Section-A

Very Short Answers

1. Define human rights and their four basic characteristics.

Answer- Human rights are the fundamental rights and freedoms to which every
person is entitled by virtue of being human.

Four basic characteristics:

1. Universal – Apply to all people equally.

2. Inalienable – Cannot be taken away.
3. Indivisible – All rights are equally important.
4. Interdependent – Each right affects the others.

2. What rights are called collective rights?

Answer: To promote and protect fundamental human rights globally.

To prevent atrocities like those committed during World War II.

3. Explain the concept of collective rights with suitable examples.

Answer:
Collective rights are rights held by a group rather than by individuals, aimed at
protecting the interests, identity, and culture of that group.

Examples:

1. Indigenous Rights – The right of tribal communities to preserve their

language, land, and traditions (e.g., Adivasi rights in India).
2. Minority Rights – Religious or linguistic minorities having the right to
establish and manage their own institutions (e.g., Article 30 of the Indian
Constitution).
3. Right to Self-Determination – A community's right to freely choose its
political status (e.g., the Palestinian people's claim to statehood).
4. What is meant by Human Rights Jurisprudence?

Answer:
Human Rights Jurisprudence refers to the body of legal principles, court
decisions, and interpretations that define, expand, and protect human rights under
national and international law.

It includes how courts interpret human rights laws, apply them in specific cases,
and set precedents for future protection of rights.

Example: Supreme Court judgments on the right to privacy or right to life under
Article 21 of the Indian Constitution.

5. Point out difference between Human Rights, Natural Rights and Legal
Rights.

Answer:

Basis Human Rights Natural Rights Legal Rights

International declarations Philosophy and National laws and
Origin
(e.g., UDHR) moral reasoning statutes
Granted and
Nature Universal and inalienable Inherent by birth
enforced by law
Right to equality, freedom, Right to life, liberty, Right to vote,
Examples
education property right to pension
Through Moral force, not
Enforceable
Enforcement national/international always legally
through courts
mechanisms binding
 Section – B

Short Answer

6. Briefly discuss the main problems that hinder the protection of Human
Rights at International Level?

Answer:
Main Problems that Hinder the Protection of Human Rights at the
International Level

The protection of human rights at the international level is one of the most
important goals of global governance. Since the adoption of the Universal
Declaration of Human Rights (UDHR) in 1948, significant progress has been made
in developing legal standards and international mechanisms to safeguard human
rights. However, despite this progress, many problems continue to hinder the
effective protection of these rights worldwide. These challenges arise due to
political, legal, economic, and cultural factors.

Lack of Enforcement Mechanisms

One of the most significant issues is the absence of strong enforcement

mechanisms. Unlike domestic legal systems, where courts and law enforcement
agencies ensure the implementation of rights, international human rights laws often
lack binding power. Organizations like the United Nations Human Rights Council
can investigate and report violations but cannot impose punishments. The
International Criminal Court (ICC) has limited jurisdiction and faces non-
cooperation from some powerful countries.

State Sovereignty

The principle of state sovereignty allows countries to govern without external

interference. While this principle is important for international relations, it
becomes a major obstacle when governments use it to shield themselves from
criticism and intervention over human rights abuses. Many states resist
international scrutiny or action, making it difficult to hold violators accountable.
Political Interests and Selective Enforcement

International human rights enforcement is often influenced by political and

strategic interests. Powerful nations may turn a blind eye to violations by their
allies while condemning those committed by rival states. This selective approach
undermines the credibility and effectiveness of human rights institutions.

Lack of Political Will

Even when there is evidence of violations, many countries are unwilling to take
action due to fear of diplomatic conflict or economic loss. This lack of political
will weakens international responses and allows violators to act with impunity.

Cultural Relativism

The idea of cultural relativism challenges the universality of human rights. Some
countries argue that international human rights standards are based on Western
values and do not align with their cultural or religious traditions. This leads to
resistance against certain rights, especially those related to gender equality and
freedom of expression.

Weak National Implementation

International treaties must be implemented at the national level to be effective.

Many countries, especially developing ones, lack the legal frameworks,
institutions, or resources to enforce human rights properly. Corruption, weak
judiciary, and political instability further weaken protection mechanisms.

Suppression of Civil Society and Media

A free press and active civil society are crucial for promoting and protecting
human rights. However, in many countries, journalists, activists, and NGOs face
censorship, harassment, or legal restrictions. This limits public awareness and
reduces pressure on governments to respect rights.

Conclusion

Despite the global recognition of human rights, their protection at the international
level faces many challenges. To overcome these barriers, stronger enforcement,
genuine political commitment, global cooperation, and respect for universal human
values are essential. Only then can the international community ensure the
effective realization of human rights for all.

7. Point out the basic differences in European and American Convention

on Human Rights.

