HUMAN RIGHTS
Conflict between cultural relativism and HR 1-14
Human Rights in UN Charter 15-21
International Bill of Rights 21
UDHR 21-26
ICCPR & ICESCR- differences, self determination 26-32, 38-40
Rights 37
Implementation mechanism 40-46
Right to self determination in India 32-36
DEFINITION OF HUMAN RIGHTS-
Protection of Human Rights Act, 1993 Section 2(3) defines human rights. This
includes right to life, liberty, dignity, equality. Thus some feel that this is inclusive of
Part III of the Constitution.
Human rights may be viewed as an ongoing attempt to define human dignity and
worth and to create human right culture in our society. The concept of human rights
tells a detailed story of the attempt to obtain basic dignity. Denial of human rights is
not only against individual but against the society. It brings social and political unrest
and sows the seeds of violence in the society. The United Nations, the League of
Nations has laid the foundation.
Many authors have tried to define human rights from their own perspective-
Charter of UN defines human rights are the rights that arise by virtue of our being
human. The are inherit in our nature and without these we cannot live as human
beings.
Nani Palkiwala defined it as- The case of human rights is so strong that it almost
argues for itself. It is a case what lawyers call- res ipsa loquitor.
In DD Basu case- those rights which every individual must have against the state and
other public authority by virtue of his being a member of the human family
irrespective of any other consideration. The concept of human rights is as old as the
Asian doctrine of natural rights. It is only the natural rights that eventually led to the
formation of human rights.
Justice VM Tarkunde- The term human rights in its normal usage it comprises the
rights of individuals in all spheres of human life. They should have these rights
against harmful social powers.
Justice PN Bhagwati- Talked about HR in terms of FR. FR are of great importance for
an individual and these are the very basic standards of human rights.
The FR of a country usually talk about the freedom struggle that the country has
actually been through. FR are country specific whereas human rights are global and
not country specific.
Justice Mathew says that most HR are empty vessels in which each generation has to
pour its content in the light of their experiences.
CLASSIFICATION OF HUMAN RIGHTS
Classification from historical pov- Later on these natural rights were recognized by
Constitution and became FR. Blackstone defined HR as civil and political rights.
They were later recognized by constitutional law and became FR.
10.07.2021 [Saturday]
Classification from chronological pov- considered from pov of passage of time. When
there were no civilised societies there were no HR. When they were living as tribes,
there were customary law but without any organized HR. With passage of time, it
became duty of state to protect person and property. Recognition of HR by states
crept into the fundamental rights of the society and then at international level.
Classification from philosophical pov- it could be understood in a strict and liberal
sense. It is based on basis of religion, natural or positive law, Marxism concept,
sociological concept, the unique Indian concept, etc. The liberal approach includes
religious and natural rights. The scriptures and holy books have mentioned their own
concept of HR and they are still relevant.
In strict sense, there is concept of positive law. Whatever has been written under any
law, (customary law not considered). The entire struggle of communism is struggle of
HR. State is duty bound to abolish the economic exploitation. Law which was
uncodified like Marxist theory which was later on codified in different laws upheld
the HR. Various historical events have shaped HR from national and international
standards and various struggles cannot be forwarded.
From realistic pov, law should be dynamic and should change from time to time.
From sociological concept, law is meant to progress by society by social actions. It is
only possible that all human rights are observed and preserved in the society.
Classification from social sciences pov- It comes from social and economic pov and
civil and political pov. Many rights depend on standard of economic prosperity like
standard of living which may not have been attained by many countries. We have
social and economic rights under Part IV of Constitution and are terms as ideals
which the state is supposed to achieve for the purpose of human dignity and rights.
Civil and political rights are traditional rights of that individual as against the state
representing the society and the lassez faire doctrine of non-interference. Unless and
untill they are placed on footing of viability for proper enforcement, social equality is
Classification from geographical pov- protection of black people in America and
SC/ST in India.
Classification from importance pov, general and specific pov,
Classification from enforceable pov- justifiable and unjustifiable Part III and Part IV
of the constitution, many rights from Treaties are unjustifiable yet part of HR.
Classification from intelligible differentia pov- Some HR are available for all people
over the world and some are for particular group like LGBTQIA+.
1st generation- social and political
2nd generation- economic, social and cultural
3rd generation- collective or solidarity
4th generation- right to information
5th generation-
THEORIES OF HUMAN RIGHTS
7.2021 [Friday]
UDHR was not conceived as a law but was conceived as a common standard that all
countries aspired to achieve and it was passed without dissent.
But it had the effect of law. People began to feel that Declarations are codified form
of customary international law. UN encouraged nations to conform their national
standards to the declaration and raise their national norms.
