on how to approach human rights. Whatever
approach you follow, they all ground in an empirical problem, meaning that the
reason for their appearance can be traced back to a concrete threat to human beings,
to their dignity or freedom, in human history.

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Human Rights 3-4 Theories and Perspectives of UN Laws

3.1.5 Moral Perspective

 Based on the negative reality as described above an ideal counterpart has been
developed : A normative moral perspective on human rights.
 Tonnies clarifies, that this perspectives displays what ought to be and not what is; it
cannot be justified scientifically (understanding the term in a narrow and quasi-
natural scientific way).
 Consequently, the moral perspective is an imaginary, normative ideal.
 Amartya Sen emphasizes that this is the primary character of human rights.

3.1.6 Dignity
 The term dates back to ancient Greece but is firmly in focus of the moral human
rights approach only since the enlightenment. Immanuel Kant defined dignity as
follows :
 Despite its unclear definition and highly debated benefit, the term “dignity” can be
found in nearly every declaration of human rights and often serves as final
justification for debates about contested human rights.

3.1.7 Human Nature

 Human rights are founded on the nature of the human being, meaning that there is
something in our nature that justifies the special rights we claim.
 "The universal term 'man' already conceals the assertion that all people have an
essential quality in common and it is the same quality, which is considered as
dominant over all other heterogeneous qualities that the statement appears to be
justified that people are ‘equal’ despite their apparent diversity.”

3.1.8 Political Perspective

 Inspired by the normative ideals developed within the moral approach, the political
perspective transfers theory into practice.
 The results emerge from a concrete process based on negotiations between
contracting parties.
 The idea behind this approach is, as Menke and Pollmann sum up, that moral rights
are obligations single human beings are liable to.
 Human rights, however, are obligations political representatives in charge of the
public order are liable to.

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Human Rights 3-5 Theories and Perspectives of UN Laws

3.1.9 Legal Perspective

 Whereas the UDHR is only a declaration stating a common will and is not legally
binding, it has served as foundation for the following two UN human rights
covenants, which are actually legally binding :
 The international covenant on civil and political rights and the international
covenant on economic, social and cultural rights both adopted in 1966.
 All legally binding conventions - be it the seven UN conventions following the two
covenants as well as the optional protocols 41 or the treaties established by different
regional human rights regimes.
 International laws is the set of rules generally regarded and accepted as binding in
relations between states and between nation.
 It serves as a framework for the practice of stable and organized international
relations.
 International law differs from state legal systems in that it is primarily applicable to
countries rather than to private citizens.
 National law may become international law when treaties delegate national
jurisdiction to supranational tribunals such as the Europe court of human rights or
the international crime court.
 Treaties such as Geneva conventions may require national law to conform to
respective parts.

3.1.10 Theories of Human Rights

 In order to have a comprehensive understanding of human rights, a look at the
various theories becomes necessary to observe the shifting of priority of rights
during the different phases of history.
 These theories provide the basis to determine the precise subject matter upon which
there could be an agreement. An incisive insight into the major theories of rights is
as follows :
 The theory of natural rights
 This is the earliest theory of rights.
 Its origin can be traced back to the ancient Greeks. According to this theory, rights
belong to the man by nature and thus are self-evident truths.
 They are considered as inborn absolute, pre-civil and presocial. They can be asserted
anywhere and everywhere.

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Human Rights 3-6 Theories and Perspectives of UN Laws

 Thomas Paine, Grotius, Tom Paine and John Locke, to name a few, are the main
exponents of this theory.
 These theorists derived their ideas about rights from god, reason or a prior moral
assumption.
 To them, every individual possesses a unique identity and is expected to account his
actions as per his own conscience.
 However, the critics of the natural rights theory argue that rights are not abstract,
absolute or unidentified phenomenon.
 Liberty, as they argue, lives within restraints. So, restraints upon rights create social
conditions where everyone has a share to develop his personality and
correspondingly has his obligations to others.
 Rights and obligations, in fact, are the two sides of the same coin.
 Despite the above shortcomings, the theory of nature! rights inspired the idea that
any kind of unjust, arbitrary oroppressive treatment to human beings is an assault
upon humanity itself.
 Apart from this, it also provided the basis, for the English, French and American
revolutions, thereby resulting in the bill of rights.

3.1.11 The Legal Theory of Rights

 This theory is a reaction against the theory of natural rights.
 Advocates of this theory argue that the ideas of natural law and natural rights are
abstract and ridiculous phenomenon.
 Hence, the existence and enjoyment of fundamental rights of an individual could be
better maintained and practiced by the state rather than by the individual himself.
 Thomas Hobbes, John Austin and Jeremy Bentham are the main propounded of this
theory.
 According to them, rights are purely utilitarian concepts and thus the rule and
regulations are necessary for identification and protection of one’s rights.
 Towards this end, every individual has to sacrifice certain rights and freedoms for
the general welfare of the society.

3.1.12 The Anti-utilitarian Theory of Rights

 There are yet other theorists who strongly argue that foe priority of foe well-being of
foe majority as stated by the utilitarian is not foe prime objective of state.
 Amongst them Dowrkin, Nozic and John Rawls are the leading ones.

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Human Rights 3-7 Theories and Perspectives of UN Laws

 They hold the view that foe welfare of foe majority might lead to detrimental
consequences as far as foe welfare of a particular person or a group of persons is
concerned.
 So there has to be proper reconciliation between the well being of the majority and
individual well-being for the better enjoyment of social and individual rights.
 Today, the demand for right to development on international foray is perhaps the
manifestation of this theory.

3.1.13 The Legal Realist Theory of Rights

 The legal realist theory of rights is of recent origin. It mainly originated in U.S.A.
with the expansion of regulatory activities followed by president Roosevelt’s “New
Deal Policy.”
 A group of jurists such as Karl Liewellyn, Roscoe Pound and others discussed the
point as to what law does, rather than what law is, in a highly complex and
industrialized society.
 These theorists did not propound a common theory of rights.
 Rather, they considered rights as the end product of both the interaction of
prevailing moral values of the society as well as foe broad-based international
sharing of values.
 So human rights, as they argue, are nothing but a manifestation of an on-going
process rather than a theoretical debate.
 This kind of a new approach to the concept of rights does away with foe problems
relating to foe abstract nature of foe concept.
 However, this theory goes about questioning the existing laws, their values and foe
actions, so far enacted upon foe society.
 In other words, it questions the shortcomings and ineffectiveness of the existing
laws but does not prescribe any solution in the form of super-value of a human
being.

3.1.14 The Marxist Theory of Rights

 Rights, according to Marx are simply a bourgeois concept and a product of
bourgeois capitalist society primarily designed to maintain 13 and reinforce the
predominant position of the ruling class.
 This theory of rights is very simple and to a certain extent convincing too.

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Human Rights 3-8 Theories and Perspectives of UN Laws

 Marx regards the state as a coercive agency to uphold the particular type of social
organization and law is a 16 tool of the state that perpetuates and safeguards the
interest of the dominant group in the society.
 He firmly believes that rights can exist and flourish only in a classless society where
all are equal and no one is an exploiter.
 Social and economic rights are, thus, the main concern of this theory.

3.2 UN Agencies to Monitor and Compliance

Once a country becomes a party to a multilateral environmental agreement, it should
commence compliance and enforcement efforts. These are of two broad types :
 Substantive : Moving toward employing specific measures that improve the
particular environmental issue committed to in a particular MEA; and,
 Procedural : Meeting with the procedures established by the MEA, such as, for
example, reporting on the status of national implementation.
 “Compliance” means the state of conformity with obligations, imposed by a state,
its competent authorities and agencies on the regulated community, whether
directly or through conditions and requirements in permits, licences and
authorizations, in implementing multilateral environmental agreements;
 “Implementation” refers to, all relevant laws, regulations, policies and other
measures and initiatives, that contracting parties adopt and/or take to meet their
obligations under a multilateral environmental agreement and its amendments, if
any.
 “Enforcement” means the range of procedures and actions employed by a state, its
competent authorities and agencies to ensure that organizations or persons,
potentially failing to comply with environmental laws or regulations implementing
multilateral environmental agreements, can be brought or returned into compliance
and/or punished through civil, administrative or criminal action.
 In general, then, compliance is brought into play in the international framework
while enforcement is a concept to be used in national perspectives.

3.2.1 UNEP’s Guidelines on Compliance with and Enforcement of MEAs

 UNEP has developed a series of advisory guidelines to steer compliance with and
enforcement of MEAs.
 They are divided into two blocks :
 Dealing with enhancing compliance with MEAs and,

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Human Rights 3-9 Theories and Perspectives of UN Laws

 Dealing with national enforcement and international cooperation in combating

violations of laws implementing MEAs.