Answer:

Basic Differences Between the European and American Conventions on

Human Rights

The European Convention on Human Rights (ECHR) and the American

Convention on Human Rights (ACHR) are two major regional human rights
instruments. Both aim to protect fundamental human rights and freedoms, but they
differ in their origins, structures, mechanisms, and scope. Below are the key
differences between the two:

1. Historical and Geographical Context

 ECHR was adopted in 1950 under the framework of the Council of Europe
and is applicable primarily to European countries.
 ACHR, also known as the Pact of San José, was adopted in 1969 under the
Organization of American States (OAS) and applies to countries in North,
Central, and South America.

2. Number of Member States

 The ECHR has 47 member states, including almost all European countries.
 The ACHR has 25 ratifying countries, but some major countries like the
United States and Canada have not ratified it, limiting its reach.

3. Supervisory Bodies

 The European Court of Human Rights (Strasbourg) is the main

enforcement body under the ECHR. Individuals can bring cases directly
against their states.
 The Inter-American Commission on Human Rights and the Inter-
American Court of Human Rights (San José, Costa Rica) are the
supervisory organs under the ACHR. Generally, cases must go through the
Commission before reaching the Court.
4. Direct Access to Court

 Under the ECHR, individuals have direct access to the European Court
after exhausting domestic remedies.
 Under the ACHR, individuals must first go through the Inter-American
Commission, which then decides whether to refer the case to the Court.

5. Scope and Types of Rights

 The ECHR focuses mainly on civil and political rights (e.g., right to life,
freedom from torture, right to a fair trial).
 The ACHR includes civil, political, economic, social, and cultural rights.
It is supplemented by the Protocol of San Salvador, which elaborates on
economic, social, and cultural rights.

6. Binding Nature

 The ECHR is considered stronger in enforcement, as its Court's judgments

are binding and implemented through the Committee of Ministers of the
Council of Europe.
 The ACHR also has binding rulings, but implementation is weaker, and
compliance varies among member states.

7. Reservations and Opt-Outs

 European countries can make limited reservations to the ECHR, provided

they are not inconsistent with the object and purpose of the Convention.
 The ACHR also allows reservations, but countries like the U.S. have signed
but not ratified it, which significantly affects its effectiveness.

Conclusion

While both the ECHR and ACHR are crucial in promoting human rights in their
regions, the ECHR is generally regarded as more effective and accessible due
to its strong enforcement mechanisms and direct access for individuals. The
ACHR has broader scope in terms of rights but faces challenges in
implementation and participation by key countries.
8. Describe the main functions of National Commission for Women in India.
Answer:
Main Functions of the National Commission for Women (NCW) in India

The National Commission for Women (NCW) was established in 1992 under the
National Commission for Women Act, 1990. It serves as the apex national-level
body in India to protect and promote the rights of women and ensure their equality
and empowerment. The NCW plays a crucial role in reviewing legal safeguards,
addressing grievances, and advising the government on policy matters concerning
women.

1. Safeguarding Women’s Rights

One of the primary functions of the NCW is to ensure that the constitutional and
legal rights of women are protected. It reviews the existing laws and suggests
amendments if they are found inadequate or ineffective in protecting women's
rights. For instance, the NCW has recommended changes in laws related to
domestic violence, sexual harassment, and trafficking.

2. Investigation and Inquiry

The Commission has the power to inquire into complaints and take suo moto
notice of matters related to the deprivation of women’s rights, non-implementation
of laws, or failure of policies relating to women's welfare. It can summon
individuals, request documents, and even conduct inspections of prisons, shelter
homes, and remand homes where women are housed.

3. Addressing Complaints and Grievances

The NCW acts as a grievance redressal mechanism. Women from across the
country can directly file complaints with the Commission regarding harassment,
violence, discrimination, or injustice. The NCW then takes up the matter with
concerned authorities, recommends action, and sometimes provides legal or
counseling assistance.

4. Legal and Policy Advocacy

The Commission plays a key role in advocating for policy reforms. It provides
recommendations to the central and state governments on policy matters that affect
women’s status. It also supports the formulation of new policies and schemes
aimed at women’s empowerment, gender equality, and safety.

5. Monitoring and Evaluation

NCW works to monitor the implementation of all laws and policies related to
women’s welfare. It evaluates how effectively these laws are being enforced and
whether they are serving the intended purpose. It also prepares reports and
studies to highlight the challenges and successes in different regions of the
country.

6. Awareness and Education

The Commission undertakes activities to educate women about their rights and
available legal protections. It conducts workshops, seminars, legal awareness
camps, and outreach programs. These initiatives help women, especially in rural
areas, become aware of their rights and the legal avenues available to them.

7. Research and Development

The NCW also sponsors and conducts research on women’s issues to identify
systemic problems and suggest data-backed solutions. These studies help in
understanding socio-economic, legal, and health-related challenges faced by
women and in framing better policies.

