Theories and Perspectives

in Criminal Justice UNIT 10 HUMAN RIGHTS APPROACHES

Structure
10.1 Introduction
10.2 Objectives
10.3 Definition
10.4 Universality of Human Rights
10.5 Human Rights Debates and Approaches
10.6 Why are Human Rights Important?
10.7 Human Rights — International and Domestic Law
10.8 Enforceable Human Rights in the Constitution and Law
10.9 Directive Principles of State Policy and the Practice of Welfare State Model
10.10 The Embodiment of Human Rights in India
10.11 Authorities with Human Rights Jurisdiction
10.12 National Human Rights Commission
10.13 State Human Rights Commissions (SHRCs)
10.14 Summary
10.15 Terminal Questions
10.16 Answers and Hints
10.17 References and Suggested Readings

10.1 INTRODUCTION
The concept of human rights has two basic meanings. The first refers to the
inherent and inalienable rights due to man/woman simply by virtue of his/her
existence as a human being. These are moral rights, and they aim at ensuring his/
her dignity as a human being. The second sense is that of legal rights which are
established through the law-creating processes of societies, both national and
international. It is generally believed that the state is the guarantor and protector
of human rights. Human rights, as the term is most commonly used, are the
rights which every human being is entitled to enjoy and to have protected. The
underlying idea of such rights - fundamental principles that should be respected
in the treatment of all men, women and children exists in some forms in all
cultures and societies.

Human rights are not the gift or bounty of any political superior. The laws are
meant to reaffirm and recognise human rights and to provide mechanisms for
their enforcement. The upholding of rights is essential for maintaining human
dignity. Louis Henkin regarded rights as ‘claims’ rather than appeals to charity.
Ronald Dworkin regards them as ‘trumps’ that set limits on state action whenever
it encroached upon individual liberty. Jack Donnely pointed out that human rights
are the new standard of civilization. ‘All human rights for all’ is the goal of the
century and the aim is to ensure that human rights are universally accepted and
respected. The seven essential freedoms are:

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• Freedom from discrimination – by gender, race, ethnicity, national origin or Human Rights Approaches
religion;
• Freedom from want – to enjoy a decent standard of living;
• Freedom to develop and realise one’s human potential;
• Freedom from fear – of threats to personal security, from torture, arbitrary
arrest and other violent acts;
• Freedom from injustice and violations of the rule of law;
• Freedom of thought and speech and to participate in decision-making and
form associations; and
• Freedom from decent work without exploitation.
Human rights are indivisible, inter-dependent and inter-related having a clear
linkage with human development; and both share a common vision with a
common purpose. The emphasis on human dignity is laid in the Charter of the
United Nations (UN Charter), Universal Declaration of Human Rights (UDHR)
and several international covenants. Same is the emphasis in the Constitution of
India which assures dignity of the individual as a core value in its Preamble. The
Constitution of India was drafted nearly at the same time as the UDHR and
contains similar provisions. Part-Ill of the Constitution containing the fundamental
rights correspond to Articles 21 of the UDHR and the Directive Principles of
State Policy in Part- IV of the Constitution correspond to Articles 22-28 of the
UDHR. The International Convent on Civil and Political Rights (ICCPR) and
International Convent on Economic, Social and Cultural Rights (ICESCR), both
of 1966 are a further elabouration of these rights.

10.2 OBJECTIVES
After reading this unit, you should be able to:
• understand concept, meaning and definition of Human Rights;
• known Universality of Human Rights;
• locate Human Rights Debates and Approaches;
• know wy Human Rights are important?;
• know enforceable Human Rights in the Constitutional Law;
• know the Authorities with Human Rights Jurisdiction; and
• make a Critique of Human Rights Commissions.

10.3 DEFINITION
According to Section 2(d) of the Protection of Human Rights Act (PHRA), 1993,
human rights are defined as under: Human rights means the rights relating to
life, liberty, equality and dignity of the individual guaranteed by the Constitution
or embodied in the International covenants and enforcement by courts in India.

The words “International Covenants” occurring in this definition mean, as per

Section 2(f) of the Act, the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights adopted
by the UN General Assembly on 16th December 1963 . It is well known that
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Theories and Perspectives these two Covenants were adopted by the UN General Assembly with a view to
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provide legal enforceability to various rights embodied in the Universal
Declaration on Human Rights adopted by the UN General Assembly on 10th
December 1948. It is therefore apparent that the Parliament, while enacting the
Act, wanted to protect not only fundamental rights enshrined in the Constitution
but also civil, political, economic, social and cultural rights embodied in the two
covenants to the extent that they were enforceable through law courts and hence
treats all of them as “Human Rights”. This may indicate that the definition is
comprehensive and would include all rights that may be necessary to make life
meaningful, complete and worth living. It also indicates that liberty, equality
and dignity are basic human rights necessary to make life meaningful and
complete.

Since human rights are enumerated / elabourated not only in the two covenants,
but through many more Conventions and treaties that India is a party to, the
definition of human rights, stated in PHRA, ought to be broadened to include
the development of human rights through conventions and treaties beyond 1966
when the two covenants came into force. This is more so as some human rights
have been developed subsequent to 1966, and whose recognition is imperative.
The rights of the disabled, resulting in the Convention on the Rights of Persons
with Disabilities, 2007, ratified by India, is a case in point.

10.4 UNIVERSALITY OF HUMAN RIGHTS

The conventional wisdom has been that human rights are indivisible, meaning
that respect for civil and political rights cannot be divorced from the enjoyment
of economic, social and cultural Rights. Expressed the other way round, authentic
economic and social development cannot exist without the political freedom to
participate in that process, including the freedom to dissent.