3.2.2 Roles of Non-governmental Actors in Compliance and Enforcement

 Developing national campaigns to promote adoption of a certain multilateral
accord;
 Providing research to relevant state actors on the MEA and its implementation;
 Providing information to relevant state actors on the MEA and its implementation;
 Training relevant stakeholders and decision - makers in implementation and
enforcement practices;
 Taking part in expert groups related to multilateral environmental accords;
 Participating in consultations for the establishment of national implementation
plans or strategies;
 Using international agreements a country is party to as leverage for domestic
application of norms;
 Providing informed opinions regarding implementation of MEAs at the national
level, articulating domestic limitations and priorities.

3.2.3 Compliance with MEAs

 Compliance with MEAs is achieved through the establishment of norms, laws,
permits, licenses, authorizations and national plans imposed for implementing
multilateral environmental agreements.
 Mechanisms for implementation can include :
 National action plans or national strategies.
 Reporting, monitoring and verification.

3.2.4 National Action Plans or National Strategies

 Take stock of the issue at the national arenas, involving all relevant sectors of the
state and stakeholders.
 Express how a nation will meet its MEA-related requirements.
 Recognize which are the gaps present in national policies or domestic situations that
can forestall the application of multilateral treaties and generate consciousness;
engender collaboration and exchange between different relevant areas of the state
dealing with a subject and to bring in stakeholders' opinions, knowledge and
diagnostics in early stages of plan’s development.

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Human Rights 3 - 10 Theories and Perspectives of UN Laws

3.2.5 National Action Plans or National Strategies Stakeholder Roles

 A very first step for all national strategies and plans is to identify and involve
stakeholders.
 There are many examples of national strategies where civil society groups have
taken a leading role in developing them.

3.2.6 Reporting, Monitoring and Verification

 In order to comply with MEAs it is not enough to just abide by the set requirements.
Nations must also report, monitor and verify these conditions.
 A significant element in reporting, monitoring, and verification activities is that it
allows stakeholders, governmental administrations and the international
community to gauge what have been the accomplishments in MEA application and
how to steer this further.
 Monitoring means the close observation of a situation or individual case carried out
so as to determine what further action needs to be taken.
The following elements constitute monitoring :
a. It is carried out over an extended period of time.
b. It involves collecting or receiving a large quantity of data.
c. Close observation of the situation is done through constant or periodic examination
or investigation and documentation of developments.
d. Standards or norms are used as reference in objectively assessing the situation or
case in question, especially in determining what is wrong with it.
e. Tools or instruments are used in identifying how the situation compares with
established standards or norms.
f. The product of monitoring is usually a report about the situation.
g. The report embodies an assessment of the situation which provides a basis for
further action.

3.2.7 The Numerous Instruments on Human Rights can be Categorised as

Follows
 General and special instruments.
 Global and regional instruments.
 Binding and non-binding instruments.

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Human Rights 3 - 11 Theories and Perspectives of UN Laws

 A general instrument, such as the universal declaration of human rights, comprises

a wide range of human rights.
 A special instrument on the other hand deals with specific subjects such as rights of
women, rights of the child, employment, freedom of information, etc.
 Global instruments are those produced by global organisations like the United
Nations and the international labour organisation.
 Regional instruments are those produced by regional mechanisms like the African
union, organisation of American states and the council of Europe.
 Instruments could be binding or non-binding on states. Declarations such as the
universal declaration of human rights or the American declaration on the rights and
duties of man are not legally binding, but just the same form part of international
law and are often quoted in national law and jurisprudence.
 They are expressions of good intentions and as such carry great moral force.
 A non-binding instrument also has an impact on a bigger number of states because
it is adopted by the whole governing body of an IGO, such as the United Nations
general assembly.

3.2.8 Supervisory Mechanisms

 Treaty-based mechanisms
 Non-treaty based mechanisms

3.2.9 Treaty-Based Mechanisms

 They enshrined in legally binding human rights instruments or conventions.
 Within the UN framework, these mechanisms are often called as “theory bodies”
e.g. the human rights committee and the committed on the rights of the child.
 The Africa commission and future low justice and human rights.
 The European court of human rights.
 Inter-American court of commission of human rights.

3.2.10 Non-Treaty Based Mechanisms

 Supervisory mechanisms not based on legally binding human rights treaty
obligations.
 It is based on the constitutional or charter of an intergovernmental human rights
forum, on decisions taken by the assembly or a presentative body of the forum in
question.

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Human Rights 3 - 12 Theories and Perspectives of UN Laws

 Under the UN framework, the non-treaty based mechanisms are referred to as

charter-based mechanisms, which included the human rights country 1503
procedure, the universal peer review and special procedure. The various
supervisory procedure establishes in human rights treaties can be divided into four
main groups.
 Reporting procedure - periodic reporting to a supervisory body. Report is analyzed
by the relevant supervisory body, which comments on the report and may request
the state concerned to furnish more information.
 Inter-state complaint procedure : Allows state parties to initiate a procedure against
another state party which is thought not to be fulfilling its obligations under the
instrument.

3.2.11 Individual Complaint Procedure

 Individuals should be enabled to initiative proceedings to protect their rights.
 Such a procedure, whereby an individual holds a government directly accountable
before an international supervisory body, aims to afford far-reaching protection of
the individual.

3.2.12 Inquiries and other Procedures

 Most involve inquiries but other very entail initiatives aimed at preventing
violations or promoting compliance specific human rights.
 Supervisory bodies play a passive as they can’t initiate proceedings, they are largely
dependent on information submitted by government.

3.2.13 UN Bodies Primarily Concerned with Human Rights

 Human rights council.
 Sub-commission on prevention of discrimination and protection of minorities.
 Commission on the states of women.
 UN high commissioner for human rights.
 UN centre for human rights.
 Other UN bodies for special purpose.

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Human Rights 3 - 13 Theories and Perspectives of UN Laws

3.2.14 UN Commission on Human Rights

 Prior to the present human rights council, there was UN commission on human
rights which rendered signal service for the observance and respect for the human
rights.
 The commission on human rights established by the economical and social council in
February 1946 is the nearest approach to permanent machinery for the supervision of
the problems of protection of human rights

Two Marks Questions with Answers

PART A

Q.1 Explain sources of international law.

Ans. : International law is sourced from decision makers and researchers looking to verify
the substantive legal rule governing a legal dispute or academic discourse.
Q.2 Define private international law.
Ans. : The conflict of laws in civil law jurisdictions is often called as “private international
law”.
Q.3 Supranational law ?
Ans. : Systems of “supranational law” arise where nations explicitly ceale their right to
make certain judicial decisions to a common tribunal. The decisions of the common
tribunal are directly effective in each party nation, and have priority over decision taken by
national courts.
Q.4 Define moral perspective.
Ans. : Tonnies clarifies, that this perspectives displays what ought to be and not what is; it
cannot be justified scientifically (understanding the term in a narrow and quasi-natural
scientific way).Consequently, the moral perspective is an imaginary, normative ideal.
Q.5 Explain the UN convention on the rights of the child, Article 32.
Ans. : The UN convention on the rights of the child, Article 32 deals with child labour by
recognizing the right of a child to be protected from economic exploitation and from doing
hazardous or harmful work. This deals not only with physical harm, but also harm to the
mental, spiritual, moral or social development of the child.
Q.6 What are ESC rights ?
Ans. : ESC : Economic, Social and Cultural (ESC) Rights. All these rights are required in
order to :
 Ensure the survival and life of the child, and ensure a bare minimum quality of life
for the child.

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Human Rights 3 - 14 Theories and Perspectives of UN Laws

Q.7 What is international law ?

Ans. : International law defines the legal responsibilities of states in their conduct with each
other, and their treatment of individuals within state boundaries. Its domain encompasses
a wide range of issues of international concern, such as human rights, disarmament,
international crime, refugees, migration, problems of nationality, the treatment of
prisoners, the use of force and the conduct of war, among others. It also regulates the
global commons, such as the environment and sustainable development, international
waters, outer space, global communications and world trade.
Q.8 Define non-treaty based mechanisms.
Ans. : Supervisory mechanisms not based on legally binding human rights treaty
obligations. It is based on the constitutional or charter of an intergovernmental human
rights forum, on decisions taken by the assembly or a presentative body of the forum in
question.
Q.9 List UN bodies primarily concerned with human rights.
Ans. :
 Human rights council.
 Sub-commission on prevention of discrimination and protection of minorities.
 Commission on the states of women.
 UN high commissioner for human rights.
Q.10 What is UN commission on human rights ?
Ans. : Prior to the present human rights council, there was UN commission on human
rights which rendered signal service for the observance and respect for the human rights.

Review Questions
PART B

1. Explain the theories of UN laws. (Refer section 3.1)

2. Describe perspectives of UN laws. (Refer section 3.1)
3. Outline UN agencies to monitor and compliance. (Refer section 3.2)



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 UNIT-IV

Human Rights in
4 India-Constitutional
Provisions / Gaurantees
Syllabus
Human Rights in India - Constitutional Provisions / Guarantees.

