NOTESON

HUMANRIGHTS
LAW

BINDIYAC.K
LecturerinLaw
[Link],Kozhikode
 CONTENTS
[Link]
[Link] OF HUMAN RIGHTS
[Link] & SOURCES OF HUMAN RIGHTS
[Link] RIGHTS IMPLEMENTATIONS
a) INTERNATIONAL LEVEL
b) IN INDIA
[Link] HUMAN RIGHTS ISSUES
1)WOMEN
2)CHILD
3)REFUGEES
4)TRIBALS & SCST’S
5)MINORITIES
6)PRISONERS
7)WORKERS
8)STATELESS PERSONS
 1
INTRODUCTION
Human rights are those inalienable fundamental rights to which a person
is inherently entitled simply because he or she is a human being. Section 2
(d) of the Protection of Human Rights Act 1993 defines human rights as those
rights relating to life, liberty, equality and dignity of the individual
guaranteed by the constitution or embodied in International Covenants and
enforceable by court in India.
AN ANALYSIS OF ABOVE DEFENITIONS BRINGS OUT THE NATURE OF
HUMAN RIGHTS
1)Human rights are inalienable (means which cannot be separated) from
human beings. A person gets his human rights by birth itself. These are
his NATURAL RIGHTS and not gifts, awards, alms from anybody else.
Human rights cannot be created, transferred, surrendered or destroyed.
2)Human rights are basic rights without which a human being cannot lead
a normal existence. In the absence of human rights; a human being can
never reach his fullest potential in life. His condition would lower down
to animal or best level. His talents and capabilities would be stunted.
3)Human rights are universal. These rights and freedom belong to every
human being in the world irrespective of nationality, colour, religion,
cast, sex, place of residence, etc.
4)Human rights are inter-dependent and inter related. The improvement
of one human right lead to improvement of the other human rights. The
destruction or reduction of one human rights lead to destruction or
reduction of the other human rights. Egs: - Right to reasonable wages is
related right to work and Right to form trade unions Right to dignity is
related to Right to privacy and Right against torture. Right to freedom of
movement is related to right against arbitrary arrest and detention.
 Right to life is related to right to live in a healthy, pollution free
environment.
5)It is the prime duty of the state to guarantee and enforce human rights.
In other words; state should not be a giver of human right. It should be a
guarantor and guardian of human rights. Even though human rights are
natural rights most of the countries in the world have incorporated
these rights under both and international laws. Thus human rights have
also acquired the status of LEGAL RIGHTS in most countries. Human
rights cannot be suspended or taken away except by due process of law.

2
CLASSIFICATION OF HUMAN RIGHTS
According to Karel Vasak a Czeck jurist human rights can be classified in to
three generations:
First generation human rights (Blue rights)
These are strongly individual rights Civil and political rights like freedom of
speech and expression, freedom of movement, freedom of religion right to
free and fair trial, right to vote, right to self determination, etc. These rights
gave importance to liberty of individual.
Second generation human rights (Red Rights)
These rights were recognised after World war 2nd and gave importance to
equality of individuals. Economic, social and cultural rights like: Right of
employment, Right of housing, Right to health care, Right to free education,
Right to social security, etc. These rights aim at equal treatment of citizens
equal conditions
Third generation human rights (Green Rights)
These rights are collective in nature. Groups rights like right to natural
resources, right to healthy environment, right to economic and social
development, right to communication, rights of tribal, rights of minorities,
right to participate in cultural heritage, etc. Right to intergenerational
equality is also a collective right. Intergenerational equality means equal
justice for all generations including future generations. For example the
present generation should not use natural resources and energy resources
indiscriminately. They should also save these resources for future
generations. Another example if the government provides several benefits to
the present generation by taking huge loans and liabilities it will result in
great financial burden and risk on future generations. This will lead to
intergenerational inequalities Third generation rights give importance of
fraternity of individuals.
The term intergenerational equality was coined by James Tobin.
First and second generation human rights have been incorporated in the
UDHR (Universal Declaration of Human Rights 1948) in Articles 3 – 21 and
Article 22 – 27 respectively. Second generation human rights are also
incorporated in I C E S C R (International Covenants on Economic, Social and
Cultural Rights, 1966).
Third generation human rights have not yet been officially recognised
properly. But, these rights are implied in various international covenants
especially those related to environmental protection Eg: - Stockholm
Declaration, Rio Declaration. Countries like Finland, Hungary, New Zealand
and Israel have incorporated third generation human rights in their
constitutions to certain extend. International Organisations like the
Organisation for security and co-operation in Europe and the Directorate
general for Environment of the European Commission have also taken
measures in this regard.
Implementation and enforcement of second and third generation rights
is more difficult than that of first generation rights. This is due to the reason
that implementation of second and third generation rights depends on
availability of resources with the government. A person cannot claim rights
of housing or right of free education if the government does not have enough
funds or resources. There are no effective mechanisms for implementing
third generation rights or to punish the violation of these rights.
Maurice Cranston was opinion that second and third generation
human rights are not really human rights at all. Because of every right has a
corresponding duty. But in second and third generation rights the
government cannot be compelled to do its duty if it does not have enough
resources. Dr. Charles Keblar* held that second and third generation rights
are not human rights but only political ideals and goals.
Human rights can also be classified in to POSITIVE and NEGTIVE
human rights. Positive human right is a right to get particular treatment from
the government Eg: - right to food, education, housing, employment, health
 care road, and electricity facilities right to national security and social
security etc. second and third generation human rights are positive in nature.
Negative human right is a right not to get a particular treatment or not to get
interfered with Egs: - freedom of speech and expression, freedom of
movement freedom of religion and worship, freedom from slavery, right to
fair trial, right against arbitrary arrest, right to privacy, right to marry, right
against torture and crimes. First generation human rights are negative in
character.
Negative rights are also known as classic human rights. Positive rights
are also known as social rights.
3
ORIGIN & SOURCES OF HUMAN RIGHTS LAW
The evolution of human rights can be traced back to the evolution of
mankind itself as a part of Natural law and Divine law. However, human rights
jurisprudence was officially recognised in the 20th century particularly after
the mass killings of Jews, gypsies homosexual and disabled persons by the
Nazis during World war 2nd. These genocides (manslaughter) were treated as
crimes against humanity which shocked the world. The perpetrators of these
crimes were punished in the Nuremburg and Tokyo trials. It also led to the
formation of the UNO (United Nations Organisation).
Human rights jurisprudence is based on the golden rule: “Do not do anything
on others which you do not like to be done on you”. The following are the
known sources of human rights law
1) Hindu Vedas, Bible, Quran, Hammurabi’s Code, Sayings of Confucius-
These are the oldest sources of human rights law which lay down the
rights, duties and responsibility of citizen and the state.
2) Inca and Aztec writings: - which laid down codes of conduct in ancient
America
3) Natural and divine law of the Greeks and Romans: - Natural law also
called moral law universal justice, fair play action or fundamental justice it
was propagated by Herodotus, Socrates, Plato, Aristotle, Stoic and other
philosophers. Divine law which was propagated by the church from Ist
century to 15th century interpreted natural law through priest Divine law
had a theological basis.
 4) Cyrus cylinder of Mesopotamian civilisation: - the writings on this
cylinder says about the greatness of king Cyrus who used to grant religious
freedom to his subjects, abolished slavery and granted freedom to
minorities and deported persons.
5) Magna Carta of Great Britain (1215): - Passed by King John of England is
also known as the great charter of liberties.
6) English Bill of Rights (1689)
7) French declaration on the rights of Man and citizen (1789)
8) US constitution and Bill of Rights
9) Universal Declaration of Human rights UDHR (1948)
10) International Covenant on Civil and Political rights 1966
11) International Covenant on Economic, Social and Cultural Rights 1966
ICCPR.
12) Optional Protocol to ICCPR
13) Second Optional Protocol to ICCPR for abolish of Death penalty.
14) There are also numerous conventions and treaties related human
rights which are part of International Law: -
▶ Convention on Prevention and Punishment of Genocide, 1948
▶ Convention on Elimination of All forms of Discrimination against
women 1981 (CEDAW
▶ Convention on Elimination of all forms of Racial Discrimination,
1966
▶ Convention on Suppression and Punishment of Apartheid, 1973
▶ Convention on Status of refugees,1951
▶ Convention on Suppression of Traffic in Persons and Exploitation,
1949
▶ Convention against Torture and other cruel, inhuman or
degrading treatment or punishment, 1984
▶ Convention relating to Status of Stateless Persons 1954
▶ Convention against taking of Hostages 1979
▶ Slavery Convention, 1926
▶ Geneva convention on treatment of prisoners
▶ Geneva Protocol on Prevention of war 1949
▶ Geneva Protocol on Prevention of Bio warfare, 1929
There are also domestic laws passed by many countries which are
being implemented within their jurisdictions European, American and African
states have created their own charter of human rights Muslim states have
created Cairo Declaration on Human Rights in Islam (1990). In America,
President Abraham Lincoln abolished slavery through the Emancipation
Proclamation 1863. In India laws like Protection of Human Rights Act 1993,
Protection of Child rights Act 2005, Prevention of Sati Act 1987, Suppression
of Immoral Traffic Act 1956, Bonded labour Abolition Act 1976, Domestic
violence Act 2005, Minimum wages Act, SCST Prevention of Atrocities Act
1989, all examples of recognition and respect for human rights and are strong
domestic sources of human rights law within the country.