Vienna Declaration, 1993 reaffirmed the universality of human rights. ‘The

universal nature of these rights is beyond question,’ says the final Declaration.
The entire spectrum of human rights was endorsed without division. All human
rights are universal, indivisible, and interdependent and interrelated’ the
Declaration says. Human rights were reaffirmed as including both civil and
political rights and the broader range of economic, social and cultural rights, as
well as the right to development. This full conception recognises, in the words
of the Final Declaration, that ‘the human person is the centre subject of
development’.

Universality of human rights is the ideological basis of the development

perspective. Recognising the primacy of individual rights and entitlements, it
maintains that the State has ultimate responsibility to build a social, economic
and political environment in which all human beings, irrespective of their age,
class, gender, caste, race, ethnicity, legal and political status, are able to fully
enjoy their rights. Hence, it demands an interventionist state and an active civil
society willing to intervene in situations of injustice and violation of rights. The
market and the private sector have responsibility in defending and honouring the
rights of the people. Grassroots organisations, peoples’ movements and human
rights activists lead its current thinking and practice.

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 Human Rights Approaches
10.5 HUMAN RIGHTS DEBATES AND
APPROACHES
How are human rights defined? The traditional view limits them to civil and
political rights. Included among these are the right to life, liberty and security;
the right not to be discriminated against on the basis of race, colour, sex, language,
religion, social class or political opinion; the right to vote, freedom of speech
and freedom of press; the right to be free from arbitrary invasion of privacy,
family or home; and legal rights such as the right to due process of law and the
presumption of innocence until proven guilty.

Increasingly, however, this traditional view is being challenged. Some say that it
is too limited in scope and that a more multi-dimensional and holistic approach
must be taken. Thus to basic civil and political rights are added crucial social,
economic and cultural rights, including the right to an adequate standard of living,
the right to education, the right to work and to equal pay for equal work, and the
right of minorities to enjoy their own culture, religion and language. Of particular
importance to this view is the protection and advancement of the rights of
disadvantaged and minority groups (such as women, children and indigenous
peoples). The United Nations (UN) has adopted this holistic approach in
determining what human rights are, and the international community has
repeatedly affirmed the interdependence of both sets of rights.

What is the best way to ensure the progressive realisation of human rights?
Progressive realisation of rights indicates that all human rights are fundamental
in the governance in the country and the State is supposed to facilitate realisation
of these rights through appropriate legislative measures. One way is the “violations
approach”, whereby human rights are closely monitored to publicize abuses and
hold States accountable for upholding the law and implementing their
international human rights commitments. The second way, which can often
complement the first, emphasizes a comprehensive view of human rights, stressing
both the protection and promotion of rights. Thus, while ensuring that the rule
and enforcement of law are crucial, so too are adopting measures that enable
people to exercise their rights under the law. For example, promoting women’s
rights means not only changing and enforcing legal codes on gender equality
and property rights, but also increasing women’s access to para-legal services
and local land and property title registration services. Sustainable human
development is consistent with such a comprehensive approach.

10.6 WHY ARE HUMAN RIGHTS IMPORTANT?

Human rights are important because they recognise that each person is special
with his / her own individual talents and abilities and that no one is inferior or
superior to another. At the heart of the idea of human rights is the notion that all
people are born free and equal. Everyone is entitled to live with dignity and no
one, including the State, community, family and society, has any right to
discriminate or treat anyone unfairly or unjustly. The international system of
human rights and the Indian Constitution insist that it is the duty of the State to
promote respect for all the human rights of all people equally.

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Theories and Perspectives
in Criminal Justice Self Assessment Question
1) Write a note on the importance of human rights.
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10.7 HUMAN RIGHTS — INTERNATIONAL AND

DOMESTIC LAW
India had representatives in the drafting committee of the UDHR and is bound
by the provisions of the two International Covenants viz. International Covenant
on Civil and Political Rights (ICCPR) and International Covenant on Economic,
Social and Cultural

Rights (ICESCR). The Constitution of India guarantees almost the entire gamut
of civil and political rights. Through Chapter IV of the Indian Constitution that
deals with the Directive Principles of State Policy, the Government is mandated
to promote a variety of social and economic rights that would lead to an equitable
social order and betterment of the quality of life of all sections of society. The
rights or obligations, which flow from the International Covenants to which
India is a signatory, can have meaning and substance only if they are included in
the Constitution or other domestic laws. In this context, the format of Indian
Constitution in respect of human rights is remarkable as it has sought to achieve
a delicate balance between what has been termed as civil and political rights, on
the one hand, and social, economic and cultural rights on the other. The
Constitution-makers believed in giving equal importance to the two sets of rights
as a cardinal tenet of the philosophy underlying it. While the civil and political
rights are made fundamental and judicially enforceable even though subject to
reasonable restrictions, the economic and social rights are also made basic to the
governance of the country and have to be progressively realised through
administrative action and legislative acts.