Contents
4.1 Fundamental Rights

4.2 Fundamental Duties Article 51 A

4.3 Directive Principles of State Policy : Articles 36-51

4.4 Constitutional Provisions / Guarantees

Two Marks Questions with Answers

Review Questions

(4 - 1)
Human Rights 4-2 Human Rights in India-Constitutional Provisions / Guarantees

4.1 Fundamental Rights

 Derogation of the fundamental rights
 Prohibition of discrimination
 Right to education
 Freedom as to attendance at religious instruction
 Right of minorities.

4.1.1 Laws Inconsistent with or in Derogation of the Fundamental Rights

Article 13
1. All laws in force in the territory of India immediately before the commencement of
this constitution, in so far as they are inconsistent with the provisions of this part,
shall, to the extent of such inconsistency, be void.
2. The state shall not make any law which takes away or abridges the rights conferred
by this part and any law made in contravention of this clause shall, to the extent of
the contravention, be void.
3. In this article, unless the context otherwise requires,
a. Law includes any ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law;
b. Laws in force includes laws passed or made by a legislature or other competent
authority in the territory of India before the commencement of this constitution
and not previously repealed, notwithstanding that any such law or any part
thereof may not be then in operation either at all or in particular areas.
4. Nothing in this article shall apply to any amendment of this constitution made
under article 368.

4.1.2 Prohibition of Discrimination - Article 15

1. The state shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction.
a. Access to shops, public restaurants, hotels and places of public entertainment;
b. The use of wells. tanks, bathing ghats, roads and places of public resort aintained
wholly or partly out of state funds or dedicated to the use of the general public.

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3. Nothing in this article shall prevent the state from making any special provision for
women and children.
4. Nothing in this article or in clause (2) of article 29 shall prevent the state from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the scheduled castes and the scheduled tribes.

4.1.3 Right to Education - Article 21A

1. The state shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the state may, by law, determine.
The RTE act provides for the :
 Right of children to free and compulsory education till completion of elementary
education in a neighborhood school.
 It clarifies that ‘compulsory education’ means obligation of the appropriate
government to provide free elementary education and ensure compulsory
admission, attendance and completion of elementary education to every child in the
six to fourteen age group. ‘Free’ means that no child shall be liable to pay any kind
of fee or charges or expenses which may prevent him or her from pursuing and
completing elementary education.
 It makes provisions for a non-admitted child to be admitted to an age appropriate
class.
 It specifies the duties and responsibilities of appropriate governments, local
authority and parents in providing free and compulsory education, and sharing of
financial and other responsibilities between the central and state governments.
 It lays down the norms and standards relating inter alia to Pupil Teacher Ratios
(PTRs), buildings and infrastructure, school-working days, teacher-working hours.
 It provides for rational deployment of teachers by ensuring that the specified pupil
teacher ratio is maintained for each school, rather than just as an average for the
State or District or Block, thus ensuring that there is no urban-rural imbalance in
teacher postings. It also provides for prohibition of deployment of teachers for non-
educational work, other than decennial census, elections to local authority, state
legislatures and parliament, and disaster relief.
 It provides for appointment of appropriately trained teachers, i.e. teachers with the
requisite entry and academic qualifications.

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 It prohibits (a) physical punishment and mental harassment; (b) screening

procedures for admission of children; (c) capitation fee; (d) private tuition by
teachers and (e) running of schools without recognition.
 It provides for development of curriculum in consonance with the values enshrined
in the constitution and which would ensure the all-round development of the child,
building on the child’s knowledge, potentiality and talent and making the child free
of fear, trauma and anxiety through a system of child friendly and child centered
learning.

4.1.4 Freedom as to Attendance at Religious Instruction Article 28

Freedom as to attendance at religious instruction or religious worship in certain
educational institutions :
1. No religious instruction shall be provided in any educational institution wholly
maintained out of state funds.
2. Nothing in clause (1) shall apply to an educational institution which is administered
by the state but has been established under any endowment or trust which requires
that religious instruction shall be imparted in such institution.
3. No person attending any educational institution recognised by the state or receiving
aid out of state funds shall be required to take part in any religious instruction that
may be imparted in such institution or to attend any religious worship that may be
conducted in such institution or in any premises attached thereto unless such
person or, if such person is a minor, his guardian has given his consent thereto.

4.1.5 Right of Minorities - Article 30

1. All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
1A. In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in
clause (1), the state shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not restrict or abrogate the
right guaranteed under that clause.
2. The state shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a
minority, whether based on religion or language.

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Human Rights 4-5 Human Rights in India-Constitutional Provisions / Guarantees

4.2 Fundamental Duties Article 51 A

It shall be the duty of every citizen of India
(a) To abide by the constitution and respect its ideals and institutions, the national
flag and the national anthem;
(b) To cherish and follow the noble ideals which inspired our national struggle for
freedom;
(c) To uphold and protect the sovereignty, unity and integrity of India;
(d) To defend the country and render national service when called upon to do so;
(e) To promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women;
(f) To value and preserve the rich heritage of our composite culture;
(g) To protect and improve the natural environment including forests, lakes, rivers
and wild life and to have compassion for living creatures;
(h) To develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) To safeguard public property and to abjure violence;
(j) To strive towards excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavour and achievement;
(k) Who is a parent or guardian to provide opportunities for education to his child or,
as the case may be, ward between the age of six and fourteen years.
The following are the duties in our constitution :
a) To abide by the constitution and respect its ideals and institutions, the national flag
and the national anthem- It is the duty of every citizen to respect the ideals, which
include liberty, justice, equality, fraternity and institutions namely, executive, the
legislature and the judiciary. Hence all of us are supposed to maintain the dignity of
constitution by not indulging in any activities which violate them in letter and
spirit. It also states that if a citizen by any overt or covert act shows disrespect to the
constitution, the national anthem or the national flag it would spell doom to all our
rights and very existence as citizens of a sovereign nation.
b) To cherish and follow the noble ideals which inspired our national struggle for
freedom-The citizens of India must cherish and follow the noble ideals which
inspired the national struggle for freedom. These ideals were those of building a
just society and a united nation with freedom, equality, non violence, brotherhood
and world peace. If the citizens of India remain conscious of and committed to these

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ideals, we will be able to rise above the various separatist tendencies raising their
ugly heads now and then, here and there.
c) To uphold and protect the sovereignty, unity and integrity of India- it is one of the
pre eminent national obligations of all the citizens of the India. India is a vast and
diverse nation with different caste, religion, sex and linguistic people; if freedom
and unity of the country are jeopardized then united nation is not possible. Hence
in a way sovereignty lies with the people. It may be recalled that these were first
mentioned in preamble and also under 19(2) of fundamental rights reasonable
restrictions are permitted on freedom of speech and expression in the interest of the
sovereignty and integrity of India.
d) To defend the country and render national service when called upon to do so - it is
the duty of every citizen to defend our country against external enemies. All the
citizens are bound to be conscious of any such elements entering India and also
when in need, they should be ready to take up arms to defend themselves. It is
addressed to all the citizens other than those belonging to army, navy and the air
force.
e) To promote harmony and the spirit of common brotherhood amongst all the people
of India transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women - given the vast diversities
among people, the presence of one flag and single citizenship strengthens the spirit
of brotherhood among the citizens. It states that people should rise above narrow
cultural differences and strive towards excellence in all spheres of collective
activity.
f) To value and preserve the rich heritage of our composite culture - our cultural
heritage is one of the noblest and richest, it is also part of the heritage of the earth.
Hence it is our duty to protect what we have inherited from the past, preserve it
and pass on to the future generations. India is also one of the most ancient
civilizations of the world. Our contributions towards art, science, literature is well
known to the world, also this land is birth place of Hinduism, Jainism and
Buddhism.
g) To protect and improve the natural environment including forests, lakes, rivers and
wild life and to have compassion for living creatures - these natural reserves are the
most valued assets of our country hence it is the duty of every citizen to protect it.
Rising pollution, large scale degradation of forests is causing immense harm to all
the human lives on earth. Increasing natural calamities is a proof to it. It is also

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Human Rights 4-7 Human Rights in India-Constitutional Provisions / Guarantees

reinforced in other constitutional provision under article 48A i.e. directive

principles of state policy which states that, to protect and improve the environment
and safeguard the forests and wildlife.
h) To develop the scientific temper, humanism and the spirit of inquiry and reform - It
is a known fact that it is necessary to learn from the experiences and developments
around the world for our own development. It is duty of every citizen to protect
and promote scientific temper and spirit of inquiry to keep pace with fast changing
world.
i) To safeguard public property and to abjure violence - it is unfortunate that in a
country which preaches non-violence to the rest of the world, we ourselves see from
time to time incidents of senseless violence and destruction of public property.
Among all the fundamental duties this one holds a great significance in current
scenario when strike, protest etc have become a common phenomenon. Whenever
there is a strike or bandh or rally, mob develops mentality to harm public properties
like buses, buildings and to loot them and citizens who are protectors become mute
spectators.
j) To strive towards excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavour and achievement. As
responsible citizens whatever work we take up should be directed towards
achieving the goal of excellence so that our country constantly rises to higher levels
of endeavour and achievement. This clause has potential to not only regenerate and
reconstruct the country but also to raise it to the highest possible level of excellence.
k) Who is a parent or guardian to provide opportunities for education to his child or,
as the case may be, ward between the age of six and fourteen years - it was the
recommendation of national commission to review the working of constitution, to
make education a fundamental right of all the children up to age of 14. 86th
constitutional amendment act, 2002 however provided for free and compulsory
education as a legally enforceable fundamental right for all children between 6 to 14
years of age.
Criticism of fundamental duties :
 Some of them are difficult to be understood by common people.
 Criticized for being moral precepts, pious platitudes, vague and repetitive.
 No need to be implemented as they all are performed by the people even if not
included.