4
HUMAN RIGHTS IMPLEMENTATION IN
INTERNATIONALLEVEL
The establishment of the United Nations Organisation and the
adoption of human rights by the UN charter was the landmark in the history of
human rights law. The adoption of the UDHR (Universal Declaration of Human
Rights, 1948) gave official recognition to human rights. UDHR also known as
the International Bill of Human Rights contains 30 articles and was ratified by
most member states. It lays down a set of minimum basic rights which should
be followed as a common standard by all member states, whether they have
ratified it or not. It lays down the norms of International behaviours to be
followed by member states with regard to right of individual. The following
are the rights laid down in the UDHR.
1) Right to equality and dignity
2) Right against discrimination on the basis of race, colour, religion, sex,
language, etc.
3) Right to life liberty and security
4) Right against slavery
5) Right against torture, cruel inhuman and degrading treatment
6) Right to be recognised as a person before law
7) Equality before law and equal protection of law
8) Right to effective legal remedies
 9) Right against arbitrary arrest, detention or exile
10) Right to fair hearing
11) Right to be presumed innocent until proved guilty and right to public trial
and proper right against ex-post facto laws (criminal laws with defence
retrospective effect)
12) Right to privacy
13) Freedom of movement and residence Right leave and return to his
country
14) Right to asylum
15) Right to nationality
16) Right to marry and form family
17) Right to property and right against arbitrary deprival of property
18) Freedom of thought, conscience and religion
19) Freedom of speech and expression
20) Right to peaceful assembly and association
21) Right to vote and take part in the government of his country
22) Right to social security
23) Right to employment equal pay for equal work, reasonable pay and
reasonable conditions of work, protection against unemployment, right
to form and joint trade unions.
24) Right to rest, leisure and holidays
25) Right to decent standard of living
26) Right to education
27) Right participate in cultural activities
28) Right to have a social and international order in which all the above
rights can be fully realised
29) Right against unreasonable restriction on the above rights and freedom
30) No state or person shall carry on any activity aimed at destroying the
above rights and freedom
In 1966, UNO adopted the following covenant in addition to
the UDHR:
1) ICCPR (International Covenants on Civil and Political Rights)
 2) ICESCR (International Covenants on Economic, Social and Cultural
rights)
These covenants are nothing but a further detailed explanation and
affirmation of the human rights laid down in UDHR.
ICCPR contains 53 Articles and 167 state parties the following are some
of the main provisions of the ICCPR:
1) Article 4 of the ICCPR says that states which are parties to this covenant
shall not violate the following rights event during emergency.
▶ Right to life
▶ Right against torture and cruel, inhuman, degrading treatment
▶ Right against slavery
▶ Right against imprisonment on ground of inability to fulfil contractual
liability
▶ Right against ex-post facto laws (Retrospective criminal law
imposing higher punishment)
▶ Right to be recognised as a person before the law
▶ Right to freedom of thought, conscience and religion
2) Article 10 Accused persons and juvenile offenders shall be separated
from convicted persons and given separate treatment.
ICESCR contains 31 Articles and 160 state parties the following are some
of the main provisions
1) Article 4 of the ICESCR says that states which are parties to the covenant
shall not impose unlawful, unreasonable and unreasonable and
unnecessary restrictions and limitations on the economic, social and
cultural rights of its subjects.
2) Article 5 says that restrictions cannot be laid down existing human rights
in any country on the ground that such rights are not mentioned in this
covenant or that on the ground that such rights are greater than that
guaranteed under this covenant.
Both ICCPR and ICESCR contain provisions for implementation and
enforcement of these rights.

UNO

HUMAN RGHTS IMPLEMENTATION

 Human Rights Human Rights
Committee Committee

Articles 28-45 ICCPR Articles 28-45 ICCPR

State Reporting Inter State Conciliation

System Communication Measures

Let us examine these in detail

1) Human Rights Committee: - is established for h hearing complaints and
deciding problem and disputes related to civil and political human rights
a) State Reporting system:
State parties to the ICCPR shall submit reports on the human rights situation
and implementation in their respective states. Such report is submitted to the
Human Rights Committee through the Secretary General of the UN. The
committee shall study such report and forward them to the ECOSOC
(Economic and Social Council) along with comments and suggestions of
other state parties are also forwarded to the ECOSOC. The ECOSOC has
several specialised agencies, sub-committee, expert committee and working
groups to deal with various types of human rights issues Egs: - Commission
and working groups on status of women, Sub commission for protection of
minorities, Committee on Crime Prevention and control Functional
Commission, Social Committee of NGO’S, etc.
b) Inter State Communication System:
If a state party to the ICCPR feels that another state party is giving effect
to the provisions of the ICCPR, it can demand explanation from such State
party written communication should be sent to that State. If no explanation is
given within three months or satisfactory explanation is not given then the
matter shall be referred to the Human Rights Committee. The Committee
shall hear both State parties and submit a report to both State parties within
12 months. The Committee shall hold closed meeting and try to reach at a
friendly solution in the matter.
 It is to be noted that the Committee shall deal with the matter only if the
complaining State party has exhausted all other domestic remedies.
c) Conciliation Procedure :
If the inter State communication system fails then the Human Rights
Committee shall form an Ad-hoc Conciliation Commission with the
consent of both State parties. The Conciliation Commission shall consist
of 5 persons acceptable to both State parties. Such persons shall be
nationals of other States. The Conciliation Commission shall submit its
report within 12 months, after hearing both State parties. The State parties
shall within 3 months of the receipt of the report inform the human Rights
Committee as to whether they accept the terms in the report or not.
2) State Reporting System: - It is followed in cases of implementation of
economic, social and cultural State parties to the ICESCR shall submit
report to the Secretary General of the UNO about the measures adopted by
them for implementation of human rights in the States. Copies of the
reports shall be forwarded to the ECOSOC and other specialised agencies
shall study and monitor these reports and evaluate the progress made by
the States and make necessary arrangement and technical assistance for
implementation of human rights in these States.
ECOSOC may transmit these reports to the Human Rights
Commission if necessary. ECOSOC also submit reports on such matters to
the General Assembly from time to time. If higher level of international
action and assistance is required then the ECOSOC will bring this matter to
the attention of all other organs of the UNO.
All the 6 organs of the UNO, namely;
1) General Assembly
2) Secretariat
3) Security Council
4) Economic and Social Council
5) Trusteeship Council
6) International Court of Justice
Play their respective parts for effective implementation of human rights.
The General Assembly has main committees, several sub-committees,
subsidiary and specialised organs like UNICEF, UNESCO, FAO, etc. and
international convention committees like CEDWA, CERD, CAT etc. United
Nations Human Rights Council and office of High Commissioner of Human
Rights (OHCHR) are also subsidiary bodies of the General Assembly.
The Secretariat has several centres and departments like Centre for Social
Development and humanitarian affairs, Centre for Advancement of Women,
Department of Political and Social Security affairs Centre against Apartheid,
Division for Palestinian Rights. It also has a special office in Namibia.
Security Council Take crucial decisions like whether international action or
intervention is necessary. The general rule under the UN charter is that no
individual State can interfere in another State sovereignty even in case of
human rights violation. But the UNO can interfere in the affairs of a State
(Including sending of troops) if the violation of human rights in that State is
very serious and a threat to international peace and security. Such decisions
are taken by the Security Council.
Trusteeship Council has the responsibility of administering trust territories.
Trust territories are generally weak and dependent States and former
colonies like Majuro islands, Italian Somaliland, Pacific islands and certain
African States. From 1994 onwards the trusteeship council become
temporarily inactive after the independence of last trust territory Palau. Most
of the independent trust territories have themselves become of the UNO.
International Court of Justice does not have compulsory jurisdiction but can
try and decide cases between State parties on international issues, including
human rights. However, it has been criticized that the ICJ is not much active
in its judgements related to human rights for instance, in the La Grand case
(2001 ICJ) 77; between Germany and USA, the court refused to decide the
issue whether the right to consular notification is a human right. In another
case in which the ICJ exercised advisory jurisdiction Re legality of threat or
Nuclear weapons (1996 ICJ) 240; the ICJ did not properly determine the
question whether the use of nuclear weapons would violate right to life under
Article 6 of ICCPR,
International Criminal Court (ICC) Established in 2012 under Rome statute
is permanent tribunal for deciding crimes against humanity, war crimes
genocides and crimes of aggression. Currently, 122 States have submitted to
its jurisdiction USA, India, China, and Sudan have not submitted to its
jurisdiction. Some States have not signed the convention but have not ratified
it.
ICC can exercise jurisdiction only if the domestic court do not take up
the case. It has power to issue summons and arrest warrants and punish the
offenders. ICC can exercise jurisdiction only in three situations:
1) If the accused is citizen of a state party.
2) If the crime took place in the territory of the state party.
 3) If crime is referred to it by the UN Security Council.