10.8 ENFORCEABLE HUMAN RIGHTS IN THE

CONSTITUTION AND LAW
It is said that a Constitution is basically a people’s covenant, their charter of
freedom and the blueprint for their future. As it is, the Indian Constitution is
envisaged to be an instrument for economic growth and social change. The
achievement of social and economic democracy, as much as political democracy,
has been one of the cardinal concerns of the Indian Constitution. The fundamental
rights and directive principles of state policy are key elements of the overriding
concern. Dr. B. R. Amendkar, in his concluding address, stated as follows in the
Constituent Assembly:
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“Political democracy cannot last unless there lies at the base of it social democracy. Human Rights Approaches
What does social democracy mean? It means a way of life which recognises
liberty, equality and fraternity as principles of life. These principles of liberty,
equality and fraternity are not to be treated as separate items in a trinity. They
form a union of trinity in the sense that to divorced one from the other is to
defeat the very purpose of democracy. Liberty cannot be divorced from equality,
equality cannot divorced from liberty. Nor can liberty and equality be divorced
from fraternity. Without equality, liberty would produce the same supremacy of
the few over the many. Equality without liberty would kill individual initiative.
Without fraternity, liberty and equality could not become a natural course of
things.”

Salient provisions of fundamental rights and other legislations are as given below:
CONSTITUTION OF INDIA
Art. 14 Equality before laws
Art. 17 Abolition of untouchability
Art.19 Fundamental freedoms
Art.20(l) Protection against conviction / enhanced punishment
under ex post facto law
Art.20(2) Protection against double jeopardy
Art.20(3) Protection against self-incrimination
Art.21 Protection of life and personal liberty
Art.22 Right against arbitrary or illegal arrest
Art.23(l) Abolition of bonded labour
Art.32 & 226 Right to remedies for enforcement of human rights
Art.46 Promotion of interests of weaker sections
Art.39A Free legal aid to the poor
CRIMINAL PROCEDURE CODE
Sec.57,41/151,46,49 Right against arbitrary or illegal arrest
Sec.50 Right to be released on bail
Sec.47,51,100 Right against arbitrary or unreasonable searches and
seizure
Sec.54,162,164 & 176 Protection against cruel or inhuman treatment during
investigation
Sec.53 & 54 Detainees should have the right to a medical examination
Sec.160 Women and children should not be taken to police
stations for purposes of investigation
Sec.300 Protection against double jeopardy
Sec.161 Protection against self-incrimination
INDIAN EVIDENCE ACT
Sec.24,25 & 26 Protection against cruel or inhuman treatment during
investigation
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Theories and Perspectives Sec. 101 to 104 Right to benefit of doubt
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Sec.ll3-A, 113-B & 114-A Protection of women against certain crimes
INDIAN PENAL CODE (IPC)
Sec.330 & 331 Protection against cruel or inhuman treatment during
investigation
Sec.376 & 304-B Protection of women against certain crimes
CODE OF CONDUCT FOR THE POLICE
Clause 1, 3 & 4 Protection of Human Rights
Clause 7 Code of Behaviour for Police Officers
Above all, the Constitution clearly states that the State shall not make any law
which takes away or abridges the rights conferred and that any law made in
contravention of the clause, shall, to the extent of contravention, be void.

10.9 DIRECTIVE PRINCIPLES OF STATE

POLICY AND THE PRACTICE OF WELFARE
STATE MODEL
The Directive Principles of State Policy are essentially in the nature of certain
directions to the state while making laws. The Constitution provides that the
directive principles are not enforceable by any court but the principles therein
laid down are nevertheless fundamental in the governance of the country and it
shall be the duty of the state to apply these principles in the making of the laws.
Essentially, the directive principles enshrine the ideal of social and economic
democracy and are humanitarian in social precepts which aim at the realisation
of a welfare state. In crux, the directive principles are intended to ensure the
dignity of human life and pursuit of happiness. In this regard, several legislative
measures have been taken both by Parliament and State Legislatures to secure
these objectives.

At one stage the judicial thinking was that fundamental rights had primacy over
directive principles. Subsequent judicial thinking was that fundamental and
directive principles complement each other and together they form the core and
conscience of our Constitution. The present judicial trend is that in determining
the reasonableness of restrictions imposed on the fundamental rights the court
can take into consideration the relevant directive principle. A seven judge Bench
of the Supreme Court by majority in the case of State of Gujarat v. Mirzapur
Moti Kureshi Kassab Jamat (2005(8) SCC 534) held that “judging reasonability
of restrictions imposed on fundamental rights, relevant consideration are not
only those as stated in Article 19 itself or in Part III; Directive Principles stated
in Part IV are also relevant - Implementation of directive principles in within the
expression ‘restriction in the interest of general public’ in Article 19(6)-A
restriction placed on any fundamental right, aimed at securing one or more of
directive principles will be held as reasonable, and hence intra vires, subject to
two restrictions: (1) that it does not run in clear conflict with the fundamental
right, and (2) it has been enacted within the legislative competence of enacting
legislature under Part XI, Chapter I”

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In the words of Soli Sorabjee, Directive Principles, in substance, article the goals Human Rights Approaches
which a truly welfare state aims to achieve. They are intended to ensure distributive
justice for the removal of inequalities and disabilities and to achieve a fair division
of wealth amongst members of the society. Directive Principles comprise of
social and economic rights such as right to health, the right to shelter, right to
living wage, right to food, right to work, protection and improvement of
environment and safeguarding of forests and wild life. Our Supreme Court has,
by judicial craftsmanship, incorporated some directive principles in fundamental
rights and thus expanded their scope and ambit.

A striking instance of expansive judicial interpretation is the Supreme Court’s

decision in Francis Coralie’s case.( Francis Coralie Mullin v., Union Territory
of Delhi & others AIR 1981, SC 746:1981(1) Sec 608:1981(2)SCR 516.)