Conclusion

The National Commission for Women plays a vital role in safeguarding and
advancing the interests of women in India. Through legal advocacy, grievance
redressal, policy input, and public awareness, it contributes significantly to creating
a more just and gender-equal society. Strengthening its powers and resources can
further enhance its effectiveness in fulfilling its mandate.
 Section – C

Long Answer Questions

9. Discuss the Human Rights Provision under UN Charter .

Answer: Human Rights Provisions under the UN Charter

The United Nations (UN) was established in 1945 with the primary goal of
maintaining international peace and security. However, one of its foundational
pillars is also the promotion and protection of human rights. The UN Charter,
which is the founding document of the organization, contains various provisions
that lay the groundwork for international human rights law. Although the Charter
does not provide a detailed list of human rights, it sets the principles, objectives,
and framework that guide the international community in developing and
upholding human rights standards.

Introduction to the UN Charter

The UN Charter was signed on 26 June 1945 in San Francisco and came into force
on 24 October 1945. It consists of a Preamble and 19 Chapters containing 111
Articles. It is legally binding on all member states and serves as the constitutional
basis for all UN bodies and their actions. The Charter does not contain an
exhaustive list of human rights, but it affirms the importance of respecting and
promoting human rights and fundamental freedoms.

Preamble of the UN Charter and Human Rights

The Preamble of the UN Charter sets the tone for the entire document. It reflects
the determination of the peoples of the United Nations:

"to reaffirm faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women and of nations large and
small."
This strong commitment laid the ideological foundation for future human rights
declarations and treaties, including the Universal Declaration of Human Rights
(UDHR) in 1948.

Main Provisions Related to Human Rights in the UN Charter

The Charter contains several Articles that either directly or indirectly relate to the
protection and promotion of human rights. These can be found in various chapters
and involve different organs of the United Nations.

1. Article 1 – Purposes of the United Nations

2. Article 13 – General Assembly’s Functions

3. Article 55 – Promotion of Universal Rights

4. Article 56 – Obligation of Member States

5. Article 62 – Role of the Economic and Social Council (ECOSOC)

6. Article 68 – Establishment of Human Rights Commissions

7. Articles 73 and 76 – Human Rights in Non-Self-Governing Territories

Significance of Human Rights Provisions in the UN Charter

The Charter, though not a human rights treaty, became the first international legal
instrument to affirm the importance of human rights on a global scale. Its
provisions:

 Laid the foundation for international human rights law.

 Inspired the adoption of landmark documents like the UDHR (1948), ICCPR
(1966), and ICESCR (1966).
 Encouraged the formation of UN bodies dedicated to rights, such as
UNHRC, OHCHR, and various treaty bodies.

Limitations of the UN Charter’s Human Rights Provisions

Despite its contributions, the Charter has some limitations:

1. Lack of Specificity: It does not list or define human rights in detail.

 2. Non-enforceability: The provisions are largely declaratory and aspirational,
without mechanisms for enforcement.
3. State Sovereignty: The Charter emphasizes non-interference in domestic
affairs (Article 2(7)), which can limit international action against human
rights abuses.
4. Political Challenges: Implementation depends on the political will of
member states and cooperation among powerful nations, often leading to
selective enforcement.

Conclusion

The UN Charter serves as the cornerstone of the international human rights system.
Though general in its language, it reflects a universal commitment to uphold the
dignity, equality, and freedom of all people. The Charter has provided the legal and
moral foundation for numerous human rights treaties, institutions, and enforcement
mechanisms developed over the years. While it may lack detailed rights and
enforcement tools, its principles continue to guide the global effort to protect
human rights and promote international peace, security, and justice.

10. Critically discuss ICCPR along with two protocols. Is India signatory to above
covenant and its protocols.

Answer:
International Covenant on Civil and Political Rights (ICCPR) and Its
Protocols

The International Covenant on Civil and Political Rights (ICCPR) is one of the
two key treaties that form the foundation of international human rights law, the
other being the International Covenant on Economic, Social, and Cultural Rights
(ICESCR). Adopted by the United Nations General Assembly in 1966, the ICCPR
aims to protect individuals from state abuses and ensure the protection of civil and
political rights worldwide. The treaty seeks to uphold fundamental freedoms such
as the right to life, liberty, freedom of expression, and the right to participate in
public life.

In addition to the Covenant itself, there are two Optional Protocols that provide
further mechanisms for protecting and enforcing the rights guaranteed under the
ICCPR.

1. The ICCPR: Key Provisions

The ICCPR encompasses a wide array of civil and political rights, including:

 Right to life (Article 6): It ensures that no one shall be deprived of life
arbitrarily, thus prohibiting extrajudicial executions.
 Freedom from torture and cruel, inhuman, or degrading treatment
(Article 7): This provision prohibits any form of torture or ill-treatment by
state authorities.
 Freedom of thought, conscience, and religion (Article 18): This article
guarantees individuals the right to freely practice and express their religion
or beliefs.
 Freedom of expression (Article 19): It protects the right to freely express
opinions and ideas, with reasonable restrictions for public order and national
security.
 Right to a fair trial (Article 14): This ensures individuals receive a fair and
public hearing by a competent, independent, and impartial tribunal.
 Freedom of assembly and association (Article 21 and 22): It protects the
right to peacefully assemble and form associations.
 Right to participate in public affairs (Article 25): This includes the right
to vote and take part in the conduct of public affairs.
 Equality before the law (Article 26): This prohibits discrimination based on
race, sex, religion, language, and other grounds.