REGIONAL IMPLEMENTATION OF HUMAN RIGHTS

European American African ASEAN

Convention Convention Charter on Human
on Human on Human Human Rights
Rights, Rights, Rights Forum
1950 1978 (Banjul)
1986

All these conventions contain provisions which are more or less

replicas of the UDHR, ICCPR and ICESCR, along with certain additional
provisions. For example establishment and organisation of European Court of
Human Rights, Inter – American Court of Human Rights, African Commission
on Human Rights.
Article 16 of the European Convention specifically says that restrictions can
be imposed on aliens in matter of freedom of expression, freedom of
assembly and association and right against discrimination. Article 58 says
that a European State party cannot withdraw from this convention before 5
years. Article 27 of the American Convention says that the following human
rights cannot be suspended even during emergency:
 Right to life
 Right to human treatment
 Right against slavery
 Right against ex-post facto law
 Freedom of religion
 Right of family and child
 Right of name and nationality
 Right to participate in Government.
 The Preamble of the African Convention specifically aims at eliminating
Zionism Colonialism, neo-colonialism, apartheid and to break-up aggressive
foreign military bases.
ASEAN Human Rights Institution Forum is not as strong and binding like
the European, African and American conventions. However the ASEAN
Intergovernmental Commission on Human Rights (AICHR) was established in
2009 it is to be noted that the AICHR cannot receive or investigate complaint
of human rights initially. It is focussing more on human rights awareness and
promotion.

GLOBAL IMPLEMENTATION OF HUMAN RIGHTS

There are numerous treaties, convention and declaration between nations
of the world for this purpose.
 Convention against Torture (CAT).
 Convention on Elimination of All forms of Racial Discrimination (CERD).
 Convention on Elimination of all forms of Discrimination against Women
(CEDAW).
 Convention on Rights of Child (CRC).
 Convention on Prevention and Punishment of the Crime of Genocide
 Convention on rights of Disabled Persons
 Convention related to Status of Refugees.
There are also conventions on migrant workers, convention against
enforced disappearance, convention for Indigenous and Tribal people, etc.

● Declaration on Rights of Child 1923.

● Declaration on Rights of Disabled Person, 1975.
● Universal Declaration on Cultural Diversity.
● UN Declaration on sexual orientation and gender identity, 2008.
● Vienna Declaration on, 1993.
● Declaration of Human Duties and responsibilities 1998. Etc.

INTERNATIONAL ORGANISATION FOR HUMAN RIGHTS

There are both governmental and non-governmental organisations around
the world for this purpose. Almost all countries have governmental
organisation like Human Rights Commissions within their jurisdiction. The
following are some of the important international non-governmental
organisations (NGO’s):
 Amnesty International
 Red Cross
 Amazon Watch
 Centre for Human Rights and Humanitarians Law.
 Centre for Housing Rights and Evictions (COHRE)
 Committee to protect Journalists
 Disabled Peoples International
 Enough Project
 Society for Threatened Peoples
 Helsinki Watch
 Hindu American Foundation
 Human Rights Observers
 Human Rights without Frontiers
 Institute for War and Peace Reporting
 International centre for Human Rights Research
 International Partnership for Human Rights (IPHR)
 International Rehabilitation Council for Torture victims
 Islamic Human Rights Commission
 Medical foundation for care of Torture victims
 Peace Bridges international
 Protection international
 Point of Peace Foundation
 Physicians for Human Rights
 World organisation against Torture
 World Future Council
 Womankind International, etc.
Amnesty International is the NGO having more than three million members
and supporters around the world. Object of this organisation is to conduct
research on human rights take action against violation, prevent human rights
violation and demand justice for victims of human rights violation it was
founded in London in 1961 by Peter Benenson, a lawyer. The Key-areas of
its focus are:
1) Women, children minorities, and indigenous rights.
2) Torture
 3) Death penalty
4) Refugees
5) Prisoners of Consuenie* (mean persons imprisoned only because of their race
religion or political views)
6) Protection of Human dignity
7) Amnesty international received Nobel Prize for in 1977 and the United
Nations Prize in the field of Human Rights in 1978.

IMPORTANT POINT & CASE LAWS

First Optional Protocol to ICCPR 1976
States who signed and ratified this protocol agree to accept the
jurisdiction of Human Rights Committee. An individual who is a subject of
such a State can file written communication to the Human Rights Committee
in case of violation of his human rights in that State. However he should have
exhausted all other domestic remedies before approaching the Human Rights
Committee. The Committee shall inquire into the matter and demand
explanation from the concerned State. After hearing both sides, the
Committee shall inform its view on the matter to both parties and also report
it to the General assembly. The report submitted to the General Assembly will
help to build strong public opinion against the concerned State.
Currently 114 countries have signed this Protocol. The question as to
whether the decision of the Human Rights Committee can be treated as
judicial decisions is still under dispute.
 Second Optional Protocol to ICCPR, 1991
States who have signed and ratified this protocol agree to abolish
death-penalty in their jurisdictions currently 75 States have signed it
Argentina, Australia, Austria, Belgium Brazil, Canada, Colombia, Denmark,
Finland France, Greece, Germany, Italy, Mexico, Nepal, Netherlands,
Newzeland, Norway, Philippines, South Africa, Spain, Switzerland, Turkey, U.K
are some of the prominent Parties. However many countries have ratified this
protocol with certain reservations and exceptions like military crimes,
war-crimes and very serious crimes. Egs: - Greece, Cypress Brazil, Azerbaijan,
Spain, Finland, Chile.
 CAIRO Declaration of Human Rights in Islam, 1990
This declaration was signed and ratified by 57 States who are
members of OIC (Organisation of Islamic Conference). The provisions of this
declaration give an overview of Islamic attitude towards human rights.
This declaration is widely criticized on the ground that it gives prominence
only to Quranic and Shari at Laws and overrides the provisions of the UDHR
and other important International declarations and conventions. The main
points of criticism are:
1) Unequal treatment to women
2) Discrimination toward non-muslims
3) Restriction on freedom of religion (Art 10)
4) Punishment for crimes according to Shari at. Eg: - Capital Punishment,
whipping stoning, amputations, etc.
5) All other types of freedom and rights are also subject to Shari at Law
Article 22 of the OIC Convention on Combating International Terrorism has
also been widely criticised. According to this Article, armed struggle against
foreign occupation, colonialism hegemony, and aggression aimed at
liberation and self determination cannot be treated as terrorism. The
definition of terrorism in Article 1 was also criticised as being loosely and
vaguely worded.