The Court ruled that the expression “life” in Article 21 does not connote merely
physical or animal existence but embraces something more. It further opined:
“We think that the right to life includes the right to live with human dignity and
all that goes along with it, namely, the bare necessaries of life such as adequate
nutrition, clothing and shelter over the head”.

Based on this expansive interpretation the Supreme Court has appreciably

contributed to environmental protection. It has ruled that the right to live with
human dignity encompasses within its ambit, the protection and preservation of
an environment free from pollution of air and water. It has ruled that hygienic
environment is an integral facet of right to healthy life and accordingly right to
health and sanitation fall within the ambit of Article 21.
For example:
I) The right to compulsory primary education which is referred to in Art.
13(2)(a) of the ICESCR (J.P. Unikrishanan v. State of A.P. AIR 1993 SC
2178)
II) The right to health which referred to in Art.12 (1) (a) of the ICESCR (State
of Punjab v. Mohinder Singh Chawla, AIR 1997 SC 1225)
III) The right to shelter which is referred to in Art.11(1) of the ICESCR (U.P.
IV) Awas Avam Vikas Parishad v. Friends Coperative Housing Society Ltd, AIR
1996 SC 114)
V) The right to food which is again referred to in Art. 11 (1) of the ICESCR
(Madhu Kishwar v. State of Bihar1996(5) SCC 125)
VI) The right equal pay for equal work which is referred on in Art. 7 (a)(1) of
the ICESCR (Randhir v. Union of Indians, AIR 1982 SC 879)
VII) Right to legal aid (Madhav v. State of Maharashtra, AIR 1978 SC 1548)

The National Commission to Review the Working of the Constitution (NCRWC)

in its report recommended that certain socio-economic rights be included in Part
III of the Constitution as fundamental rights. For example, every child shall
have the right to care and assistance in basic needs and protection from all forms
of neglect, harm and exploitation. The NCRWC recommended that the following
rights to be incorporated in the fundamental rights part namely, every person
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Theories and Perspectives shall have the right (a) to safe drinking water; (b) to an environment that is not
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harmful to one’s health or well-being; and (c) to have the environment protected,
for the benefit of present and future generations so as to (i) prevent pollution and
ecological degradation; (ii) promote conservation; and (iii) secure ecologically
sustainable development and use of natural resources while promoting justifiable
economic and social development.Two directive principles need special attention.
The first is Article 39(b) which provides that the State should direct its policy
towards securing that the ownership and control of material resources of the
community are so distributed as best to subserve the common good. Next is
Article 39(c) which mandates that the operation of the economic system does
not result in the concentration of wealth and means of production to the common
detriment. These, along with other directive principles, make it clear that social
justice which is reflected in the preamble to the Indian Constitution is the signature
tune of our Constitution.

The National Commission to Review the Working of Constitution further

recommended the establishment of a body of high status which first reviews the
state of the level of implementation of the directive principles, in particular (i)
The Right to Work, (ii) The Right to Health, (iii) The Right to Food, Clothing
and Shelter, (iv) Right to Education up to and beyond the 14th year, and (v) The
Right to Culture. The report also enumerated various steps to be taken for ensuring
that the Directive Principles of State Policy are realised more effectively.

FUNDAMENTAL DUTIES

The proliferation of rights and dilution of corresponding duties has been a cause
for concern. One response was the Forty Second Constitutional Amendment
which incorporated certain fundamental duties of citizens in Article 51 - A of the
Constitution which are:
• Conformity to the Constitution, its ideals and institutions,
• Respect for the national flag and the national anthem;
• Cherishing ideals of freedom, fighters;
• Protection of sovereignty, unity and integrity of the country;
• Defense of the country and performance of national service , when called
for;
• Harmony amongst people, cutting across religious, linguistic and regional
diversities and upholding the dignity women;
• Preservation of heritage and composite culture;
• Protection of environment;
• Development of scientific temper;
• Safeguarding public property and abjuring violence; and
• Striving for all round excellence, individually and collectively.

At present, when fanaticism and bigotry stalk our land, utmost importance should
be given to the fundamental duties. Intolerance stems from an invincible
assumption of the wisdom and infallibility of one’s beliefs and the mind set
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which regards any questioning of these cherished beliefs as pernicious and Human Rights Approaches
subversive. We talk eloquently about freedom of speech and expression but
freedom for the thought we hate is noticeably absent. Freedom to dissent which
is a pre-requisite of democracy is under siege. Religious strife and communal
disharmony are generated by propagating stereotypes and prejudices. Ancient
historical events are resurrected for that purpose.

Our people are steeped in superstition. Irrational beliefs, practices and customs
are pervasive. Priests, pujaris and soothsayers thrive on superstition. Rational
dispassionate thinking and the spirit of inquiry has taken a back seat. These
phenomena need to be countered by implementing the fundamental duty listed
in Article 51-A(e) of developing a scientific temper and the spirit of inquiry and
reform.

It is debatable whether fundamental duties by themselves are justiciable and can

be directly enforced in a court of law. The Supreme Court may, by innovative
interpretation, make certain duties partly justiciable by infusing them into directive
principles and gradually incorporating them in fundamental rights. But that is “a
perpetual possibility only in a world of speculation.”

What is urgently needed is the creation of a citizenry conscious of their rights

and duties. Measures must be adopted by the Union and state governments to
promote an awareness of constitutional rights and responsibilities among citizens
and to sensitise them to the values embodied in our constitution. The Justice
Verma Committee on Fundamental Duties of Citizens has rightly observed that
“The desired enforceability can be better achieved by providing not merely for
legal sanctions but also combining it with social sanctions and to facilitate the
performance of the task through exemplary role models. The real task, therefore,
is to devise methods which are a combination of these aspects to ensure a ready
acceptance of the programme by the general citizenry and the youth, in particular.”