2. Criticism of the ICCPR

While the ICCPR represents a monumental achievement in international human

rights law, it has faced criticisms over the years:

a. Ambiguity in the Limitations

One of the major criticisms of the ICCPR lies in the broad exceptions and
limitations provided for in the Covenant. Several rights, such as the right to
freedom of expression and the right to freedom of assembly, can be limited for
reasons of national security, public order, or the protection of public health or
morals (Article 19 and Article 21). The vagueness of these limitations leaves
room for potential abuse, as governments may use these justifications to suppress
dissent and restrict fundamental freedoms.
b. Lack of Clear Enforcement Mechanisms

While the ICCPR sets forth essential rights and freedoms, enforcement
mechanisms remain weak. The Committee on Human Rights, which monitors
compliance with the Covenant, can only issue recommendations, which are non-
binding. This limits the effectiveness of the Covenant in compelling states to
respect and uphold their obligations.

c. Reservations and Non-Ratification

Another criticism of the ICCPR is the prevalence of reservations by state parties.

Many countries have entered reservations to specific provisions, such as Article 20
(prohibition of war propaganda and advocacy of national, racial, or religious
hatred) or provisions related to the death penalty. This undermines the universality
of the Covenant and the protection of civil and political rights for all individuals.

3. The Two Optional Protocols

The ICCPR is complemented by two Optional Protocols, which provide additional

safeguards for individuals under the jurisdiction of state parties.

a. The First Optional Protocol (1966)

The First Optional Protocol allows individuals to file complaints with the
United Nations Human Rights Committee (HRC) if they believe their rights
under the ICCPR have been violated, provided the state involved has accepted this
procedure. This is a significant development as it allows for individual
complaints to be heard at the international level, offering a mechanism for justice
when domestic remedies have been exhausted.

However, the First Optional Protocol has faced criticism, particularly concerning
accessibility. The procedure can be lengthy and complex, often requiring legal
representation. Moreover, only states that ratify the protocol are bound to accept
individual communications, and many countries, particularly those with poor
human rights records, have not ratified it.

b. The Second Optional Protocol (1989)

The Second Optional Protocol aims to abolish the death penalty. It prohibits
state parties from executing individuals under any circumstances, effectively
making abolition a legal obligation for countries that ratify the protocol. By
ratifying this protocol, states commit to not only eliminating the death penalty
within their own jurisdiction but also ensuring that it is not used by other states
under their control (e.g., in occupied territories).

While the Second Optional Protocol is a critical step toward the global abolition of
the death penalty, implementation has been uneven. Some countries that have
ratified the protocol continue to impose the death penalty in certain circumstances
or in their territories. The challenge, therefore, remains in ensuring full abolition
globally.

4. Is India a Signatory to the ICCPR and Its Protocols?

India ratified the ICCPR in 1979, demonstrating its commitment to protecting

civil and political rights. However, India has made several reservations on specific
provisions. For instance, India has expressed reservations regarding Article 6 (the
abolition of the death penalty), allowing the continued use of capital punishment
in certain cases. Similarly, it has made reservations about the right to self-
determination and limitations on freedom of expression related to national
security.

Regarding the Optional Protocols, India has not ratified the First Optional
Protocol, which means that Indian citizens cannot directly approach the UN
Human Rights Committee with complaints regarding violations of civil and
political rights. Additionally, India has not ratified the Second Optional
Protocol, maintaining the use of the death penalty.

India’s stance on these issues is based on its legal and cultural context, including
its belief in the necessity of the death penalty for certain crimes and its concern
over the national security implications of unrestricted freedom of expression.

5. Conclusion

The ICCPR remains a landmark treaty in the promotion and protection of civil and
political rights globally, setting minimum standards for the treatment of individuals
under the jurisdiction of state parties. However, its impact is undermined by broad
limitations, weak enforcement mechanisms, and reservations by state parties,
which dilute the universality of its provisions.
The two Optional Protocols further enhance the ICCPR’s effectiveness by
providing mechanisms for individual complaints and the abolition of the death
penalty. However, challenges related to implementation and accessibility persist.

India’s ratification of the ICCPR, with its reservations, reflects its complex
balancing of international human rights norms with its domestic priorities. While
India has made strides in some areas of human rights protection, its stance on
issues such as the death penalty and its reluctance to ratify the Optional Protocols
indicate that there are still significant gaps in fulfilling its human rights obligations
under the Covenant.

India’s full engagement with the ICCPR and its protocols would represent a more
comprehensive commitment to civil and political rights, but this requires
overcoming political, legal, and ideological barriers that continue to shape the
country’s human rights policies.