IMPORANT CASE LAWS

■ (1999)
Govt of Ontario State in Canada provided public funding in favour of
Roman Catholic school only. The complainant wanted to give Jewish
education to his children. As Jewish school were not entitled to public
funding, he faced financial hardship in providing education to his children. He
contended that the Education Act of Ontario violated Article 2, 18, 26 and 27
of the ICCPR.
Human rights committee held that Canada has violated these Articles of a
State wants to provide public funding to religious school; it must do so
without making any discrimination. It at all, the State makes discrimination,
there should be a rational and reasonable cause behind such discrimination.
■ (2001)
Mrs. Ignatane, wanted to contest for the Latvian local election in 1997.
Even though she was certified by 5 experts as being proficient in Latvian
language in 1993 she was failed by a single inspector in a Latvian language
exam held in 1997. As a result her election candidature was cancelled. Her
appeals were rejected by Latvian courts. Therefore she filed a complaint
before the Human Rights Commission.
The Human Rights Commission held that Latvia has violated Article 25 (right
to participate in public life) of ICCPR.
 ■ (2000)
Representatives of the Baster Community of Namibia filed a complaint
before the HRC, as the State of Namibia had instructed Civil servants not to
Afrikaans language.
The HRC held that Namibia has violated Article 26 (Discrimination on the
ground of language) of ICCPR.
■
In this case of unlawful detention and torture by state authorities, the HRC
held that Uruguay has violated Article 7 & 9 of the ICCPR (Right against
torture and Right against arbitrary arrest).
■ (1997)
Drake, who was a war prisoner in Japan during world war 2nd, made a
complaint against New Zealand government on the ground of the
discrimination shown by New zealand between war-prisoners in Japan and
Germany. As per the treaty of San Francesco; New Zealand gave lots of
benefits and reparations to war prisoners in Germany only.
The HRC dismissed Drake’s complaint on two grounds:
1) The causes of action in this complaint occurred before New Zealand
became a party to the first Optional Protocol.
2) The type of discrimination alleged by Drake is not listed in the ICCPR.
Hence the HRC has no jurisdiction to deal within this complaint.
■ (1992)
Australia had passed a law criminalising homosexuality. However the law
had not been brought in to force even after 10 years. The complainant had
never been prosecuted under this law, but had suffered great tension and
emotional anguish due to the existence of this Law.
HRC held that he can be considered as a victim of human rights violation.
■ (2012)
Lubanga a Congo leader was accused of massive human rights violation.
Large-scale killing of ethnic groups, torture, rapes and forcefully recruiting
child soldiers. The International Criminal Court (ICC) sentenced him to 14
years imprisonment.
Several other cases on human rights violation are currently pending
before the ICC.
■ , C.E.R.D. (1988)
Yilmaz-Dogan was a Turkish National, working in a Netherland company,
she was pregnant. She asked the employer to give her maternity benefit leave.
Instead of giving maternity benefit to the petitioner, the employer dismissed
her from services. On questioning the company replied that such benefit
would be given only to Netherland pregnant women.
The petitioner submitted petition before the committee on Elimination of
Racial Discrimination contending that the employer’s act was violative of
Articles of NCERD.
Decision: The Committee on Elimination of Racial Discrimination gave its
decision in favour of the petitioner, and instructed the Netherland Govt. to
amend the municipal laws according to the provisions of NCERD.
■ Brocks vs. Netherland HRC 196 (1987)
Brocks was a nurse. She was dismissed from services due to her illness
she was not paid unemployment benefit according to the Dutch Social
security law, a woman employment would get unemployment benefit, if she
could prove that she was the “only bread winner” of the family.
This condition would not apply to males. She applied to Human Rights
Commission pointing out the discriminations shown between males in Dutch
Security laws, and such laws were against Article 26 of ICCPR.
Decision: The Human rights Committee upheld her contention, and
instructed the Netherlands Govt. to remove the provisions relating to the
discrimination between males and females.
■ HRC 28 (1981)
Lovelace was an Indian woman she married a Canadian and left to Canada.
She relinquished Indian citizenship and took the Canadian citizenship, after
some years disputes arose between her and her husband.
They took divorce. According to the Indian law, once she has relinquished,
she was residing in Tobougue. She was not allowed to return to India.
The Canadian Govt. asked her to leave the country as she was a divorce; she
submitted an application to the HRC stating that the Canada Govt.’s action
was violative of Article 27 of the ICCPR.
Decision: The Human rights Commission of Canada gave decision in favour
to Lovelace, and asked the Canada Govt. to amend its laws.
■ {HRC 112 (1982)}
A report was received by the Columbian police in connection with a
kidnapping and that the kidnappers hid in a house. The police raided the
house. No one was found in the house, but they hid in the same house waiting
for kidnappers. Seven civilian people in no way connected with the
kidnapping were coming towards the house.
 The police fired at them without giving any warning. Mrs Maria Fanny Surez
de Guerero, the wife of the one of the deceased in the said incident,
submitted an application to the Human Rights Commission.
The Human Rights Commission of Columbia enquired into the matter. The
Govt took the defence of a Decree passed by the Parliament for protecting
the police.
Decision: The Human Rights Commission condemned the attitude of
Columbian Govt., and ordered it to pay compensation to the applicant.
Estrella vs Uruguay (HRC 93 1983)
Estrella was an Argentinean national. He was a professional pianist living in
Uruguay all of a sudden; the Govt. of Uruguay informed that she should leave
the country as she was regarded as the opponent of the Uruguay Govt.
While she was preparing to go to her country. The Uruguayan police arrested
her without showing any cause. In detention she was tortured by means of
the electric shocks, beating with rubber truncheons, punches, kicks, hanging
etc.
After release from the detention, she filed application to the Human Rights
Commission of Uruguay.
Decision: the Human Rights Commission condemned the attitude of
Uruguayan Govt. and ordered it to pay compensation to Estrella.

5
HUMAN RIGHTS IMPLEMENTATION IN INDIA
Being a democratic country, India has always respected and upheld the
concept of human rights. India is a party to the UDHR and ICCPR and ICESCR.
However, India has made some reservations on the right of self determination
and right of equal opportunity under the ICESCR. India is not a party to the
optional protocol to ICCPR and other important documents like Charter of
International Criminal Court, convention concerning elimination of child
labour, Convention for right to organise and collective bargaining, convention
for occupational safety and healthy working environment, Convention on
protection and rights of Migrant workers, Convention against discrimination
in Education, Convention on status of refugees and Stateless persons, etc.
However, India is a party to international document like CEDAW, CERD,
Convention against Transnational organised crime, Slaver Convention, on
Suppression of Trafficking in persons and prostitution, CAT (convention
against torture), Convention on Rights of Child, Convention against forced
Labour, International Convention against taking of Hostages, International
Convention against Terrorism, etc
Most of the provisions of the UDHR, ICCPR and ICESCR have been
incorporated in to our Constitution, particularly in the preamble, Part III
(Fundamental rights) and Part IV (Directive Principles). Our Courts have
further widened the scope of human rights by a liberal and purposive
interpretation of the constitutional provisions.
Article 21 of the Constitution says Right to Life and liberty. This has been
interpreted by the Supreme Court so as to include:
 Right to privacy – (1963) in this case
domicillary visits by the police were held to be violation of Article 21 of the
Constitution
 Even a prostitute has right to privacy –
(1991)
 Right against arbitrary arrest – and
compensation for unlawful arrest – (1983)
 Right against mistreatment in Police Station –
(1987)
 Right to humane jail conditions
 Rights free, fair and speedy trial –
(1976), . (1978)
 Right to Travel abroad – (1967)
 Right against sexual harassment in work places –
(1997)
 Right to medical assistance in emergency cases –
 Right to healthy environment and preserve cultural heritage –
 A person should not be imprisoned due to genuine inability to meet his
contractual liabilities.
 Right to minimum wages -
 Right against bounded labour –
1982
 Right t housing –
 Non-voluntarily narco-analysi, brain mapping and lie-detector tests
violative of Article 20 (3) right against self-incrimination Article 21.
 Right to clean and pure water – case 1988
 Right to sleep – case 2012
 Recently a NGO association called has filed a
petition in the Bombay High Court against BCCI alleging that auctioning of
IPL players is human rights violation.
 Right to education has incorporated in the Constitution (86th amendment)
in 2002
Most of the cases involving violation of fundamental rights / human
rights were filed in the form of Public Interest Litigations (PIL) by invoking
writ jurisdiction of High Court and Supreme Court under Articles 226 and 32
of the Constitution. Courts have even relaxed the rule of Locus-standi for
entertaining more and more PILS by persons who are not directly affected by
the human rights violation. However, in
(1976): the Supreme Court held that no person has Locus-standi to file a writ
to enforce fundamental rights under Article 226 during declaration of
Emergency. After this judgement, the Constitution passed 44th amendment
according to which Article 20 and 21 cannot be suspended even during the
emergency.
According to Human Rights Watch Committee (HRW) the following are the
major human rights issues in India:
1) Lack of accountability of security forces
2) Police Tortures
3) Discrimination of dalits and indigenous people
A UN expert report in 2011 says that victimisation of human rights activists in
India is also a major human rights issue.
Besides there are various other issues like Slum-dwellers, increase in crime
rate against women, illiteracy, child labour Khap-Panchayats in North India
who kill eloping lovers and couples who marry against their parent wishers,
etc.
INPORTANT HUMAN RIGHTS ACTIVISTS AND ASSOCIATION IN INDIA
▶ AIHRA (All India Human Rights Association)
▶ Amnesty International India
▶ UNICEF India
▶ Human Rights Watch India
▶ Aam Aadmi Lok Manch
▶ Peoples Union for Civil Liberties
▶ Eminent activist like Medha Patkar, Prof Upendra Baxi, M.C. Mehta
IMPORTANT LAW RELATED TO HUMAN RIGHTS
a) Prevention of Sati Act, 1987
b) Child Marriage Restraint ACT, 1927
c) Domestic Violence Act, 2005
d) Minimum Wages Act
e) Bonded Labour Abolition Act 1976
f) Suppression of Immoral Traffic Act, 1956
g) Protection of Child Rights ACT 2005
h) Maternity Benefit Act
i) SCST (Prevention of Atrocities) Act, 1989
The land mark law in the field of human rights in India is the Protection
of Human Rights Act, 1993