Self Assessment Question

2) Right to live includes right to live with human dignity, explain.
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10.10 THE EMBODIMENT OF HUMAN RIGHTS IN

INDIA
Universal adult franchise as a democratic form of government envisaged by the
Constitution provides guarantees against violation of human rights. Ultimately,
democracy, public opinion and awareness of one’s own rights are the best
guarantees for protection of human values and basic freedoms. The human rights
and freedoms recognised by the Indian Constitution and relevant laws are being
enforced by the legislature, executive and the judiciary.
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Theories and Perspectives In view of this, the embodiment of human rights in India falls into four categories;
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a) The rights that are recognised under the Indian Constitution;
b) The rights that are recognised under the other laws;
c) Expansion/clarification of these rights by the Indian judiciary; and
d) Human rights jurisprudence that has emerged through work of the Human
Rights Commissions.

10.11 AUTHORITIES WITH HUMAN RIGHTS

JURISDICTION
The Indian Parliament has the power to legislate on matters relating to human
rights which are embodied in the Indian Constitution as fundamental rights,
directive principles or other constitutional rights. The judiciary, particularly, the
Supreme Court of India, under Article 32 of the Constitution and the High Courts
of various states, under Article 226 of the Constitution, have jurisdiction to give
appropriate relief for violation of any of the fundamental rights. In addition to
these courts, the criminal courts at different levels have jurisdiction with respect
to certain human rights involving criminal charges. The administrative tribunals
also deal with matters falling within their jurisdiction. For instance, the labour
tribunals deal with matters affecting the rights of the labourers. This aside, the
Government of India has also taken several other measures to strengthen available
safeguards for the observance, promotion and protection of human rights by
regular monitoring, evaluation and channeling of complaints of human rights
violations, through the establishment of institutional mechanisms. These measures
include the establishment of a National Human Rights Commission, the National
Commission for Women, the National Commission for Minorities, the National
Commission for Scheduled Castes, National Commission for Scheduled Tribes,
the National Commission for Safai Karmacharis and the National Commission
for Child Rights. Many such commissions have been created at the state level as
well. These Commissions examine laws, policies and their implementations in
their core areas and make recommendations to the Government of India for
initiating appropriate actions.

The formation of the National Human Rights Commission in 1993 and

subsequently state human rights commissions and human rights courts
undoubtedly mark the hope for a possible avenue to address human rights concerns
domestically. The Human Rights Commissions shape states’ human rights policies
independently of the fulfilment of social expectations or unfulfilled promises
for victims of human rights violations. Work of the human rights commissions,
state and central governments, the judiciary, non-profit organisations and the
civil society in general is a continuously evolving activity.

10.12 NATIONAL HUMAN RIGHTS COMMISSION

In addition to the NHRC, PHRA provides for constitution of State Human Rights
Commissions and Human Rights Courts for better protection of human rights.
The following section will provide a critical analysis of NHRC, SHRCs and
Human Rights Courts in progressive realisation of human rights in India.
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Primarily, human rights commissions scrutinise violations by public authority Human Rights Approaches
and make necessary recommendations. For example, in the last fifteen years, the
NHRC received a large number of complaints of more than a lakh per year
regarding violations of various types of human rights. New human rights
jurisprudence is being developed by the Commission through creative
interpretation of the cases dealt by it. In addition, the NHRC has strived to improve
governance through effective interventions in the areas relating to food security,
right to education, right to health, hygiene and sanitation, custodial justice, rights
of women, children, elderly, disabled person, human rights of scheduled castes
and scheduled tribes, right to culture and protection of community assets, right
to life and living conditions, right to environment, disaster management and
relief of rehabilitation of displaced persons. The Commission’s role is
complementary to that of the judiciary.

NHRC has also taken up various issues which have a bearing on realisation of
human rights of individuals and groups. These include review of the Child
Marriage Restraint Act, 1929, prevention of employment of children by
government servants, amendment of service rules, abolishing child labour,
guidelines for medical personnel on sexual violence against children, trafficking
in women and children, maternal anemia, rehabilitation of destitute women in
Vrindavan, combating sexual harassment of women in work place, abolition of
manual scavenging, problems faced by denotified and nomadic tribes, rights of
the disabled and HIV / AIDS-affected persons, right to health, relief work for
victims of Orissa cyclone and tsunami, population policy, development and human
rights, corruption and human rights, and human rights education. Thus the NHRC
has initiated various measures for progressive realisation of economic, social
and cultural rights along with civil and political rights. However, the effectiveness
of such measures at the grossroot level is yet to be monitored, especially by
human rights organisations, concerned citizens’ bodies and individuals.