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Human Rights 4-8 Human Rights in India-Constitutional Provisions / Guarantees

 Their inclusion in Part IV-A after fundamental rights has reduced their value and
significance.
 Some of the important points which were recommended by Swaran Singh
committee were not included, such as
1. Parliament should impose penalty or punishment in case of noncompliance of
duties.
2. If punishment is imposed according to above clause, it cannot be called in
question in any court on any ground.
3. Duty to pay taxes to be incorporated as fundamental duty.
 Other important duties like family planning, voting etc should be included.
Thus, finally it can be said that the government efforts cannot be successful unless
citizens of the country generally participate in the decision making process of the
government. Even the unstated duties like voting should be effectively discharged by the
citizens. Public spirited people and politicians should come forward to take interest in
local community problems. These duties are a constant reminder to us of the national
goals as well as the basic norms of political order. They may inspire us to inculcate in
ourselves a sense of social responsibility.

4.3 Directive Principles of State Policy : Articles 36-51

 Promotion of welfare of the people.
 Policy of the state.
 Compulsory education for children.
 Promotion of educational and economic of weaker section.
 State to public health.
The directive principles of the state policy are enumerated in Part IV of the
constitution from Articles 36 (actually 38) to 51. The framers of the constitution borrowed
this idea from the Irish constitution. Dr. B. R. Ambedkar described these principles as
novel features of the Indian constitution. The DPSPs along with the FRs contain the
philosophy of the Constitution and is the soul of the constitution. Granville Austin had
described the DPSPs and the FRs as the conscience of the constitution.
Features of the DPSPs
1. The phrase DPSP denotes the ideals that the state should keep in mind while
formulating policies and enacting laws. These are the constitutional
instructions/recommendations to the state in legislative, executive and
administrative matters.

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2. The DPSPs resemble the instrument of instructions enumerated in the GoI Act 1935.
3. The DPSPs constitute a very comprehensive economic, social and political
programme for a modern democratic state. They aim at realising the high ideals of
justice, liberty, equality and fraternity as outlined in the preamble to the
constitution. They embody the concept of welfare state and not that of a police state.
4. They seek to establish economic and social democracy in the country.
5. The DPSPs are non-justiciable in nature. Nevertheless, the constitution U/A 37 itself
says that these principles are fundamental in the governance of the country and it
shall be the duty of the state to apply these principles in making laws.
6. The DPSPs help the courts in examining and determining the constitutional validity
of a law. The SC has ruled many a times that in determining the constitutionality of
any law, if a court finds that the law in question seeks to give effect to a directive
principle, it may consider such law to be reasonable in relation to Articles 14 or 19
and thus save such law from unconstitutionality.
Classification of the DPSPs
The constitution doesn't contain any classification of DPSPs. However, on the basis of
their content and direction, they can be classified into 3 broad categories :
Socialistic principles - these principles reflect the ideology of socialism. They lay down
the framework of a democratic socialist state, aim at providing social and economic
justice, and set the path towards welfare state. They direct the state :
1. Article 38 : To promote welfare of the people by securing a social order permeated
by justice- social, economic and political and to minimise inequalities in income,
status, facilities and opportunities (second part about minimising inequalities was
added by 44th CAA 1978).
2. Article 39 : To secure - the right to adequate means of livelihood for all citizens; the
equitable distribution of material resources of the community for the common good;
prevention of concentration of wealth and means of production; equal pay for equal
work for men and women; preservation of the health and strength of workers and
children against forcible abuse; opportunities for healthy development of children
(this last point about children was added by 42nd CAA 1976).
3. Article 39A : To promote equal justice and to provide free legal aid to the poor
(added by 42nd CAA 1976).
4. Article 41 : To secure the right to work, to education and to public assistance in
cases of unemployment, old age, sickness and disablement.

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5. Article 42 : To make provision for just and humane conditions of work and
maternity relief.
6. Article 43 : To secure a living wage (living wage = minimum wage (food, shelter
and clothing) + education, health, insurance, etc.; a fair wage is a means between
1W and mW), a decent standard of life and social and cultural opportunities for all
workers.
7. Article 43A : To take steps to secure the participation of workers in the management
of industries (added by 42nd CAA 1976).
8. Article 47 : To raise the level of nutrition and the standard of living of people and to
improve public health.
Gandhian principles - These principles are based on Gandhian ideology. They
represent the program of reconstruction enunciated by Gandhi during the national
movement. In order to fulfil the dreams of Gandhi, some of his ideas were included as
DPSPs. They require the state to :
1. Article 40 : To organise village panchayats and endow them with necessary powers
and authority to enable them to function as units of self-government.
2. Article 43 : To promote cottage industries on an individual or cooperation basis in
rural areas.
3. Article 43B : To promote voluntary formation, autonomous functioning, democratic
control and professional management of cooperative societies (added by 97th CAA
2011).
4. Article 46 : To promote the educational and economic interests of SCs, STs and other
weaker sections of the society and to protect them from social injustice and
exploitation.
5. Article 47 : To prohibit the consumption of intoxicating drinks and drugs which are
injurious to health.
6. Article 48 : To prohibit the slaughter of cows, calves and other milch and draught
cattle and to improve their breeds.
Liberal-intellectual principles - These principles represent the ideology of liberalism.
They direct the state to :
1. Article 44 : To secure for all citizens a uniform civil code throughout the country.
2. Article 45 : To provide early childhood care and education for all children until they
complete the age of 6 years (substituted by 86th CAA 2002).

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3. Article 48 : To organise agriculture and animal husbandry on modern and scientific

lines.
4. Article 48A : To protect and improve the environment and to safeguard forests and
wild life (added by 42nd CAA 1976).
5. Article 49 : To protect monuments, places and objects of artistic or historic interest
which are declared to be of national importance.
6. Article 50 : To separate the judiciary from the executive in the public services of the
state.
7. Article 51 : To promote international peace and security and maintain just and
honourable relations between nations; to foster respect for international law and
treaty obligations and to encourage settlement of international disputes by
arbitration.
Article number What it says

Article 36 Defines state as same as Article 12 unless the context otherwise defines.

Article 37 Application of the principles contained in this part.

Article 38 It authorizes the state to secure a social order for the promotion of the welfare
of people.

Article 39 Certain principles of policies to be followed by the state.

Article 39 A Equal justice and free legal aid.

Article 40 Organization of village panchayats.

Article 41 Right to work to education and to public assistance in certain cases.

Article 42 Provision for just and humane conditions of work and maternity leaves.

Article 43 Living wage etc. for workers.

Article 43 A Participation of workers in management of industries.

Article 43 B Promotion of cooperative societies.

Article 44 Uniform civil code for the citizens.

Article 45 Provision for early childhood care and education to children below the age of
six years.

Article 46 Promotion of education and economic interests of SC, ST and other weaker
sections.

Article 47 Duty of the state to raise the level of nutrition and the standard of living and to
improve public health.

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Article 48 Organization of agriculture and animal husbandry.

Article 48 A Protection and improvement of environment and safeguarding of forests and

wildlife.

Article 49 Protection of monuments and places and objects of national importance.

Article 50 Separation of judiciary from the executive.

Article 51 Promotion of international peace and security.