THE PROTECTION OF HUMAN RIGHTS ACT 1993

The world Conference on Human Rights in 1993 urged the
Governments to strengthen National Institutions and organs of society to
promote and safeguard Human Rights.
The Parliament of India enacted the Protection of Human Rights Act,
1993 with following objects.
1) To set up National Human Rights Commission.
2) To set up State Human Rights Commission in states.
3) To define functions and powers of the National Commission and
State Commissions.
 4) To prescribe procedures to be followed by the commissions while
inquiring into the complaints of violations of Human Rights.
5) To set up Human rights Courts.
The Human Rights Act extends to the whole of India.
Definition of Human Rights
Section 2 (d) of the Protection of Human Rights Act 1993 defines human
rights as those rights relating to life, liberty, equality and dignity of the
individual guaranteed by the constitution or embodied in International
Covenants and enforceable by courts in India.
The expression International Covenants means the International
Covenants on Civil and Political Rights and the International Covenants on
Economic, Social and Cultural Rights adopted by the General Assembly of the
United Nations on 16th December 1966.
NATIONAL HUMAN RIGHTS COMMISSION (NHRC)
Section 3 of the Act empowers the Central Government to constitute a
body to be known as the National Human Rights Commission. The National
Human Rights Commission shall consist of –
a) A Chairperson who has been a Chief Justice of the Supreme Court.
b) One Member who is or has been, a judge of the Supreme Court.
c) One Member who is or has been, the Chief Justice of High Court.
d) Two Members to be appointed from amongst persons having
knowledge of, or practical experience in, matters related to human
Rights.
The Chairpersons of the National Commission for Minorities, National
Commission for the SCST and National Commission for Women shall be
deemed to be Members of the Human Rights Commission.
Thus National Human Rights Commission shall have eight members.
The Chairperson and members shall hold office for a period of five years
or until they attain the age of seventy years, whichever is earlier. They shall
be eligible for re-appointment for another term.
The Chairperson and other members shall be appointed by the president.
The appointment shall be made after obtaining recommendations of a
Committee consisting of the Prime Minister, Speaker of the House of the
People. Minister in Charge of Home Affairs, Leader of Opposition in the
house of People, Leader of Opposition in the Council of States and Deputy
Chairman of the Council of States. No sitting judge of the Supreme Court or
sitting Chief Justice of the High Court shall be appointed except after
consultation of Chief justice of India.
The Commission shall have the Secretary General who shall be the Chief
Executive officer of the Commission.
The Headquarters of the Commission shall be at Delhi. The Commission
may, with the previous approval of the Central Government, establish officer
at other places in India.
The Commission shall perform the following functions:
1) Inquire in to complain of violation of human rights on negligence in the
prevention of such violation by public servant. The inquiry may be
conducted on a petition presented to it by a victim or any other person on
his behalf or .
2) Intervene in any proceeding involving in any allegation of violation of
human rights pending before a court with the approval of such court.
3) Visit any jail or any other institution, under the control of the state
Government, where persons are detained or lodged for purpose of
treatment, reformation or protection to study the living conditions of the
inmates and make recommendations.
4) To study treaties and other international instruments on human rights and
make recommendation for their effective implementation.
5) Undertake and promote research in the field of human rights.
6) Spread human rights literacy among various sections of society and
promote awareness of the safeguard available for the protection of these
rights through publications, media, seminar and other available means.
7) Encourage the efforts of non-governmental organisations and institutions
working in the field of human rights.
The commission shall, while inquiring into complaints of violation, have
all the powers of a civil court trying a suit.
The commission may take any of the following steps upon completion
of an inquiry.
1) If the inquiry discloses the commission of violation of human rights or
negligence in the prevention of violation of human rights by a public
servant, it may recommend the concerned Government or authority the
initiation of proceeding of prosecution or such action as the commission
may deem fit against the concerned person or persons.
2) Approach the Supreme Court or the High Court concerned for such
directions orders or writs as that Court may deem necessary.
3) Recommend the concerned Government or authority for the grant of such
immediate interim relief to the victim or the members of his family as the
commission may consider necessary.
The Commission shall submit an annual report to the Central
Government and the concerned State Government. The Central Government
and the State Government shall cause the annual report of the commission
laid before each House of Parliament or the State Legislature respectively
along with a memorandum of action taken or proposed to be taken on the
recommendations of the Commission and the reasons for non-acceptance of
recommendation, if any.
STAE HUMAN RIGHTS COMMISION
Section 21 of the Act empowers each State Government to constitute
State Human Rights Commission.
The State Human Rights commission shall consist of –
a) A Chairperson who has been a Chief Justice of a High Court
b) One member who is or has been a judge of a High Court
c) One member who is or has been a district judge in that state
d) Two members to be appointed from amongst a person having special
knowledge of or practical experience in matters relating to Human Rights
The Chairperson and members of the State Commission shall be
appointed by the Governor. The appointment shall be made after obtaining
the recommendation of Committee consisting of the Chief Minister, Speaker
of the Legislative Assembly, Home Minister and Leader of Opposition. A
sitting judge of the High Court or a sitting District Judge shall not be
appointed except after consultation with the Chief Justice of the High Court.
A State Commission may inquire in to violation of human rights only in
respect of matters related to any of the entries enumerated in List II and List
III in the seventh schedule to the Constitution.
If any matter has already inquired into by the National Commission or
any other Commission dully constituted under any law for the time being in
force, the State Commission shall not inquire into the said matter.
In the matter of inquiry into the complaints of violation of Human Rights
and recommendation, the State Commission shall have all the powers of the
National Commission.