The Supreme Court has referred a number of important matters such as abolition
of bonded labour, functioning of mental hospitals and protective homes in Agra
and the right to food for NHRC’s consideration and recommendations. Another
welcome feature of NHRC’s functioning is that since its inception, the
Commission has recommended interim relief to the extent of Rs. 10,47,58,643,
paid in 707 cases. This aside, it has also recommended in a significant number of
cases disciplinary actions and prosecutions against the public servant who were
prima facie found responsible for their action of omission or commission resulting
in violation of human rights. Though the Commission is a recommendatory body,
the reports of the Commission are placed in the Parliament with an Action Taken
Report (ATR) by the government. Thus, there is an in-built accountability of the
government for implementation of NHRC’s recommendations. It states that 95%
of the recommendations have been generally complied with.
Reviewing NHRC’s performance, South Asian Human Rights Documentation
Centre – a Delhi-based human rights organisation – observed as follows: India’s
NHRC is charged with holding the Government of India accountable for its
record on human rights. Unfortunately, all too often in recent years, it has failed
for its record on human rights. Although much criticism of the NHRC’s structural
shortcomings should be directed for the Indian Government for deliberately
designing a weak institution, the NHRC is not powerless. Its tendency to respond
to criticism either by pointing to lack of formal authority or by reciting laundry
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Theories and Perspectives list of formal (often unused) powers reveals poverty of imagination and initative
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that has only grown more acute overtime. Until it rediscovers a modicum of
independence, initiative and creativity it had initially displayed, the NHRC will
continue to be an ineffective check upon human rights perpetuated by agents of
the state. Despite its dearth of formal powers, the early Commission and its
leadership did not accept the government’s conception of it as a tool to burnish
India’s rights records at home and abroad. It thought of itself as a bona fide
National Human Rights Institution and acted accordingly. It was in this realm of
perception and of more authority that the commission’s fragile power lay.
The other criticism made often about the performance of the commission is that
none of the NHRC’s Annual Reports after the April 2005-March 2006 report
have been presented in the Parliament. These unreleased reports have already
lost much of their purpose as a means of holding the government accountable
and as an advocacy tool of the Commission. It has been observed as follows: we
share the NHRC’s understandable frustration with its state of affairs, and applaud
its repeated insistence in past annual reports that the government considers its
reports more expeditiously. However, the NHRC has taken little public action in
the last several years to continue to press this issue, and whatever lobbying it
may have done behind the scenes appears to have been ineffective. Its use of its
suo motu power of investigation (of its own accord) has also been criticized for
not being strategic, and for being over-responsive to the mass media. A further
question that has arisen with regard to the functioning of NHRC is who uses it
and why. The broad statistical data does not indicate any profile of the
complainants, as a result of which it cannot be ascertained if the NHRC’s
complaint mechanism is being used mainly by members of elite and ‘privileged’
classes. Some human rights groups say that the NHRC has been hampered by
institutional and legal weaknesses. Since the NHRC does not have the statutory
power to investigate allegations, it can only request that a state government submit
a report with regard to a complaint of a human rights violation, which state
governments often ignore. Asian Commission on Human Rights states that in a
particular year, the NHRC did not register all complaints, dismissed cases on
frivolous grounds, did not adequately protect complainants and did not investigate
cases thoroughly. Another criticism is that NHRC’s powers to investigate cases
against the military have been severely curtailed by the Protection of Human
Rights Act.

10.13 STATE HUMAN RIGHTS COMMISSIONS

(SHRCS)
Section 21 of the Protection of Human Rights Act, 1993 envisages the setting up
of State Human Rights Commissions because, being nearer to the people of the
respective States, they would be able to provide speedy and less expensive form
of grievance redress. The NHRC, for its part, has therefore been urging the early
establishment of SHRCs in all states. Successive chairpersons have, accordingly
both written to and spoken with the Chief Ministers of states impressing on
them the need to set up SHRCs. So far 18 States had established State Human
Rights Commissions.
Role of State Human Rights Commissions (SHRCs)
In crux, the purposes for which State Human Rights Commissions have been set
62 up include:
• To bring fairness, transparency and accountability in the governmental Human Rights Approaches
administration;
• To act as a mechanism for implementation of fundamental rights and
international human rights obligations of the state;
• To provide a forum for investigation and resolution of human rights
complaints;
• To promote a culture of human rights in the state and thereby contribute to
the democratisation process; and
• To network with academic institutions and civil society organisations for
spreading human rights education across the communitiesIt may be stated
that the SHRC also intervenes in cases involving any allegations of violation
of human rights pending before a court with the approval of such a court
and also makes endeavour in highlighting invisible and unacknowledged
violence against marginalised groups of people including children and
women. To discharge its obligations effectively, the SHRCs encourage human
rights NGOs to take active part and coordinate with the concerned
commission in spreading human rights literacy, awareness and education
among various sectors of society. The SHRCs also undertake and promote
research in the field of human rights, and hold workshops, seminars and
public hearings on various human rights issues.
For example, the Maharashtra State Human Rights Commisssion (MSHRC)
recommended departmental inquiry against a police officer who had brutally
assaulted a canteen boy with his belt for refusing to clean the officer’s motorcycle;
its action in a case of suicide by a college student allegedly due to inhuman /
degrading treatment by the college staff and principal, led to registering a criminal
complaint at the police station against the alleged perpetrators; it awarded
compensation to the husband of a woman who had died due to medical negligence
during sterilisation; it sanctioned a fund of Rs. 39,85,000 for provision of civic
amenities in Ptherdi Taluka, Ahmednagar district.

Besides adequate staff and financial resources, credibility of SHRCs depends

upon the appointment of its members. As per a 2006 amendment to the PHRA,
the SHRC will have 3 members (instead of 5) - two from Judiciary (Chairman
and 1 former High Court Judge or District Judge) and 1 from amongst persons
having knowledge of or practical experience in matters relating to human rights.
Experience so far shows that under this category mostly, retired bureaucrats are
appointed instead of human rights activists / academicians having knowledge of
or working in the field of human rights.