4.4 Constitutional Provisions / Guarantees

 Constitution of panchayats  243B
 Powers, authority and responsibilities of panchayat  24 G eleventh schedule.
 Constitution of municipalities  243 Q
 Powers, authority and responsibilities of municipalities  243 W
Panchayat definitions, gram sabha and constitution of panchayats are defined under
Article 243, 243A and 243B of Constitution of India 1949. Provisions under these Articles
are :
Article 243 of constitution of India "Definitions"
(a) 'District' means a district in a State;
(b) 'Gram Sabha' means a body consisting of persons registered in the electoral rolls
relating to a village comprised within the area of panchayat at the village level;
(c) 'Intermediate level' means a level between the village and district levels specified
by the governor of a state by public notification to be the intermediate level for the
purposes of this part;
(d) 'Panchayat' means an institution (by whatever name called) of self-government
constituted under article 243B, for the rural areas;
(e) 'Panchayat area' means the territorial area of a panchayat;
(f) 'Population' means the population as ascertained at the last preceding census of
which the relevant figures have been published;
(g) 'Village' means a village specified by the governor by public notification to be a
village for the purposes of this part and includes a group of villages so specified.
Article 243A of constitution of India "Gram Sabha"
A Gram Sabha may exercise such powers and perform such functions at the village
level as the Legislature of a State may by law, provide.
Article 243B of constitution of India "Constitution of Panchayats"

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Human Rights 4 - 13 Human Rights in India-Constitutional Provisions / Guarantees

(1) There shall be constituted in every state, panchayats at the village, intermediate
and district levels in accordance with the provisions of this part.
(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may
not be constituted in a state having a population not exceeding twenty lakhs
Powers, authority and responsibilities of panchayats :
Subject to the provisions of this constitution, the Legislature of a state may, by law,
endow the panchayats with such powers and authority as may be necessary to enable
them to function as institutions of self-government and such law may contain provisions
for the devolution of powers and responsibilities upon panchayats at the appropriate
level, subject to such conditions as may be specified therein, with respect to.
(a) The preparation of plans for economic development and social justice;
(b) The implementation of schemes for economic development and social justice as
may be entrusted to them including those in relation to the matters listed in the
eleventh schedule.
The functions entrusted to a panchayat under the eleventh schedule to Article 243G of
the constitution are as under :
(i) Agriculture, including agricultural extension.
(ii) Land improvement, implementation of land reforms, land consolidation and soil
conservation.
(iii) Minor irrigation, water management and watershed development.
(iv) Animal husbandry, dairying and poultry.
(v) Fisheries.
(vi) Social forestry and farm forestry.
(vii) Minor forest produce.
(viii) Small scale industries, including food processing industries.
(ix) Khadi, village and cottage industries.
(x) Rural housing.
(xi) Drinking water.
(xii) Fuel and fodder.
(xiii) Roads, culverts, bridges, ferries, waterways and other means of communication.
(xiv) Rural electrification, including distribution of electricity.
(xv) Non-conventional energy sources.
(xvi) Poverty alleviation programme.
(xvii) Education, including primary and secondary schools.
(xviii) Technical training and vocational education.
(xix) Adult and non-formal education.

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(xx) Libraries.
(xxi) Cultural activities.
(xxii) Markets and fairs.
(xxiii) Health and sanitation, including hospitals, primary health centres and
dispensaries.
(xxiv) Family welfare.
(xxv) Women and child development.
(xxvi) Social welfare, including welfare of the handicapped and mentally retarded.
(xxvii) Welfare of the weaker sections, and in particular, of the scheduled castes and the
scheduled tribes.
(xxviii) Public distribution system.
(xxix) Maintenance of community assets.
Constitution of municipalities - 243 Q
The municipalities definitions, constitution of municipalities and composition of
municipalities are defined under Article 243P, 243Q and 243R of constitution of India
1949. Provisions under these articles are :
Article 243P of constitution of India "The Municipalities Definitions".
In this part, unless the context otherwise requires,-
(a) 'Committee' means a committee constituted under article 243S;
(b) 'District' means a district in a state;
(c) 'Metropolitan area' means an area having a population of ten lakhs or more,
comprised in one or more districts and consisting of two or more municipalities or
panchayats or other contiguous areas, specified by the governor by public
notification to be metropolitan area for the purposes of this part
(d) 'Municipal area' means the territorial area of a municipality as is notified by the
Governor;
(e) 'Municipality' means an institution of self-government constituted under Article
243Q ;
(f) 'Panchayat' means a panchayat constituted under Article 243B;
(g) 'Population' means the population as ascertained at the last preceding census of
which the relevant figures have been published.
Article 243Q of constitution of India "Constitution of Municipalities"
(1) There shall be constituted in every state -
(a) A Nagar panchayat (by whatever name called) for a transitional area, that is to
say, an area in transition from a rural area to an urban area.

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(b) A municipal council for a smaller urban area; and

(c) A Municipal corporation for a larger urban area, in accordance with the
provisions of this part :
Provided that a municipality under this clause may not be constituted in such urban
area or part thereof as the governor may, having regard to the size of tile area and the
municipal services being provided or proposed to be provided by an industrial
establishment in that area and such other factors as he may deem fit, by public
notification, specify to be an industrial township.
(2) In this article, 'a transitional area', 'a smaller urban area' or 'a larger urban area'
means such area as the governor may, having regard to the population of the area,
the density of the population therein, the revenue generated for local
administration, the percentage of employment in non-agricultural activities, the
economic importance or such other factors as he may deem fit, specify by public
notification for the purposes of this part.
Article 243R of Constitution of India "Composition of Municipalities".
(1) Save as provided in clause (2), all the seats in a Municipality shall be filled by
persons chosen by direct election from the territorial constituencies in the municipal
area and for this purpose each municipal area shall be divided into territorial
constituencies to be known as wards.
(2) The Legislature of a state may, by law, provide -
(a) For the representation in a municipality of -
(i) Persons having special knowledge or experience in municipal administration;
(ii) The members of the house of the People and the members of the Legislative
assembly of the state representing constituencies which comprise wholly or partly
the municipal area;
(iii) The members of the council of states and the members of the Legislative council of
the state registered electors within tile municipal area;
(iv) The chairpersons of the committees constituted under clause (5) of article 243S:
Provided that the persons referred to in paragraph (i) shall not have the right to vote in
the meetings of the municipality;
(b) The manner of election of the chairperson of a municipality.
Powers, authority and responsibilities of Municipalities – 243 W
TWELFTH SCHEDULE CONSTITUTION OF INDIA 1949
ARTICLE 243W

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Powers, authority and responsibilities of municipalities

Subject to the provisions of this constitution, the Legislature of a state may, by law,
endow;
(a) The municipalities with such powers and authority as may be necessary to enable
them to function as institutions of self-government and such law may contain
provisions for the devolution of powers and responsibilities upon municipalities,
subject to such conditions as may be specified therein, with respect to;
(i) The preparation of plans for economic development and social justice;
(ii) The performance of functions and the implementation of schemes as may be
entrusted to them including those in relation to the matters listed in the twelfth
schedule;
(b) The committees with such powers and authority as may be necessary to enable
them to carry out the responsibilities conferred upon them including those in
relation to the matters listed in the twelfth schedule.
Article 243X of constitution of India "Power to impose taxes by and funds of the
municipalities".
The Legislature of a state may, by law;
(a) Authorise a municipality to levy, collect and appropriate such taxes, duties, tolls
and fees in accordance with such procedure and subject to such limits;
(b) Assign to a municipality such taxes, duties, tolls and fees levied and collected by
the state-government for such purposes and subject to such conditions and limits;
(c) Provide for making, such grants-in-aid to the municipalities from the consolidated
fund of the state and
(d) Provide for constitution of such funds for crediting all moneys received.
respectively, by or on behalf of the municipalities and also for the withdrawal of
such moneys therefrom, as may be specified in the law.
1. Urban planning including town planning.
2. Regulation of land-use and construction of buildings.
3. Planning for economic and social development.
4. Roads and bridges.
5. Water supply for domestic, industrial and commercial purposes.
6. Public health, sanitation conservancy and solid waste management.
7. Fire services.
8. Urban forestry protection of the environment and promotion of ecological aspects.

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9. Safeguarding the interests of weaker sections of society, including the handicapped

and mentally retarded.
10. Slum improvement and upgradation.
11. Urban poverty alleviation.
12. Provision of urban amenities and facilities such as parks, gardens, play-grounds.
13. Promotion of cultural, educational and aesthetic aspects.
14. Burials and burial grounds; cremations, cremation grounds and electric
crematoriums.
15. Cattle ponds; prevention of cruelty to animals.
16. Vital statistics including registration of births and deaths.
17. Public amenities including street lighting, parking lots, bus stops and public
conveniences.
18. Regulation of slaughter houses and tanneries.

Two Marks Questions with Answers

PART A

Q.1 Fundamental rights.

Ans. :
 Derogation of the fundamental rights.
 Prohibition of discrimination.
 Right to education.
 Freedom as to attendance at religious instruction.
Q.2 Define prohibition of discrimination - Article 15.
Ans. :
1. The state shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction.
Q.3 Define freedom as to attendance at religious instruction Article 28.
Ans. : Freedom as to attendance at religious instruction or religious worship in certain
educational institutions.
1. No religious instruction shall be provided in any educational institution wholly
maintained out of state funds.

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2. Nothing in clause (1) shall apply to an educational institution which is administered

by the state but has been established under any endowment or trust which requires
that religious instruction shall be imparted in such institution.
Q.4 Explain right of minorities - Article 30.
Ans. :
1. All minorities, whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice.
1A. In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in
clause (1), the state shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not restrict or abrogate the
right guaranteed under that clause.
Q.5 List features of the DPSPs.
Ans. :
1. The phrase DPSP denotes the ideals that the state should keep in mind while
formulating policies and enacting laws. These are the constitutional instructions/
recommendations to the state in legislative, executive and administrative matters.
2. The DPSPs resemble the instrument of instructions enumerated in the GoI Act 1935.
Q.6 List classification of the DPSPs.
Ans. : Article 38 :
Article 39 :
Article 39A :
Article 41 :
Article 42 :
Q.7 Rural and urban local bodies.
Ans. :
 Constitution of panchayats  243B.
 Powers, authority and responsibilities of panchayat – 24G eleventh schedule.
 Constitution of municipalities – 243 Q.
 Powers, authority and responsibilities of municipalities – 243 W
Q.8 List functions entrusted to a panchayat under the eleventh schedule to Article 243G.
Ans. :
(i) Agriculture, including agricultural extension.