6
SPECIFIC HUMAN RIGHTS ISSUES
1) WOMEN
The UDHR and other important international documents declare
equality of all human beings and non-discrimination on basis of religion,
language, sex and other factor. However, the greatest problem faced by
women, even in advanced countries is basic that of GENDER
DISCRIMINATION even though gender-equality has been recognised as
human rights. Women are being discriminated in the field of education
politics, employment, wages, etc. Other human rights problems faced by
women are:
● Sexual and Domestic Violence
● Lack of Motherhood Care Including Pregnancy Death and child Birth,
Death
● Female Infanticide
● Child marriages and Forced Marriages
● Problems of Domestic Servants and Migrant Workers
According to HRW (Human Rights Watch) report, woman face sexual
violence and harassment in prisons; that too in developed countries like USA,
HRW has rated India as the top most dangerous countries in the world for
women to travel. Other dangerous countries are Brazil, Turkey, Egypt,
Columbia, Guatemala, Mexico, and Kenya. In countries like Afghanistan;
women are severely punished for moral crimes like adultery, running away
from home without man’s permission, etc.
There are certain International Treaties and Conventions for women’s human
rights.
 CEDAW (Convention for Elimination of All forms of Discrimination
against Women) 1979 – Contains 30 Articles. Also known as International
Bill of Women’s Rights. This is the first convention to recognise
Reproductive Rights of Women.
There is also a CEDAW Committee for implementation of the rights State
parties who have signed CEDAW should submit periodical report. State
parties who have signed the Optional Protocol to CEDAW should agree to
submit to the jurisdiction of the CEDAW committee, in cases of women’s
rights violation in these States. It is noteworthy that India has not signed the
Optional Protocol to CEDAW.
 UNIFEM ( UN Development Fund for Women) 1976
 Provides financial and technical assistance to programmes to promote
women’s human rights
 In 1993, the UN General Assembly passed a Declaration on Eliminating of
violence against women
 UN Women, 2010 (UN Entity for Gender Equality and Empowerment of
Women)
■ Section 304 – B IPC which makes death a criminal offence
■ Indian Evidence Act also contains presumptions in case of Dowry death
and consent in Rape case.
■ Under IPC, disclosing identity of rape victim is also a criminal offence.
■ In case of offence of Adultery women are not punishable under IPC
■ Section 125 Cr. PC maintenance to wives

The fact that India had a woman Prime Minister and Chief Ministers are
indicative of the acceptance of gender equality. However, it is to be noted that
problems of tribal women, especially unwed mothers have not been given
due importance.

Indian judiciary also delivered certain landmark judgements on human

rights of women in (1997) the Supreme Court
issued certain guidelines under Article 141 of the Constitution to prevent
sexual harassment of women in work places. In
(1991) it was held that even a prostitute has Right to
privacy and human dignity. No one can violate her person without her
consent. In case Section 125 of [Link] (right to maintenance from
husband) was made applicable to Muslim women also. But, the effect of this
decision was diluted by the passing of Muslim Women (Protection Right on
Divorce) Act 1986

National Commission for Women and State Commission for Women are also
established to protect and promote interest of women. These commissions
also aim at:

 Generating legal awareness among women

 Provide pre-litigation services for women
 Fund litigations involving women’s issues
 Inspect jail, women’s homes and institutions, etc.
 Provide speedy justice to women
 Empowers women
 Research and review existing laws and suggest reforms, etc.

The commission can entertain complaints and even take suo-moto

action.

Other organisations for women’s rights

CREA, Manavi, Swayam, Vimochana, IGSSS, political based organisations like
Mahila Morcha, All India Democratic Women Association, etc.
2) CHILD The following are the universally recognised human rights of a
child:
 Right to human identity
 Right to special protection and care
 Right of association with both parents including right not to be
separated from parents
 Right to basic needs (food, clothing, shelter) as well as education and
health care
 Right to adequate standard of living
 Right to separate criminal laws
 Right against discrimination on the grounds of race, religion, colour,
origin, etc
 Right to live in safe environment
 Right against abuse
 Right to ply and recreation, balanced diet, good sleep
The rights of a child are co-relative to duties of parents, teachers and
guardians’ Juvenile delinquency, child labour, orphans, child refugees
street-children child abuse sale of children child-pornography are serious
issues. Forced military services infanticide organ sale are also problems.
Children should not be given capital punishment, life imprisonment and other
rigorous forms of punishment. Separate trials and separate treatment should
be given to Juvenile offenders.
IMPORTANT INTERNATIONAL COVENANTS
A) CRC (Convention on the Rights of the Child) 1989
Contains a full range of human rights (civil, cultural, economic, political and
social) of a child. USA and Somalia have not ratified it. A committee on the
Rights of Child was also formed to implement the provisions of this
convention. The CRC is based on 4 principles:
▶ Non discrimination
▶ Best interest of the child
▶ Right to life and Right to survival
▶ Right to development
Optional Protocol on involvement of children in Armed Conflicts, 2002
and Optional Protocol on sale of children, Child Prostitution and Pornography,
2002 are also part of the CRC.
B) VIENNA DECLARATION AND PROGRMME OF ACTION 1993
All States should make national action plans and international efforts to
implement the provisions of CRC. Special priority should be given to
reduce maternal and infant mortality rates, malnutrition, providing safe
drinking water and basic education. Emergency action plans should be
made in the event of natural disaster and armed conflicts
C) CHILD RIGHTS CAUCUS was set up by the UN General Assembly to
promote full implementation of CRC
D) UNICEF (United Nations Children Fund) is a specialised agency that
provides humanitarian and development assistance to children and mother
in developing countries.
E) There are also ombudsman facilities in several countries to deal with
human rights violation of children.
UNBORN CHILD A collective reading of Article 25 of the UDHR, CRC 1989
ICCPR CERD ICESCR Genocide Convention and UN Declaration of Rights of
the Children 1959 bring out the following rights of unborn child:
 Right to life
 Special care, protection, nutrition and assistance during motherhood
 Social security
 No death penalty on pregnant women.
Right of life of unborn child is in direct conflict with the right of women to
avoid unwanted pregnancy. However, Medical termination of pregnancy only
in certain circumstances.
IN INDIA
India has ratified most of the international covenants on Rights of Child.
Constitution also authorises making of special laws for benefit of children
Article 15 & 16 Right to education was accepted in 2002. There are various
laws for the protection and empowerment of children
▶ Child Labour abolition Act
▶ Child marriage Restraint Act
▶ Juvenile Justice Act and Protection of Offenders Act
▶ Protection of Children from Sexual abuse Act 2012, etc.
There are also Child line centres and organisations like CRY (Child relief and
you), etc.
Indian Constitution also upholds rights of Child Article 15 (special laws can
be made for the benefit of Children).
Article 23 Prohibition of traffic in human beings and forced labour.
Article 24 Prohibition of employment of Children in factories, etc.
Section 82 & 83 of Indian penal Code grants immunity from criminal liability
to children under age of 7 years and conditional immunity to children
between the age of 7 and 12 years. [Section 82 provides Absolute immunity
( ), Section 83 provides partial immunity)
Section 293 of IPC, Sale of obscene objects, etc. to a child.
Section 305 of IPC Abetment of suicide of Child.
Sections 312 – 318 of IPC Miscarriage, Injuries to Unborn Children,
Exposure of Infants, and Concealment of birth.
Sections 363-372 of IPC Kidnapping minors for begging and maiming,
Procuration of minor, selling minor for prostitution, etc.
Section 361 of IPC kidnapping from lawful guardianship.
Section 125 of [Link] gives a child the right to claim maintenance from its
father.
Section 112 of Indian Evidence Act lays down a non rebuttable presumption
of legitimacy of a child from during mirage and within 280 days of dissolution
of marriage.