Self Assessment Question

3) Write a note on the role of State Human Rights Commissions.
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
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Theories and Perspectives
in Criminal Justice 10.14 SUMMARY
• What is now needed for protection and promotion of human rights is a
concerted effort to create a nation-wide awareness of the need for systematic
reforms to ensure good quality governance. The reforms may include
decentralisation of power to grass-roots levels planning and polity building
from the base, disciplining our political parties and politicians, streamlining
criminal justice administration aiming to adhere to rule of law and
participation of citizens in day-to-day governance. Last but not least, the
important task for protection and promotion of human rights would be
educating the people regarding their rights and obligations.
• In many ways the Protection of Human Rights Act 1993 under which the
NHRC and SHRCs have been set up, symbolises the concerns and aspirations
of the country. It underscores the commitment of the nation to bring into
practice the provisions of international human rights instruments to which
India is a party; above all, it represents the effort to bring all the players – the
executive arm of the Government, the judiciary, political parties, academicians,
researchers, non-government organisations, human right defenders and
religious leaders together-to work towards a better realisation of the
country’s commitment to uphold thedignity of its citizens and to protect
their rights. Given the country’s diversity and range of problems, this is an
immense task.
• The endeavour should be to work towards a just and fair world socio-
economic order and to encourage countries to move gradually towards
universal norms of human rights. Ultimately, the preservation of human
rights is not a question of only legislation or special mechanisms. It is the
duty of the society as a whole to itself.

10.15 TERMINAL QUESTIONS

1) How human rights are enforceable in the constitution and different laws of
India?
2) Discuss the importance of Directive Principles of State Policy in making
India a Welfare State.

10.16 ANSWERS AND HINTS

Self Assessment Question
1) Refer to Section 10.6
2) Refer to Section 10.9
3) Refer to Section 10.13
Terminal Questions
1) Refer to Section 10.8
2) Refer to Section 10.9

64
 Human Rights Approaches
10.17 REFERENCES AND SUGGESTED READINGS
1) See Justice J.S.Verma (2002): Second Justice M. Hidayatullah Memorial
Lecture on “Protecting Human Rights Through Judicial Process on December
21, 2002 at Bhartiya Vidhyapeeth, available at www.nhrc.nic.in (accessed
on 27 January 2009)
2) Amended vide Protection of Human Rights (Amendment) Act, 2006 (No.43
of 2006) as (and such other covenant or convention adopted by the General
Assembly of the United Nations as the Central Government may, by
notification, specify)
3) Justice Gulab Gupta, Our own Human Rights. (Bhopal: M.P.Human Rights
Commission , 2001) at p.28.
4) Reoch Richard (eel.) Human Rights: The New Consensus, (London: Regency
Press, 1993) at p.11
5) For details see Harsh Mander & others, Good Governance: Resource Book
(Bangalore: Books for Change, 2004) at p.19
6) UNDP, Integrating Human Rights with Sustainable Human Development -
A UNDP Policy (UNDP, 1998) at p. 1
7) Ibid at p. 2
8) Commonwealth Human Rights Initiative, Human Rights Commissions - A
Citizen’ Handbook
(New Delhi: CHRI, 2004) p.4, available at http: / /
www.humanrightsinitiative.org/publications/hrc/hrc handbook.pdf.
9) Report on Fifty years of Indian Parliamentary Democracy published (New
Delhi: Lok Sabha Secretariat, 1997) at p. 3
10) See Linda C. Reif, ‘Building Democratic Institutions: The Role of National
Human Rights Institutions in Good Governace and Human Rights
Protection’, 13 HARV. HUM. RTS. J. 1,2 (2000) at p. 10-11
11) Ibid
12) Welcome address by Mr. Justice S. Rajendra Babu, Chairperson, National
Rights Commission at Human Rights Day function organised by NHRC on
10 December 2008, available at www.nhrc.nic.in/speeches/htm# (accessed
on 21 April 2009).
13) Ibid
14) See details in Annual Reports, Human Rights Newsletters (monthly) and
other publications of NHRC available at www.nhrc.nic.in
15) Human Rights Newsletter, November 2006 published by NHRC, New Delhi.
16) NHRC India paper for Universal Periodic Review available at
www.nhrc.nic.in (accessed on 21 April 2009).
17) Human Rights Features, Embargoed for 26 September 2007 available at
http://www.hrdc.net/ sahrdc/CHRF/174107 (accessed on 12 April 2009).
18) Human Rights Features, 26 September 2007; A publication of Asia Pacific
Human Rights Network, New Delhi. Also available at www.hrdc.net.