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(ii) Land improvement, implementation of land reforms, land consolidation and soil
conservation.
(iii) Minor irrigation, water management and watershed development.
(iv) Animal husbandry, dairying and poultry.
(v) Fisheries.
Q.9 Article 243A of constitution of India "Gram Sabha".
Ans. : A Gram Sabha may exercise such powers and perform such functions at the village
level as the Legislature of a state may by law, provide.
Q.10 Article 243B of constitution of India "Constitution of Panchayats".
Ans. : There shall be constituted in every state, panchayats at the village, intermediate and
district levels in accordance with the provisions of this part.

Review Questions
PART B

1. Explain human rights in India. (Refer section 4.1)

2. Explain constitutional provisions / guarantees. (Refer section 4.4)



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Notes

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 UNIT-V

Children and Human

5 Rights and Duties
Syllabus
Human Rights of Disadvantaged People – Women, Children, Displaced persons and Disabled
persons, including Aged and HIV Infected People. Implementation of Human Rights – National
and State Human Rights Commission – Judiciary – Role of NGO‘s, Media, Educational
Institutions, Social Movements.

Contents
5.1 Human Rights of Disadvantaged People

5.2 Women, Children, Displaced Persons and Disabled Persons

5.3 Implementation of Human Rights

5.4 National and State Human Rights Commission

5.5 Judiciary

5.6 Role of NGO‘s, Media, Educational Institutions, Social Movements

Two Marks Questions with Answers

Review Questions

(5 - 1)
 Human Rights 5-2 Children and Human Rights and Duties

5.1 Human Rights of Disadvantaged People

The aim of human rights instruments is the protection of those vulnerable to violations
of their fundamental human rights. There are particular groups who, for various reasons,
are weak and vulnerable or have traditionally been victims of violations and
consequently require special protection for the equal and effective enjoyment of their
human rights. Often human rights instruments set out additional guarantees for persons
belonging to these groups; the committee on economic, social and cultural rights, for
example, has repeatedly stressed that the ICESCR is a vehicle for the protection of
vulnerable groups within society, requiring states to extend special protective measures
to them and ensure some degree of priority consideration, even in the face of severe
resource constraints.
This part focuses on groups that are especially vulnerable to abuse of human rights;
groups that are structurally discriminated against like women and groups that have
difficulties defending themselves and are therefore in need of special protection.
 Twelve groups are discussed : 1) Women and girls; 2) Children; 3) Refugees;
4) Internally displaced persons; 5) Stateless persons; 6) National minorities;
7) Indigenous peoples 8) Migrant workers; 9) Disabled persons; 10) Elderly persons;
11) HIV positive persons and AIDS victims; 12) Roma/Gypsies/Sinti and 13) Lesbian,
gay and transgender people. Clearly this is not an exhaustive list of persons in need
of particular protection, as many other groups not discussed in this part suffer from
discrimination and oppression.
 Social protection systems using a rights-based framework should mainstream
inclusion in their design, implementation and evaluation to ensure that they are
accessible by all those who suffer from structural discrimination (such as women,
children, older persons, persons with disabilities, ethnic minorities, indigenous
peoples and people living with HIV/AIDS) and do not stigmatize beneficiaries.
 Due to various factors-geographic location, sex, age, ability and citizenship; for
instance-some groups find themselves facing distinct disadvantages. These
conditions may be lifelong, such as one’s ethnicity or they may change throughout
the life cycle, such as age. Policy makers must ensure, therefore, that measures are
put in place to overcome these obstacles.
 When designing social protection systems and programmes, it is imperative that
policy makers make it a priority to address the power imbalance that exists between
vulnerable people and the general population to ensure that they are included.

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 Human Rights 5-3 Children and Human Rights and Duties

 The committee on economic, social and cultural rights notes that States parties to the
ICESCR are obliged to progressively ensure the right to social security to all
individuals within their territories, providing specific protection for disadvantaged
and marginalised individuals and groups

5.2 Women, Children, Displaced Persons and Disabled Persons

People with disabilities have been found to ‘form one of the most socially excluded
groups in any displaced or conflict-affected community’ (Pearce et al, 2016 : 119). They
may have difficulty accessing humanitarian assistance programmes, due to a variety of
societal, attitudinal, environmental and communication barriers, and are at greater risk of
violence than their nondisabled peers (Pearce, 2014 : 4). Women and girls with disabilities
are ‘particularly vulnerable to discrimination, exploitation and violence, including
Gender-Based Violence (GBV), but they may have difficulty accessing support and
services that could reduce their risk and vulnerability’ (Pearce, 2014 : 4). This rapid
review looks at the available evidence on the risks and vulnerabilities faces by women
and girls with disabilities in conflict and crises and interventions to support them. Most of
the literature uncovered by this rapid review was grey literature published by
organizations working with refugees, rather than peer reviewed articles. The bulk of the
evidence was based on work carried out by Women’s Refugee Commission (WRC) and
their partners.
Findings about the risks and vulnerabilities faced by women and girls in conflict and
crises include :
 Double discrimination as a result of their gender and disability increases women
and girls with disabilities’ vulnerability, and conflict and crises exacerbate this.
 The breakdown of economic structures, health care, family and community support,
educational opportunities, housing, transportation and other infrastructures as a
result of conflict increases the vulnerability of women and girls with disabilities.
They may find it harder to flee or be left behind, making them more vulnerable to
attack.
 The loss of assistive devices, caregivers, and protection networks as a result of
displacement make women and girls with disabilities more dependent on others
and at greater risk of exploitation. Women and girls with disabilities in refugee
camps and host communities may experience stigmatization and discrimination,
barriers to participation, unsafe shelters and lack of access to services.

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Human Rights 5-4 Children and Human Rights and Duties

 Conflict and crisis affected women and girls with disabilities face increased levels of
sexual and gender based violence in and out of the home, especially those with
intellectual and mental disabilities. This is a result of factors such as stigma and
discrimination, being seen as ‘easy’ targets, extreme poverty, social exclusion and
isolation, loss of protective mechanisms, and limited mobility. Women and girls
with disabilities are also largely excluded from gender based violence prevention
programmes, including the variety of women’s empowerment initiatives aiming to
break the cycle of vulnerability to violence.
 Women and girls with disabilities do not have adequate access to water, shelter,
food or health - including menstrual hygiene and reproductive health, in
humanitarian contexts. Many also do not have access to the specific services they
may need such as rehabilitation. Barriers to access aid include cultural, attitudinal,
communication, environmental and physical barriers, and lack of training for
humanitarian staff.
 Conflict and crises can result in the loss of the livelihoods of women with
disabilities, which increases their poverty and makes them vulnerable to
exploitation.
 Factors contributing to lack of inclusion of women and girls with disabilities in
humanitarian response include :
 Gaps in policy development and implementation; negative attitudes of family
members and communities; limited staff knowledge, attitudes, and practices; and
lack of champions and local partners. Interventions to support women and girls in
conflict and crises have found that it is important to :
 Have organizational commitment to translate policies that integrate both disability
and gender mainstreaming into practice.
 Support staff to identify skills and capacities when working with women and girls
with disabilities rather than just focusing on their risks and vulnerabilities.
 Carry out activities which strengthen protective peer networks.
 Set targets for inclusion in existing programmes, including economic strengthening
programmes.
 Advocate for representation of women and girls with disabilities in community
committees and support advocacy by groups representing women and girls with
disabilities.
 Recruit women with disabilities as volunteers and staff.
 Partner with and support, women’s disabled people’s organizations.