3) Refugees
Refugees are persons who have to run away from their homeland in
order to escape from natural disaster, war genocide, torture and persecution.
Refugees have right to seek asylum in other countries. This is evident from
the UN Convention relating to status of refugees, 1951 and Article 14 of UDHR.
The UN also has a High Commissioner for refugees (UNHRC) which is
helping more than 22 million refugees worldwide. States who are parties to
the Refugees Convention, 1951 have responsibility to protect and safeguard
refugees within their territory and co-operation within UNHRC.
It is to be noted that India is not a party to the Refugees Convention, 1951.
There are also no domestic laws on this subject. The only law in India
governing entry and stay of foreigners is the Foreigners Act, 1966. The
National Human Rights Commission of India has held that the provisions of
the Refugees Convention, 1951 can be relied on when there is no conflict
within municipal law of India in
(1992), the Madras High Court held that Article 14
(Right to equality) and Article 21 (Right to life and personal liberty) are
available to non citizen also; including refugees. The Court emphasised that
refugees should be given the right of voluntary repatriation. Note: Women, Children
& Refugees are often referred to as vulnerable groups

4) Tribal and SC ST’s

The ILO Convention No: 169 of 1957 is an International Treaty to protect and
promote the interests of tribal and indigenous persons. This convention does
not define ‘tribal’ and ‘indigenous persons’. However, it is well settled that
tribal have all the human rights and fundamental freedoms like any other
person without discrimination. The following are also rights tribal:
 Right to self-identification and self-determination based on their respect
for the earth tradition and customs.
 Right to citizenship.
 Right to be consulted and informed before beforehand about any issues
or projects affecting their interests.
 Right to participate in such projects and decide their priorities for
development.
 Right not to be arbitrarily dispossessed of their land and natural habitats.
 Right to be compensated
Right of consultation should be through their representatives and should be
in good faith. It is to be noted that there are only 27 parties to the convention
No: 169. These States are bound to implement the provisions of the
convention through domestic laws.
UNIPP (United Nations Indigenous Persons Programme) and UN Special
Rapporteur to Sub-commission on Prevention of Discrimination &Protection
of Minorities are also committed towards this goal India is a State party to ILO
convention, 169. Article 15 and 16 of Indian Constitution provides for making
special laws for benefit of SCST’s and backward classes. Article 17 of
Constitution prohibits untouchablity. In fact, the constitution of India was
drafted by an untouchable (Dr, [Link]). In India, SCST’s and backward
classes are given several concessions and reservations in the matter of
employment, education, etc.
The SCST’s (Prevention of Atrocities) Act 1989 is also landmark legislation.
This Act gives a list of 22 offences and the punishments Egs: - insulting,
injuring, abusing a member of SCST, wrongfully dispossessing him from his
land, premises, interfering with his lawful rights over water or with his right to
vote forced labour, sexual exploitation, outraging modesty, malicious
prosecution, obstructing him from entering a public place, giving or
fabricating false evidence against him, committing mischief against his
property, Abetment of these offences, etc. Punishment ranges from 6 months
to life imprisonment and fine, forfeiture of property, higher punishment to
public servants and repeated offences.
There are also land laws within each state of India regulating transfer of
land by SCST.
Narmada Bachao Andolan under the leadership of social activist, Medha
Patkar is also a great move for protecting the rights and interests of tribal.
This movement is directed against Sardar Sarovar Dam Project for hydro
electric power over the river Narmada in Gujarat. In addition to environmental
problems, it would also result in displacement of large number of tribal in that
area and improper rehabilitation.
This movement consist of tribal, adivasis, farmers, environmentalists
human rights activists and even celebrities who organise hunger strikes and
media coverage. It was alleged that there was no proper planning and
research for the project and no decisions regarding compensation to the
displaced persons. In 1995, World Bank which had agreed to fund for the Dam
project withdraw from the scheme.
After several years of hearing the Supreme Court in 2000 has allowed
the construction of the Dam to proceed subject to conditions. Court also
formed a mechanism to supervise and monitor the construction and to
ensure that it is completed in the least harmful manner.