11. Discuss the constitution and powers and functions of NHRC in India.

Answer:
Constitution, Powers, and Functions of the National Human Rights
Commission (NHRC) in India

The National Human Rights Commission (NHRC) of India is a statutory body

established to protect and promote human rights in the country. It was created
under the Protection of Human Rights Act, 1993. The NHRC plays a critical role
in safeguarding human rights by investigating violations, recommending actions,
and advising the government on necessary legal reforms. This essay discusses the
constitution, powers, and functions of the NHRC in India in detail.

1. Constitution of the NHRC

The NHRC was constituted with the purpose of monitoring human rights in India
and addressing violations or non-compliance with constitutional and legal
provisions. According to Section 3 of the Protection of Human Rights Act, 1993,
the NHRC consists of:

1. A Chairperson – The Chairperson must be a retired Chief Justice of India

or a person qualified to be appointed as the Chief Justice of India.
2. One Member – A person who has been a judge of the Supreme Court of
India or has expertise in the protection of human rights.
 3. Two Members – These members must be persons who are, or have been,
qualified to be appointed as judges of a High Court or have expertise in
human rights issues.

In addition to these key members, the NHRC has a Secretary-General and a staff
who assist in the functioning of the Commission.

The President of India appoints the Chairperson and Members, who hold office for
a term of 3 years and are eligible for reappointment. The NHRC operates
independently, ensuring that its decisions are not influenced by political or
governmental pressures.

2. Powers of the NHRC

The NHRC is vested with specific powers to fulfill its duties related to human
rights protection. These powers are crucial in ensuring its effectiveness in
investigating, reporting, and recommending measures for upholding human rights
in India. The key powers of the NHRC include:

1. Investigative Powers:
o The NHRC has the power to inquire into complaints or take suo-
motu notice of human rights violations. It can investigate complaints
of human rights abuses, especially by public authorities, and intervene
in cases of violation of fundamental rights.
o The NHRC can call for reports from the government, issue
summons, and direct authorities to produce evidence related to the
case being investigated.
2. Recommendation Powers:
o The NHRC can recommend actions to be taken by the government,
police, or other authorities to redress violations of human rights.
o These recommendations may involve compensation to victims, the
framing of policies for the protection of rights, or improvements in
state practices to prevent future violations.
3. Power to Visit Places of Detention:
o The NHRC has the power to visit any prison, detention center, or
psychiatric institution where persons are deprived of their liberty to
examine the conditions and ensure they are in line with human rights
standards.
o The Commission can make recommendations to improve conditions
in such places and ensure the welfare of detainees.
 4. Subpoena Power:
o The NHRC can summon individuals, call for documents, and require
the attendance of witnesses during investigations.
5. Human Rights Education:
o The Commission has the power to promote human rights education
and raise awareness about human rights issues among the public.
6. Intervention in Courts:
o The NHRC can intervene in cases involving human rights violations
before the courts of law. This power is significant in cases where
human rights concerns are of national importance or have broader
implications for society.
7. Power to Take Suo-Motu Action:
o The NHRC has the authority to take suo-motu action, meaning it can
initiate inquiries or investigations on its own without waiting for a
formal complaint or referral.

3. Functions of the NHRC

The NHRC performs various functions in line with its mandate to protect and
promote human rights in India. The major functions of the NHRC are as follows:

1. Investigating Human Rights Violations:

o The NHRC investigates complaints of human rights violations,
especially those involving custodial deaths, torture, discrimination,
and violence. These investigations can be triggered by complaints or
by the NHRC’s own initiative (suo-motu action). The Commission
examines whether the government, law enforcement agencies, or other
authorities are responsible for violations.
o The NHRC has an obligation to examine complaints of human rights
violations caused by public officials, police, and other state actors.
2. Recommending Remedial Measures:
o After investigating cases, the NHRC recommends appropriate
remedial measures to the concerned authorities. These could include
prosecution of perpetrators, compensation for victims, and reforms in
state policies to prevent future violations.
o In cases where victims of human rights violations are unable to pursue
legal action on their own, the NHRC may also recommend financial
compensation or legal assistance.
3. Promoting Human Rights Awareness:
 o The NHRC is responsible for promoting awareness of human rights
among the people of India. It organizes awareness campaigns,
seminars, and conferences to educate citizens about their fundamental
rights and the avenues available for seeking justice.
o The Commission also collaborates with educational institutions to
integrate human rights education into school and university curricula.
4. Advising the Government on Legislation and Policies:
o The NHRC serves as an advisory body to the central and state
governments on matters relating to human rights. It recommends
amendments to laws that are not in line with international human
rights standards or that are inadequate in addressing specific human
rights concerns.
o The Commission also advises on the formulation of policies that
promote human rights and suggests measures to prevent violations.
5. Human Rights Research and Reports:
o The NHRC conducts research on various human rights issues, such
as gender equality, rights of children, and social justice. It prepares
annual reports on the state of human rights in the country, which are
submitted to the President of India.
o These reports often include recommendations for improving the
human rights situation in India and provide a comprehensive view of
the issues affecting different sections of society.
6. Monitoring and Reviewing Human Rights Institutions:
o The NHRC monitors the functioning of state-level human rights
commissions to ensure that they are performing their duties
effectively.
o It ensures that these commissions remain aligned with national human
rights standards and are fulfilling their mandates.
7. Coordination with International Bodies:
o The NHRC also coordinates with international human rights
organizations and adheres to global human rights standards. It
represents India in global forums related to human rights and plays a
role in shaping India’s position on international human rights matters.