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 Human Rights 5-5 Children and Human Rights and Duties

5.2.1 Including Aged and HIV Infected People

Who are internally displaced persons ? According to the guiding principles on internal
displacement, internally displaced persons (also known as "IDPs") are "persons or groups
of persons who have been forced or obliged to flee or to leave their homes or places of
habitual residence, in particular as or natural or human-made disasters and who have not
crossed an internationally recognize result of or in order to avoid the effects of armed
conflict, situations of generalized violence, violations of human rights border. “What
challenges do internally displaced persons face ? People forced to flee or leave their
homes - particularly in situations of armed conflict - are generally subject to heightened
vulnerability in a number of areas. Displaced persons suffer significantly higher rates of
mortality than the general population. What rights do internally displaced persons have ?
Like all human beings, internally displaced persons enjoy human rights that are
articulated by international human rights instruments and customary law. In situations of
armed conflict, moreover, they enjoy the same rights as other civilians to the various
protections provided by international humanitarian law. The guiding principles on
internal displacement, created in 1998, restate and compile existing international human
rights and humanitarian law germane to the internally displaced and also attempt to
clarify grey areas and gaps in the various instruments with regard to situations of
particular interest to the internally displaced. The guiding principles note that arbitrary
displacement in the first instance is prohibited (Principles 5 - 7). Once persons have been
displaced, they retain a broad range of economic, social, cultural, civil and political rights,
including the right to basic humanitarian assistance (such as food, medicine, shelter), the
right to be protected from physical violence, the right to education, freedom of movement
and residence, political rights such as the right to participate in public affairs and the
right to participate in economic activities (Principles 10 - 23). Displaced persons also have
the right to assistance from competent authorities in voluntary, dignified and safe return,
resettlement or local integration, including help in recovering lost property and
possessions. When restitution is not possible, the guiding principles call for compensation
or just reparation (Principles 28 - 30). Whose responsibility is it to protect and assist
internally displaced persons ? As a crucial element of sovereignty, it is the Governments
of the states where internally displaced persons are found that have the primary
responsibility for their assistance and protection. The international community's role is
complementary. At the international level, no single agency or organization has been
designated as the global lead on protection and assistance of internally displaced persons.
Rather, all are called upon to cooperate with each other to help address these needs
pursuant to the "collaborative approach".

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5.3 Implementation of Human Rights

Human rights treaties are legally binding treaties. The parties to the treaties (“state
parties”) are responsible for their implementation and under an obligation to do so. Thus,
the state and its agencies are called “duty bearers”.
To implement human rights treaties domestically, duty bearers have to :
 Adapt existing laws or pass new laws;
 Change or adapt administrative or financial measures;
 Issue national action plans and similar programmes;
 Guarantee and facilitate access to legal protection if someone feels violated in his or
her human rights;
 Regularly review and evaluate the results of these measures.
Next to domestic courts, civil society organisations play an important role in the
implementation of human rights, and so do National Human Rights Institutions (NHRI)
and the media. They can inform about human rights, demand the ratification of human
rights treaties, document violations of human rights as well as monitor, call for and
support the implementation of human rights obligations.
Two recent human rights treaties even oblige states to establish national monitoring
mechanisms : The optional protocol to the UN-convention against torture and the
Convention on the Rights of Persons with Disabilities (CRPD). In Germany, the National
agency for the prevention of torture was founded in 2008 and the CRPD national
monitoring body was established in May 2009 at the German institute for human rights.

5.4 National and State Human Rights Commission

 NHRC of India is an independent statutory body established on 12 October, 1993 as
per provisions of protection of human rights act, 1993, later amended in 2006.
 NHRC has celebrated its Silver Jubilee (25 years) on October 12, 2018. Its
headquarter is located in New Delhi.
 It is the watchdog of human rights in the country, i.e. the rights related to life,
liberty, equality and dignity of the individual guaranteed by Indian Constitution or
embodied in the international covenants and enforceable by courts in India.
 It was established in conformity with the Paris principles, adopted for the
promotion and protection of human rights in Paris (October, 1991) and endorsed by
the general assembly of the united nations on 20 December, 1993.

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 Human Rights 5-7 Children and Human Rights and Duties

Structure of the commission

 NHRC is a multi-member body which consists of a chairman and seven other
members. Out of the seven members, three are ex-officio member.
 President appoints the chairman and members of NHRC on recommendation of
high-powered committee headed by Prime Minister.
 The chairperson and the members of the NHRC are appointed for 5 years or till the
age of 70 years, whichever is earlier.
 They can be removed only on the charges of proved misbehavior or incapacity, if
proved by an inquiry conducted by a supreme court judge.
 Commission also has five specialized divisions i.e. law division, investigation
division, policy research and programmes division, training division and
administration division.
 The chairman and the members of state commission are appointed by the governor
in consultation with the chief minister, home minister, speaker of legislative
assembly and leader of the opposition in the state legislative assembly.

Functions and powers of NHRC

 NHRC investigates grievances regarding the violation of human rights either suo
moto or after receiving a petition.
 It has the power to interfere in any judicial proceedings involving any allegation of
violation of human rights.
 It can visit any jail or any other institution under the control of the state government
to see the living conditions of the inmates and to make recommendations thereon.
 It can review the safeguards provided under the constitution or any law for the
protection of the human rights and can recommend appropriate remedial measures.
 NHRC undertakes and promotes research in the field of human rights.
 NHRC works to spread human rights literacy among various sections of society and
promotes awareness of the safeguards available for the protection of these rights
through publications, media, seminars and other means.
 The commission takes an independent stand while providing opinions for the
protection of human rights within the parlance of the Constitution or in law for the
time being enforced.
 It has the powers of a civil court and can grant interim relief.
 It also has the authority to recommend payment of compensation or damages.

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 Human Rights 5-8 Children and Human Rights and Duties

 NHRC credibility is duly reflected in large number of complaints received every

year and the trust reposed in it by the citizens.
 It can recommend to both the central and state governments to take suitable steps to
prevent the violation of human rights. It submits its annual report to the president
of India who causes it to be laid before each house of parliament.

Limitations of NHRC
 NHRC does not have any mechanism of investigation. In majority cases, it asks the
concerned central and state governments to investigate the cases of the violation of
human rights.
 It has been termed as ‘India’s teasing illusion’ by Soli Sorabjee (former Attorney-
General of India) due to its incapacity to render any practical relief to the aggrieved
party.
 NHRC can only make recommendations, without the power to enforce decisions.
 Many times NHRC is viewed as post-retirement destinations for judges and
bureaucrats with political affiliation moreover, inadequacy of funds also hamper its
working.
 A large number of grievances go unaddressed because NHRC cannot investigate the
complaint registered after one year of incident.
 Government often out rightly rejects recommendation of NHRC or there is partial
compliance to these recommendations.

State human rights commission

The protection of human rights act of 1993 provides for the creation of state human
rights commission at the state level. A state human rights commission can inquire into
violation of human rights related to subjects covered under state list and concurrent list in
the seventh schedule of the Indian constitution.
Composition :
Human rights (Amendment) act, 2006 consists of three members including a
chairperson. The chairperson should be a retired chief justice of a high court.
The other members should be :
(i) A serving or retired judge of a high court or a district judge in the state with a
minimum of seven years experience as district judge.
(ii) A person having practical experience or knowledge related to human rights.

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 Human Rights 5-9 Children and Human Rights and Duties

(iii) The governor of the state appoints the chairperson and other members on the
recommendations of a committee consisting of the chief minister as its head, the
speaker of the legislative assembly, the state home minister and the leader of the
opposition in the legislative assembly. The chairman and the leader of the
opposition of legislative council would also be the members of the committee, in
case the state has legislative council.
(iv) The tenure of the chairperson and members is five years or until they attain the
age of 70 years, whichever is earlier. After the completion of their tenure, they are
not eligible for any further employment under the state government or the central
government. However, chairman or a member is eligible for another term in the
commission subject to the age limit.

Functions of the commission :

According to the protection of human rights act, 1993; below are the functions of state
human rights commission :
(a) Inquire suo motu or on a petition presented to it, by a victim or any person on his
be into complaint of violation of human rights or negligence in the prevention of
such violation by a public servant.
(b) Intervene in any proceeding involving any allegation of violation of human rights
before a court with the approval of such court.
(c) Visit any jail or any other institution under the control of the state government
where persons are detained to study the living conditions of the inmates and
make recommendations thereon.
(d) Review the safeguards provided by or under the constitution of any law for the
time being in force for the protection of human rights and recommend measures
for their effective implementation.
(e) Review the factors, including acts of terrorism that inhibit the enjoyment of
human rights and recommend appropriate remedial measures.
(f) Undertake and promote research in the field of human rights.
(g) Spread human rights literacy among various sections of society and promote
awareness of the safeguards available for the protection of these rights.
(h) Encourage the efforts of non-governmental organizations and institutions
working in the field of human rights.
(j) Undertake such other functions as it may consider necessary for the promotion of
human rights.

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Working of the commission

 The commission is vested with the power to regulate its own procedure.
 It has all the powers of a civil court and its proceedings have a judicial character.
 It may call for information or report from the state government or any other
authority subordinate thereto.
It has the power to require any person subject to any privilege which may be claimed
under any law for the time being in force, to furnish information on points or matters
useful for or relevant to the subject matter of inquiry. The commission can look into a
matter within one year of its occurrence.

Criticism :
State human rights commission has limited powers and its functions are just advisory
in nature. The commission does not have power to punish the violators of human rights.
It cannot even award any relief including monetary relief to the victim.
The recommendations of state human rights commission are not binding on the state
government or authority, but it should be informed about the action taken on its
recommendation within one month.