65
Theories and Perspectives 19) For more details, see Rajeev Dhawan, ‘Looking Back and Forging Ahead.
in Criminal Justice
Reflecting on the National Human Rights Commission’s (NHRC) Sixth
Report (1998-99)’, journal of the Indian Law Institute, Vol. 44, No. 2,2002,
pp. 228-229.
20) See India Country Reports on Human Rights Practices - 2007 released by
the Bureau of Democracy, Human Rights and Labour, U.S. Dept. of State,
on March 11,2008, p.24.
21) Section 19 of PHRA limits the power of the NHRC to directly inquire or
investigate alleged violations committed by members of the armed forces;
in such situations, the NHRC can only call for information or a report from
the Central Government, based on which it may make recommendations to
the government if it finds the need to.
22) See Annual Reports of NHRC since 1993-94 to 2005-2006.
23) Andhra Pradesh Assam, Bihar, Chhatisgarh, Gujarat, Himachal Pradesh,
Jammu & Kashmir,Karnataka, Kerala Manipur, Madhya Pradesh,
Maharasthra, Orissa, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh, and
West Bengal.
24) Maharashtra State Human Rights Commission 2004, addressed by
Chairperson on Human Rights Day at 10th December, 2004.
25) Section 21(2) of the Protection of Human Rights, 1993 (As amended by the
Protection of Human Rights (Amendment) Act, 2006, No. 43 of 2006
Books
1) Amartya Sen, Development as Freedom (New Delhi: Oxford University
Press, 2000).
2) Democracy and Human Rights (New Delhi: Rajiv Gandhi Institute for
Contemporary Research, Project No.8,1995).
3) Hand Book on Human Rights for Judicial Officers (Bangalore: National
Law School of India University, 2001).
4) Harsh Mander & others, Good Governance: Resource Book (Bangalore:
Books for Change, 2004).
5) Justice Gulab Gupta, Our Own Human Rights (Bhopal: Madhya Pradesh
Human Rights Commision, 2001).
6) Justice Jois, R., Human Rights and Indian Values (Delhi: National Council
for Teachers Education, 1997).
7) Arjun Dev, Human Rights: A Source Book (New Delhi: NCERT, 1996).
8) NCTE, Human Rights and Indian Values (New Delhi: NCTE, 1996).
9) Venkat Iyer, Democracy, Human Rights and the Rule of Law - Essays in
Honour of Nani Palkhivala (New Delhi: Butterworths India, 2000).
10) C Rajkumar & K Chockalingam, Human Rights, Justice, & Constitutional
Empowerment (New Delhi: Oxford University Press, 2007).
11) National Human Rights Commission, Human Rights Manual for District
Magistrates (New Delhi: National Human Rights Commission, 2007).

66
12) Rajeev Dhavan, One Step Forward?: Notes on the First Report of the Human Rights Approaches
National Human Rights Commission (New Delhi: PILSARC, 1995).
13) South Asian Human Rights Documentation Centre, Introducing Human
Rights (New Delhi: Oxford University Press, 2006).
14) Upendra Baxi, Human Rights in a Posthuman World - Critical Essays (New
Delhi: Oxford University Press, 2007).
Articles from Journals
1) Arvind Tiwari, ‘Human Rights: Concept and Scope’, CBI Bulletin, December
1997 at p. 8-11.
2) C. Rajkumar, ‘Role and Contribution of NHRC in promoting in National
and International Norms in National Context’, The Indian Journal of Public
Administration (IJPA), 2001, XLVIL (2), p. 222-236.
3) P.N. Singh, ‘Human Rights Protection through PIL in India’, Indian Journal
of Public Administration, 1999, XLV(4), p. 731-749.
4) Prem Kumar, ‘Fundamental Duties under Indian Constitution and Media’,
Indian Journal of Public Administration, 1999, XLV(4), p. 688-730.
5) V.S. Mani, ‘Human Rights in India: An Overview’, IWCOHR Occasional
Paper No.4 (New Delhi: Jawaharlal Nehru University, 1997)
6) Rajeev Dhavan, ‘Step by Step’, Fourth Annual Report of NHRC, 1999:
1996-97] journal of Indian Law Institute, 41 (2), p.198-199.
7) Rajeev Dhavan, ‘Strengthening Capability: Reflecting on the NHRCs Fifth
Report 1997-98’, Journal of Indian Law Institute, 2001, 43(4), p. 499.
8) Rajeev Dhavan, ‘Looking Back and Forging Ahead: Reflecting on the
NHRCs Sixth Report 1998-99’, Journal of Indian Law Institute, 2002, 44
(2), p. 257.
9) C.Rajkumar, ‘Role and Contribution of National Human Rights
Commissions in Protecting National and International Human Rights Norms
in the National Context’, Indian Journal of Public Administration, 2001,
Vol. 47, pp .222-225.
10) Rajeev Dhawan, ‘Looking Back and Forging Ahead: Reflecting on the
National Human Rights Commission’s (NHRC) Sixth Report (1998-99)’,
Journal of the Indian Law Institute, Vol. 44, No. 2, 2002, pp. 228-229.
11) Sorabjee, Soli, ‘Indian Democracy - Economic, Social and Cultural Rights’,
journal of NationalHuman Rights Commission, India, Vol.5,2006, at p. 8
Reports
1) National Human Rights Commission: Annual Report 1993-94.
2) Amnesty International Report 2002, London: Amnesty International
Publications.
3) Report of the National Consultation on Human Rights and HIV/AIDS, 24-
25 November 2000, New Delhi.
4) Report of Regional Consultation Public Health and Human Rights, 10-11
April 2001, New Delhi.

67
Theories and Perspectives 5) Report of the Seminar-cum-Public Consultation on Racism, Racial
in Criminal Justice
Discrimination, Xenophobia and Related Intolerance, 11 August 2001.
6) Reports published by NHRC:
State of the Art Forensic Science: For Better Criminal Justice, 1999.
Quality Assurance in Mental Hospital, 1999.
Guidelines Regarding Arrest, 1999.
Convention on the Rights of the Child.
Important Instructions/Guidelines, 2000.
Proceeding of the NHRC on the situation in Gujarat, March 1 July 2002.
Professional Policing - 2002
Human Rights Reporting Manual, 2002.
7) See Report (3 volumes) of the National Commission to Review the Working
of the Constitution, March 2002.
8) Report on Fifty years of Indian Parliamentary Democracy published (New
Delhi: Lok Sabha Secretariat, 1997).

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