4. Conclusion

The National Human Rights Commission (NHRC) plays a vital role in

safeguarding human rights in India. Through its investigative, advisory, and
educational functions, the NHRC addresses human rights violations, advocates for
policy changes, and promotes awareness about the rights of citizens. However, the
NHRC’s effectiveness is often constrained by challenges such as lack of
enforcement power, resource limitations, and political resistance. Despite these
challenges, the NHRC remains a crucial institution in the protection and promotion
of human rights in India, working towards creating a society that upholds the
dignity and rights of every individual.

12. Briefly describe the main provisions of "American Convention on Human

Rights" . Is it more effective than European Convention on Human Rights?

Answer:

Main Provisions of the American Convention on Human Rights and Its

Effectiveness Compared to the European Convention on Human Rights

The American Convention on Human Rights (ACHR), also known as the Pact
of San José, was adopted on November 22, 1969, by the Organization of
American States (OAS). It serves as a key regional human rights instrument for
the protection and promotion of human rights in the Americas. It aims to ensure the
civil, political, economic, social, and cultural rights of individuals in the OAS
member states. The European Convention on Human Rights (ECHR), which
predates the ACHR by over two decades, is another major regional human rights
treaty, protecting the rights of individuals in European countries. This essay will
describe the main provisions of the ACHR and analyze whether it is more effective
than the ECHR.

Main Provisions of the American Convention on Human Rights

The American Convention on Human Rights is divided into several chapters that
lay out specific rights and mechanisms for protection and enforcement. Below are
the key provisions:

1. The Rights Guaranteed

The ACHR guarantees a broad range of civil, political, economic, and social rights,
divided into the following categories:

 Civil and Political Rights:

o Right to Life (Article 4): The right to life is absolute, and no one can
be arbitrarily deprived of life, except in certain cases such as death
sentences for serious crimes.
 o Right to Personal Liberty (Article 7): Everyone has the right to
personal freedom and security, and any detention must be in
accordance with the law.
o Right to Fair Trial (Article 8): The Convention guarantees fair trial
standards, including the right to be heard by an independent and
impartial tribunal.
o Freedom of Thought, Conscience, and Religion (Article 12):
Individuals have the freedom to practice their religion and hold
opinions without interference.
o Freedom of Expression (Article 13): This includes the right to seek,
receive, and impart information and ideas, subject to reasonable
restrictions.
 Economic, Social, and Cultural Rights:
o Right to Work (Article 6): Everyone has the right to work under just
and favorable conditions.
o Right to Education (Article 26): The Convention ensures the right to
education and the state's obligation to progressively provide accessible
and quality education.
o Right to Health (Article 10): States must provide conditions that
allow individuals to access adequate healthcare.
 Special Protection for Vulnerable Groups:
o Rights of Women (Article 17): The Convention provides specific
protection against discrimination and guarantees equality for women.
o Rights of Children (Article 19): The ACHR acknowledges the
special rights of children, emphasizing their protection from abuse,
exploitation, and neglect.

2. The Inter-American Commission on Human Rights (IACHR)

One of the key mechanisms for the enforcement of the ACHR is the Inter-
American Commission on Human Rights (IACHR). The IACHR is an
autonomous body within the OAS that has the mandate to:

 Monitor the human rights situation in OAS member states.

 Receive individual complaints regarding violations of the ACHR,
investigate, and recommend remedial actions.
 Issue reports and statements to promote awareness and raise concerns
about human rights violations.
 Conduct on-site visits to investigate human rights situations within member
states.
The IACHR has the authority to bring cases before the Inter-American Court of
Human Rights (IACtHR), which issues binding judgments.

3. The Inter-American Court of Human Rights (IACtHR)

The Inter-American Court of Human Rights is a permanent tribunal that

enforces the rights guaranteed by the ACHR. It:

 Hears cases brought by the Commission or states, and issues binding

judgments.
 Interprets the provisions of the ACHR, and its rulings have a significant
influence on the development of human rights jurisprudence in the
Americas.
 Advisory Jurisdiction: The Court can also issue advisory opinions at the
request of member states or the Commission on matters related to the
interpretation of the ACHR.

4. The Obligation of States

The ACHR binds its member states to uphold human rights, and it establishes
certain obligations on states:

 Respect for Rights (Article 1): States must respect and ensure the rights and
freedoms enshrined in the Convention.
 Non-Discrimination (Article 1): The rights guaranteed by the ACHR must
be exercised without discrimination based on race, gender, religion, or other
factors.
 Duty to Prevent Violations: States must take measures to prevent human
rights violations within their jurisdiction.