Chakma-Hajong tribal who had migrated to North East India from

Bangladesh in 1964 were cruelly tortured and threatened by the people of
North-East India (Assam, Arunachal Pradesh, etc.) there were forcibly driven
out of these States.
Supreme Court ordered the Union and State government to provide
security and other facility to Chakma-Hajong tribal.
5) Minorities
 UDHR and ICCPR (Article 27) clearly lays down that no person shall be
discriminated on the ground of race, colour, religion, language, origin or other
facts minority population of any country is entitled to the same rights and
privileges as those of the majority population. Rights of minorities are:
 Right of Identification
 Right against discrimination
 Right of protection of existence
 Right against persecution
 Right to protect and preserve their cultural customs and traditions
 Right to participate in political and public life, etc.
The first International Convention on Minorities was the GENOCIDE
CONVENTION 1951. This convention was necessitated after the 2nd World
war during which several atrocities were committed against Jews by German
Nazis. There are 142 states parties to the convention. These States are
committed to prevent and punish genocide in their territories. Genocide
(manslaughter) means act committed with intent to destroy a national,
ethnical, racial or religious group. Also includes attempt, abetment and
conspiracy to commit genocide. Persons who commit genocide should be
tried and punished either by the competent state or by the International
Criminal Court.
UNHCM (UN High commissioner for Minorities) was also established for
protection and promotion of interest of minorities. The European Union also
has institutions for this purpose. Many countries in the world have
‘Ombudsman’ and Commissions for minorities.
India being a secular country has always tried to uphold the interest of
minorities the following are the relevant provisions in the Indian Constitution:
● Article 25 Freedom of Religion
● Article 14 Right to equality
● Article 15 & 16 no discrimination on the ground of religion, race,
language, etc.
● Article 29 & 30 Cultural and Educational rights (It is to be noted that
minority unaided schools are exempted from the Right to Education Act)
● Article 31 State shall not discriminate between educational institution in
the matter of granting aid
● Article 27 No tax for promotion of religion
However many states in India have laws which restrict Article 25 (freedom of
religion).
There is also National Commission for Minorities and State Commission
for Minorities
Functions of these Commissions are:
 Evaluate the progress and development of minorities
 Ensure constitutional safeguards to minorities
 Recommendations and effective implementations for benefit of
minorities
 Entertain complaints related to minorities
The commissions have powers of a Civil Court in this regard
The NCM recognises 5 groups as minorities namely: Muslim, Christians,
Sikhs, Buddhists and Parsis.
Problem of DALIT CHRISTIANS is very pathetic in India. They are
neither accepted properly in Christian community nor are they given the
privileges of backward classes by the government under the presidential
order of 1950, Dalit Sikhs and Dalit Buddhists were given the status of Hindus.
But nothing was said about the status of Dalit Christian. Mandal Commission
Report had recommended State assistance to be given to genuinely backward
sections without any discrimination. Here also Dalit Christians were ignored.
Several laws made for the benefit of SCST’s like protection of Civil Rights Act
1955 and SCST (Prevention of Atrocities) Act 1989 is also not applicable to
Dalit Christians.
There are also various legal biases under personal laws like marriage laws,
succession laws, guardianship and maintenance laws, etc.
6) PRISONERS also have several human rights; but subject to certain
conditions
■ Right to life
■ Right to legal aid
■ Right to speedy, free and fair trial (Hussainara khotoon case 1979)
■ Right to be free from torture and maltreatment (Sunil Batra v. Delhi
Administration 1978, Charls Sobraj case)
■ Right against unnecessary fetters and handcuffing (Citizen for
democracy v. State of Assam 1995)
■ Right to bail and remand
■ Right against solitary confinement
■ Right to inform someone about the arrest, etc. (Joginder Kumar v.
State of UP 1994)
■ Right to compensation (Rudul shah v State of Bihar)
 ■ Right to additional protection (Raikonda Reddy v. State of AP)
There are International Conventions dealing directly on the subject of
prison justice. There is only the Geneva Convention on Prisoners of War
1948 and general principles laid down in the UDHR and ICCPR.
In India, the centuries old Prisons Act, 1894 and Prisoners Act, 1900 is
still followed.
The main problems faced in Indian prisoners are:
 Inhuman treatment, Custodial death
 Overcrowding
 Lack of good trained staff and poor management
 Bad condition of age-old prison building
 Problem placed by under trial prisoners, delay in trial, keeping together
with convicted prisoners, etc.
In (1983): it was held that undue delay in
execution of death sentence and the mental anguish faced by the prisoner
due to it is violative of Art 21 of the Constitution.
In (2009) it was held that referring to prisoners
as death roué prisoners or condemned prisoners remained them about their
situation every moment. Condemned prisoners and their families have a right
to require decision to be taken within reasonable time. Article 21 of the
Constitution is much relevant even at the stage of death sentence. Pardon
must be based on sound legal principles related to the case.
In [(2006) 2scc243] Supreme Court
laid down the circumstances under which death sentence may be awarded:
 If murder is committed in an extremely crucial manners so as to shock
the conscience of the society.
 If the murder is committed for bad and selfish motive Eg: - Murder by
hired killers, Murder for financial gains by a person in position of trust,
Murder committed while betraying own country
 Murder of a member of SCST for impersonal reasons, dowry death,
bride burning, killing wife to marry another woman, etc.
 Multiple murder
 Murder of innocent child, helpless woman, old or infirm person.
7) WORKERS
Whether workers rights or labours rights are human rights proper or just
legal rights this has been a topic of debate. However, it has been universally
accepted that workers do possess a minimum guaranteed human rights. This
is very evident from International Agreements like UDHR, (Articles 23 & 24),
ICESCR (Articles 6 to 8) and standards laid down by ILO (International Labour
Organisation) some of these rights are:
● Right to work and employment
● Right against discrimination in employment matters
● Right to rest, leisure and holidays with pay
● Right to safe working conditions
● Right to form unions (freedom of association)
● Right of collective bargaining
● Right to reasonable wages and minimum wages
● No slavery, forced labour or child labour.
WTO (World Trade Organisation) has recognised certain standards to
be followed for labour organisations. ILO which is a United Nations agency
originated in 1919 deals with international labour issues and register
complaints against states that are violating its rules. However, it cannot
impose punishments or sanctions on the government. It has a tripartite
structure consisting of government employers and workers in the ration of
[Link]. Till date, it has adopted more than 189 Conventions. It holds
International Labour Conferences in every. States have to submit reports at
these conferences currently 185 countries are members of ILO.
Most labour campaigns around the world were for the cause of limiting
hours of work. The European Union has fixed a minimum limit of 48 hours a
week; including overtime. Extra wages should be given for overtime.
There is also an International Covenant for migrant workers.
In India there are unions for almost all classes of workers including domestic
servants. All the relevant Constitutional provisions (Art 14, 15, 19, etc.) are
also applicable to labour laws. There are wide verities of labour laws in India
like:
 Payment of wages Act, 1936
 Minimum wages Act, 1954
 Trade Unions Act, 1926
 Workmen’s Compensation Act, 1923
 Industrial disputes Act,1947 Employment State Insurance Act, 1948
 Factories Act, 1948
 Maternity benefits Act, 1961
 Employees Provident fund Act.
8) STATELESS PERSONS
 Stateless persons are persons who do not have nationality (citizenship)
of any State. The interests of such persons are not protected by any State.
Sometimes persons who are driven away from their home country and
become refugees may become Stateless persons. Currently, there are more
than 12 million Stateless persons around the world. Most of these persons
are found in countries like Palestine, Bangladesh, India, Nepal Congo Iraq,
Kenya, Kuwait, Lebanon Syria, Saudi Arabia, Malaysia and Thailand. Largest
numbers of Stateless persons are found in Palestine.
The UDHR expressly lay down Right to nationality as human rights and says
that no one shall be arbitrarily deprived of his nationality.
Convention Related to Status of Refugees, 1951 which has been ratified by
145 countries is the most important international document in this regard.
Convention on reduction of Statelessness, 1961, which lays down detailed
provisions on acquiring and losing of Nationality, has been ratified only by 38
States. This convention also lays down any disputed between stateless
regarding nationality of any person shall be submitted before the ICJ.
UNHCR (UN High Commissioner for Refugees) has also worked hard to solve
this problem. As a result of its efforts, many Tajikistan refugees got
citizenship of Kirgizstan, more than 3lakh Tamilians got citizenship of
Srilanka.
Stateless persons carry Nansen passports while travelling from one to
another.
Human rights Theories
Some theories have been propounded in past to explain the rights of
individual knows as right of mankind, natural rights or human rights. A brief
discussion of the theories is being given below:
1) Natural law theory. - as remarked by Dias no other firmament of legal or
political theory is so bejewelled with stars as that of “Natural Law” for it
has engaged the attention of some of the greatest thinkers of all ages. The
credit of giving birth to natural laws goes to Greek. It engaged the attention
of eminent Greek scholars such Sophocles and Aristotle. After the Greek it
was further developed and elaborated by the Romans. The law of nature is
the expression of what is just against what is merely expedient at a
particular time and place, it is what is reasonable against what is arbitrary,
what is natural against what is convenient and what is for social good
against the personal will. Thus natural law was based on the rational and
reasonable needs of a man’s nature. According to Romans natural law
embodied the elementary principles of justice which were the dictate of
 rights and reason. In other words, those principles were accordance with
nature and were unalterable and eternal. Natural rights theory has
been derived from the natural law theory. The natural rights theory can be
said to be akin or closely associated with modern human rights. John
Locke was the chief exponent of natural rights theory. According to John
Locke, human being existed in a state of nature where men and women
were in a state of freedom, able to determine their actions and also in a
state of equality. Locke further imagined that in such a state of nature, no
one was subjected to the will or authority of another. Subsequently, in
order to avoid certain hazard and inconvenience of the state nature they
entered in to a contract, some sort of social contract, whereby they
mutually agreed to form a community and set up a body of politic. But they
retained certain natural rights, such as, right of life, liberty and property. It
was the duty of the government to respect and protect the natural rights of
its subjects. A government which failed or neglected the said duty would
forfeit its validity and office. However, it may be noted that the concept
of natural law, and so also that natural rights theory underwent changes in
different periods in accordance with times and circumstances.
2) Positivism or the theory of the Authority of State. – The positivism was
in vogue in 18the and 19th centuries. Positivism believed that people would
be bound to obey law if it was created by appropriate legislative authority
of sovereign irrespective of its being reasonable or unreasonable. The
positivists called this law, law positivism i.e. the law which is in fact as,
contrasted with law which ought to be. Bynker shoek was one of the chief
exponents of the positivists school. According to the positivists, the source
of human rights lies in the enactment of a system of with sanctions
attached to it. They emphasise the distinction between is and ought and
citizen natural law theorists for undue emphasis on ought and blurring the
distinction between two. The modern exponent of positivism is HLA Hart.
According to him, there is a distinction between invalidity of law and the
morality of law this is the basic difference between natural rights theory
and positivism theory. According to positivists, a law to be invalid must be
enacted by an appropriate legislative authority. Such a law remains valid,
irrespective of its morality.
3) Marxist theory. - The Marxists do not conceived the rights individuals as
distinct from the rights of the society as whole. According to them, only by
achieving the upliftment of the society or community, the higher freedoms
of individuals can be achieved. Thus in views of this theory even
satisfaction of basic needs of individual are contingent on realization of
 social goals. In their view, notion of individual right is a bourgeois’ illusion.
They regard concepts of law, morality democracy, freedom etc. as
historical categories whose content is determined by the conditions of life
of society or community.
4) Theories based on justice. – John Rawl is the chief exponents of this
theory. According to him justice is the first virtue of social institution. In
his view the role of justice is crucial to the understanding of human rights.
Indeed human rights are an end of justice. The principles of justice provide
a way of assigning rights and duties in the basic institutions of society
co-operation on. The general conception of justice behind the principles of
justice is one of fairness. The concept of fairness throughout in theories
based on justice. The concepts of fairness and justice help to determine all
social primary goals, such is liberty and opportunity, income and wealth
and leases of self-respect which are to be distributed equality unless an
exception is made for the benefit of least forward.
5) Theories based on dignity. The exponents of this theory regard the
protection of human dignity as a paramount objective of social policy.
According to them there are eight interdependent values upon which
human rights depend. They are:
a) Respect
b) Power
c) Enlightenment
d) Well being
e) Health
f) Skill
g) Affection
h) Rectitude
The ultimate goal of the exponents of theories based on dignity is to
ensure a world community in which there is democratic distribution of
values, all available resources to be utilised to the maximum and where
paramount objective of social policy is the protection of human dignity.
The right guaranteed under Art 21 of the Constitution of India includes the
right to lead dignified life.
6) Theories based on equality of respect and concern. This theory was
propounded by Dworkin the basic premises of this theory is that
government must treat all their citizens with equal concern and respect.
Dworkin has affirmed the utilitarian principle that everybody can count, for
one, nobody for more than one. He even advances the idea of state
intervention in order to achieve social welfare.
No single theory can satisfactorily explain present state and
development of human rights. However, the natural rights theory based on
natural seems to be akin to the present concept and development of
human rights. Theory of natural rights along the theories based on justice,
theory based on dignity and theory based on equality of respect and
concern may go a long way to explain the present trend of respect for and
protection of human rights. The above mentioned theories based on
justice and theory based on dignity is based on natural law theory.