5.5 Judiciary
The judiciary (also known as the judicial system, judicature, judicial branch,
judiciative branch, court or judiciary system) is the system of courts that interprets and
applies law in legal cases. The judiciary is the system of courts that interprets and applies
the law in the name of the state. The judiciary can also be thought of as the mechanism for
the resolution of disputes. Under the doctrine of the separation of powers, the judiciary
generally does not make statutory law (which is the responsibility of the legislature) or
enforce law (which is the responsibility of the executive), but rather interprets law and
applies it to the facts of each case. However, in some countries the judiciary does make
common law.
In many jurisdictions the judicial branch has the power to change laws through the
process of judicial review. Courts with judicial review power may annul the laws and
rules of the state when it finds them incompatible with a higher norm, such as primary
legislation, the provisions of the constitution, treaties or international law. Judges
constitute a critical force for interpretation and implementation of a constitution, thus in
common law countries creating the body of constitutional law.

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5.6 Role of NGO‘s, Media, Educational Institutions, Social Movements

Human rights are the basic inherent rights which we enjoy as human beings. They
become operative right from birth. All human beings irrespective of their caste, creed,
religion, sex and nationality enjoy these rights. As discussed earlier, human rights are
referred to as fundamental rights, basic rights, inherent rights, natural rights and birth
rights. There are a number of non-governmental organizations, which works to protect
human rights and end human rights violations. The topic of - human rights encompasses
a wide range of issues, including freedom of expression, right to due process, gender
equality and freedom from poverty and violence. Many organizations around the world
dedicate their efforts to protecting human rights and ending human rights abuses. Major
human rights organizations maintain extensive websites documenting violations and
calling for remedial action, both at a governmental and grass-roots level. Public support
and condemnation of abuses is important to their success, as human rights organizations
are most effective when their calls for reform are backed by strong public advocacy.
Media and educational systems are also important in making the people more vigilant
and sensitive towards human right protection by spreading awareness.

5.6.1 Promotion and Protection of Human Rights

Role of NGOs non-governmental organisations are playing a very important role in
creating such awareness and a culture of human rights in society. NGOs can also play an
important role in exposing the public view, violation of Human Rights in the states to the
public. Almost all the states fear adverse publicity and consequently try to avoid their
human rights violations being brought to the limelight by the NGOs. Many international
institutions permit NGOs to make appeals to them on behalf of the victims of human
rights abuses where the victims are incapable of doing that. The economic and social
council of the UN is competent to confer consultative status to NGOs under art 71 of the
UN Charter. Many NGOs engaged in human rights-related activities enjoy such
consultative status. The history of human rights NGOs is rather long dating back to 1863
when the International council of red cross was established. Since then, there has been a
proliferation of NGOs concerned with human rights. The most prominent among them
are the International Jurists, Amnesty International (Art 19), antislavery society and the
world council of churches. There are also regional branches of International NGOs and
NGOs established at the regional or State level are also actively engaged in the promotion
and protection of human rights. A Non-Governmental Organization (NGO) is a non-
profit group or association that acts outside of institutionalized political structures and
pursues, matters of interest to its members by lobbying, persuasion or direct action. The

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term is generally restricted to social, cultural, legal and environmental advocacy groups
having goals that are primarily noncommercial. NGO‘s may gain some portion of their
funding from private sources. Because the label - NGO is considered too broad by some
as it might cover anything that is non-governmental, many NGO‘s now prefer the term
Private Voluntary Organization (PVO) or Private Development Organization (PDO).
NGO‘s work to stop violation of covenant rights in many ways and places. The term Non-
Governmental Organization (NGO‘s) includes community based organization, citizen‘s
groups, non-political entities, trade unions, religious and social justice organisations and
other voluntary organisations that may help to foster and enforce economic social and
cultural rights. A 1995 UN report on global government estimated that there are more
than 29,000 international NGO‘s. National numbers are even higher. India has more than
2 million NGO‘s which are working in different fields and areas for the various causes
including socio-economic justice. International red cross and red crescent movement is
the world‘s largest group of humanitarian NGO‘s. Though voluntary associations of
citizens have existed throughout history, NGO‘s along the lines seen today specially on
the International level, have developed in the past two centuries. One of the first such
organisations, the international committee of the red cross, was founded in 1863. The
phrase - non-governmental organization came into use with the establishment of the
united nations organization in 1945 with provision in Article 31 of chapter 10 of the
united nations charter. The definition of - international NGO‘s (INGO) is first given in
resolution 27, 1950; it is defined as -any international organization that is not founded by
an international treaty.
Highlighting public health issues : The role of NGO‘s cannot be underrated for it is
only through them many problems have been highlighted and brought to the notice of
national and international organisations. It is only because of NGO‘s that the
governments had to look into the matter and bow to public opinion. The human rights to
healthy and safe environment was first recognized in the un universal declaration of
human rights in 1948. While human rights law and active judiciary can assist in the
achievement of such protection there is far greater need for the active participation of
NGO‘s to achieve meaningful standards. The help of NGO‘s in this regard becomes
necessary since NGO‘s include non profit associations, foundations, groups and
volunteers NGO‘s play an important role in the education of the citizen, a role which the
authors of the Universal declaration considered of prime importance. Right to safe
environment, right to health, the right to physical well-being and right to a normal life are
related to the public health. NGO‘s are playing vital role in abolishing the drawbacks.

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Related to public health by giving timely guidance to the individuals through various
modes. NGO‘s are the tools by which human rights can be made known and respected.

Two Marks Questions with Answers

PART A

Q.1 List any 4 functions of NHRC.

Ans. :
 NHRC investigates grievances regarding the violation of human rights either suo
moto or after receiving a petition.
 It has the power to interfere in any judicial proceedings involving any allegation of
violation of human rights.
Q.2 Explain Article 19.
Ans. : ARTICLE 19 works for a world where all people everywhere can freely express
themselves and actively engage in public life without fear of discrimination.
Q.3 List the limitations of national human rights commission.
Ans. : NHRC does not have any mechanism of investigation. In majority cases, it asks the
concerned central and state governments to investigate the cases of the violation of human
rights
Q.4 Write about child welfare.
Ans. : In India, there are various development programs being run for the people. Amongst
them, the child welfare programs have been at the center most
Q.5 List the twelve groups of human rights of disadvantaged people.
Ans. : 1) Women and girls; 2) Children; 3) Refugees; 4) Internally displaced persons;
5) Stateless persons; 6) National minorities; 7) Indigenous peoples 8) Migrant workers;
9) Disabled persons; 10) Elderly persons; 11) HIV positive persons and AIDS victims;
12) Roma/Gypsies/Sinti;
Q.6 What are the risks and vulnerabilities faced by women and girls in conflict ?
Ans. : Women and girls with disabilities are ‘particularly vulnerable to discrimination,
exploitation and violence, including Gender-Based Violence (GBV), but they may have
difficulty accessing support and services that could reduce their risk and vulnerability’.
Q.7 List the human rights treaties.
Ans. :
 Adapt existing laws or pass new laws;
 Change or adapt administrative or financial measures;
 Issue national action plans and similar programmes.

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Q.8 Explain NHRC.

Ans. : NHRC of India is an independent statutory body established on 12 October, 1993 as
per provisions of protection of human rights act, 1993, later amended in 2006.
Q.9 Explain state human rights commission
Ans. : The protection of human rights act of 1993 provides for the creation of state human
rights commission at the state level. A state human rights commission can inquire into
violation of human rights related to subjects covered under state list and concurrent list in
the seventh schedule of the Indian constitution.
Q.10 Powers of NHRC.
Ans. :
 It also has the authority to recommend payment of compensation or damages.
 NHRC credibility is duly reflected in large number of complaints received every year
and the trust reposed in it by the citizens.
Q.11 Define Judiciary.
Ans. : The judiciary (also known as the judicial system, judicature, judicial branch,
judicative branch, court or judiciary system) is the system of courts that interprets and
applies law in legal cases.
Q.12 Role of NGO‘s
Ans. : A Non-Governmental Organization (NGO) is a non-profit group or association that
acts outside of institutionalized political structures and pursues, matters of interest to its
members by lobbying, persuasion or direct action.
Q.13 Role of Media.
Ans. : Media and educational systems are also important in making the people more
vigilant and sensitive towards human right protection by spreading awareness.
Q.14 Functions of the commission SHRC.
Ans. :
 Review the safeguards provided by or under the constitution of any law for the time
being in force for the protection of human rights and recommend measures for their
effective implementation.
 Review the factors, including acts of terrorism that inhibit the enjoyment of human
rights and recommend appropriate remedial measures.
 Undertake and promote research in the field of human rights.
 Spread human rights literacy among various sections of society and promote
awareness of the safeguards available for the protection of these rights.

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Q.15 What are promotion and protection of human rights ?

Ans. : NGOs can also play an important role in exposing the public view, violation of
human rights in the states to the public. Almost all the states fear adverse publicity and
consequently try to avoid their human rights violations being brought to the limelight by
the NGOs.

Review Questions
PART B

1. Explain about human rights of disadvantaged people. (Refer section 5.1)

2. Explain women, children, displaced persons and disabled persons, including aged and HIV
infected people. (Refer section 5.2)
3. Classify the implementation of human rights. (Refer section 5.3)
4. Summarize national and state human rights commission. (Refer section 5.4)
5. Discuss about role of NGO‘s, media, educational institutions, social movements.
(Refer section 5.6)

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Notes

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