Is the American Convention on Human Rights More Effective than the

European Convention on Human Rights?

The effectiveness of the ACHR compared to the European Convention on

Human Rights (ECHR) largely depends on how the enforcement mechanisms,
scope, and regional contexts play out. Both treaties offer significant protections but
are shaped by their regional circumstances.
1. Enforcement Mechanisms

 ECHR: The European Court of Human Rights (ECtHR) has a significant

advantage over the IACHR in terms of its jurisdiction and reach. The
ECtHR hears individual complaints from citizens of the 47 member states of
the Council of Europe, and its judgments are binding on those countries. It
has a robust enforcement mechanism, as non-compliance can lead to
sanctions or actions by the Committee of Ministers of the Council of Europe.
 ACHR: The IACtHR has a similar role but faces challenges due to state
resistance and the lack of compulsory compliance from some countries.
While its judgments are binding on member states, the political will to
enforce them is often weaker in the Americas. Additionally, the ACHR’s
enforcement mechanisms are not as universally respected as the ECHR's.

2. Scope of Protection

 ECHR: The ECHR is seen as having a broader and more comprehensive

approach to human rights protections, particularly because it covers all areas
of human rights, including social, cultural, and economic rights. The Court
has developed extensive case law on various issues, ranging from privacy to
freedom of expression, setting important precedents.
 ACHR: The ACHR also covers civil, political, and economic rights, but
there is often a stronger emphasis on the protection of vulnerable groups,
such as women and children, in comparison to the ECHR. The IACtHR has
issued several landmark rulings regarding the rights of indigenous peoples,
as well as on issues such as forced disappearances and the right to truth.

3. Regional Context

 ECHR: Europe’s higher level of political stability, greater institutional

capacity, and commitment to human rights make the ECHR more effective
in terms of implementation. Member states generally have strong judicial
systems and greater respect for human rights.
 ACHR: In contrast, many OAS member states are still developing and face
challenges such as political instability, widespread corruption, and social
inequality, which weaken the effectiveness of the ACHR. Some
governments in the Americas have historically shown reluctance to fully
implement the judgments of the IACtHR, particularly when they perceive
the rulings as interfering with national sovereignty.
 4. Cultural and Political Resistance

 ECHR: European countries generally show more political and cultural

commitment to human rights. There is widespread acceptance of the
ECHR’s standards, and the ECtHR often works with the European Union to
enforce its decisions.
 ACHR: In the Americas, there is more political resistance to external
scrutiny, and countries like the United States and Canada have not ratified
certain provisions of the ACHR or have opted out of certain binding
commitments, which weakens the overall enforcement of the Convention.

Conclusion

While both the American Convention on Human Rights and the European
Convention on Human Rights provide comprehensive frameworks for the
protection of human rights, the ECHR is generally considered more effective due
to its stronger enforcement mechanisms, greater political will among European
states, and broader scope. In contrast, the ACHR, although a significant regional
human rights instrument, faces greater challenges related to political resistance,
enforcement difficulties, and state sovereignty concerns in the Americas.
Nonetheless, the ACHR plays a crucial role in promoting human rights in the
Americas, especially in areas related to the rights of vulnerable groups .

12. The Indian Higher Judiciary has contributed significantly to the protection
of Human Rights of Citizens by adopting inclusive Human Rights
Jurisprudential approach in its decisions. Critically elaborate citing relevant
case laws.

Answer : The Contribution of the Indian Higher Judiciary to the Protection of

Human Rights

The Indian higher judiciary, particularly the Supreme Court of India, has played a
pivotal role in the protection of human rights over the years. Its judgments have
consistently reflected an inclusive and expansive approach to human rights
jurisprudence, ensuring that fundamental rights are not only preserved but also
extended to include marginalized and vulnerable groups. By interpreting the
Constitution and statutory laws creatively, the judiciary has significantly
contributed to the evolution of human rights law in India.
This paper critically elaborates on how the Indian judiciary has safeguarded human
rights through progressive interpretations, citing relevant case laws, and also
highlights the challenges and limitations that still persist in this field.

1. Judicial Interpretation of Fundamental Rights

The Indian Constitution guarantees fundamental rights under Part III. However, it
was not until the judiciary's intervention that these rights were made accessible and
applicable in a wide variety of circumstances. The Supreme Court of India, in
particular, has interpreted these rights in a way that has expanded their scope to
encompass several issues relating to human dignity, equality, and freedom.

Case Law: Maneka Gandhi v. Union of India (1978)

One of the landmark cases that reflect the judicial commitment to human rights is
Maneka Gandhi v. Union of India (1978). In this case, the Supreme Court
expanded the scope of Article 21 (Right to Life and Personal Liberty) to include
the right to live with dignity. It held that the procedure established by law, under
Article 21, must be just, fair, and reasonable. This judgment is significant as it
moved beyond a narrow interpretation of individual rights to a more inclusive
perspective, where the court recognized the connection between personal liberty
and broader human rights concerns.

2. Expanding the Scope of Right to Life (Article 21)

The Right to Life under Article 21 of the Indian Constitution has been the
cornerstone of judicial activism in protecting human rights. The judiciary has
interpreted this right expansively, ensuring that it covers not only the physical
existence of individuals but also their social, cultural, and economic well-being.

Case Law: Francis Coralie Mullin v. The Administrator, Union Territory of

Delhi (1981)

In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi

(1981), the Supreme Court interpreted the Right to Life under Article 21 to include
the right to live with human dignity. The Court held that this encompasses the right
to shelter, the right to health, and the right to livelihood, laying the foundation for
inclusive human rights jurisprudence.
Case Law: Olga Tellis v. Bombay Municipal Corporation (1985)

The Court further extended the scope of Article 21 in Olga Tellis v. Bombay
Municipal Corporation (1985), where it held that the right to livelihood is part of
the right to life under Article 21. The Court held that the eviction of slum dwellers
without providing alternative accommodation or rehabilitation violated their
fundamental rights, recognizing the dignity of life for the urban poor.

3. Expanding the Scope of Fundamental Rights Beyond Citizens

One of the important aspects of Indian human rights jurisprudence is that the
Supreme Court has interpreted fundamental rights to include non-citizens and
groups who were previously marginalized or excluded from the ambit of rights
protection.

Case Law: Khudiram v. Union of India (1959)

The Supreme Court in Khudiram v. Union of India (1959) held that the
provisions of fundamental rights extend not only to citizens but also to all persons,
irrespective of their nationality. This decision highlighted that the human rights
protections enshrined in the Constitution are applicable to all human beings
residing in India, regardless of their citizenship status, thus reinforcing the
inclusivity of India’s human rights jurisprudence.

4. Protection of Social and Economic Rights

Indian higher judiciary has not limited its role to civil and political rights alone but
has consistently emphasized social, economic, and cultural rights as well. The
judiciary’s approach has been characterized by a pragmatic view of human rights
that includes access to education, health, and employment as essential human
rights.

Case Law: Unni Krishnan J.P. v. State of Andhra Pradesh (1993)

In Unni Krishnan J.P. v. State of Andhra Pradesh (1993), the Supreme Court
recognized that the right to education is an essential part of the right to life under
Article 21. This judgment contributed significantly to the framing of policies
aimed at providing free and compulsory education to children. The court
emphasized that access to education is a fundamental human right and an
important step toward the realization of socio-economic justice.
5. Protection of the Rights of Vulnerable Groups

The Indian judiciary has been particularly proactive in protecting the rights of
vulnerable and marginalized groups, including women, children, and minority
communities. This has been an integral part of India’s human rights jurisprudence.

Case Law: Vishakha v. State of Rajasthan (1997)

In Vishakha v. State of Rajasthan (1997), the Supreme Court took suo motu
cognizance of the issue of sexual harassment at the workplace and laid down the
Vishakha Guidelines, which mandated the creation of a mechanism for redressing
complaints of sexual harassment. These guidelines were a significant step in
ensuring the protection of women’s rights at the workplace and became the basis
for the Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013.

Case Law: National Legal Services Authority v. Union of India (2014)

In National Legal Services Authority v. Union of India (2014), the Supreme

Court recognized the rights of transgender persons as a third gender, granting
them equal rights to education, employment, and healthcare. This case marked a
significant departure from the traditional understanding of gender and opened up
avenues for legal recognition and protection for the transgender community in
India.

6. Human Rights and Environmental Protection

The Indian judiciary has also integrated environmental rights with human rights,
recognizing the right to a healthy environment as part of the right to life under
Article 21.

Case Law: M.C. Mehta v. Union of India (1987)

In M.C. Mehta v. Union of India (1987), the Supreme Court recognized the right
to a clean and healthy environment as part of the fundamental right to life under
Article 21. This judgment established the principle that environmental protection is
essential for the well-being and dignity of human life.

7. Judicial Overreach and Criticism

While the Indian judiciary has made significant strides in human rights protection,
it has not been without criticism. Some scholars and politicians argue that the
judiciary’s activism borders on judicial overreach. The critique is that the
judiciary, in some cases, goes beyond its mandate and interferes in policy matters
better left to the executive and legislature. Critics argue that this disrupts the
balance of power between the three branches of government and can lead to
political ramifications.

Conclusion

The Indian higher judiciary has been instrumental in shaping an inclusive human
rights jurisprudence. Its progressive interpretations of the Constitution have
ensured that the fundamental rights of citizens are not just protected but extended
to vulnerable and marginalized communities. Through landmark cases, the
judiciary has ensured that human dignity, equality, and social justice are
safeguarded, thereby contributing significantly to the protection of human rights in
India.

However, there remain challenges related to judicial overreach and the limitations
of judicial activism in certain instances. Despite these challenges, the role of the
judiciary in promoting human rights cannot be overstated. It has, and continues to,
significantly contribute to creating an environment where the rights of all
individuals are respected and protected.