ICCPR and ICESCR came into existence. They came up with correctness of rights in
subtle ways. They were in terms of different conception of people. There was wide
agreement and clear recognition.
Many states insisted that both the covenants should include right to self determination
and sovereignty over their resources. These covenants run parallel to UDHR.
They provide protection to rights mentioned in the Constitution and promises of
socialist and welfare concepts.
Some important commissions- commission on genocide, commission on status of
refugees, commission on protection of women also extended the ideals of UDHR.
Covenants are enforceable. ICCPR and ICESCR are enforceable.
7.2021 [Saturday]
International Bill of Rights- Since its inception, the UN has strived to secure human
rights. The UDHR is not legally binding but the effect of the UDHR has far surpassed
the expectations of the drafters. It is widely accepted as consensus of global opinion
on fundamental rights. International Bill of Rights is a document consisting of UDHR,
ICCPR, its Optional Protocol, ICESCR. It is the ethical and legal basis of all work on
human rights of the UN the foundation upon which the international system is
developed.
It has been describes as the milestone in the history of HR. The consideration of HR is
implicit in the UN Charter. In the first session, the GA had drafted a draft. The IBR
has been drafted on three differet mechanisms- declaration on HR standards, more
elaboration in the form of covenants and implementation.
UDHR was the first normative response of the international community towards HR
violation in World War. Equality is man’s birth right and it cannot be alienated.
Article 2 sets out the basic principle of equality and non-discrimination. Article 14-21
are civil and political rights. Article 22-36 are economic and social rights.
Importance of UDHR-
⚫ When UN had adopted the UDHR in 1948 it was only intended to be a
declaration and a common standard of achievement. After 60 years of its coming
into existence, it still stands on an important pedestal. It has been used as a basis
for constitutive documents for many new emerging and new decolonized states.
Most HR instruments have a basis in the UDHR and give further definition and
cognizance to these rights.
⚫ International states behaviour have been judged through the standards which have
been set by the UDHR. The international community has set its agenda for HR
upon the standards of UDHR and have themselves come forward to scrutinize
themselves through UDHR.
⚫ Although the Declaration has not regarded itself as a legally binding document,
its influence on drafting and practice of state’s constitution after 1948 has been
impressive and far-reaching. Indian Courts still use the Declaration to clarify the
FR provisions of the constitution.
⚫ UDHR has provided enormative basis for all future activities of UN in field of
HR. It led to the drafting of the two important covenants and ultimately led to the
International Bill of Rights. A number of treaties and instruments have emerged
on its basis.
⚫ UDHR has also inspired efforts at regional level for evolving the HR.
However, we cannot overlook that UDHR reflects what was essentially a mid century
western perspective of HR. All the articles including the preamble is based on the
response that the western countries got from the war. So they did not achieve that
much attention at UN as they deserved. UDHR has been the motivation for making
advances towards HR.
7.2021 [Thursday]
ICCPR- 53 articles
Art 1-3 are principles.
⚫ State action is limited- Art 4 is an emergency provision. This restricts certain
rights that states cannot derogate even in emergency situations. The state freedom
of action is limited in ICCPR.
⚫ Rights are individual in nature
⚫ States have responsibility to respect the rights irrespective of political situation.
Art 6-27 broadly identifies the civil and political rights.
Art 28-45 is the implementation mechanism under ICCPR. The mechanism is the
Human Rights Committee. This committee has different roles and functions to
perform for giving effect to rights under the covenant.
Art 46-53 is miscellaneous provisions related to ratification, amendment, etc.
Important article- Art 4, 6-27 and 28-45.
Two Optional Protocols of ICCPR
Optional Protocol I is to set up the process of individual complaint mechanism or
individual communication. This has been receiving communication from individuals
claiming violation of rights under the covenant. It was adopted along with ICCPR in
1996.
Article 1 of OPI recognizes the competence of HR committee receives
communication from individual. Individuals are obviously required to exhaust all
domestic mechanisms and submit an application to HR committee.
Optional Protocol II was adopted in 1989 and is based on abolition of death penalty.
No one within the jurisdiction of member state should be executed.
India has not ratified both the Optional Protocols.
Implementation Mechanism- Article 28-45 is implementation mechanism. The body
for supervising the states is the HR Committee. Art 28 talks about establishment of
HR Committee. Members are elected on the basis of equitable geographical
representation of membership. Elected for 4 years by secret ballot. Each party
nominates 2 candidates who are nationals of the nominating state. Members can be re-
elected. Committee holds a session 3 times a year.
Functions of HR Committee- (1) advisory and monetary, (2) conciliatory and (3)
inquiry and investigative.
⚫ Reporting mechanism- Take reports from states. ICCPR and OPI provide for
committee to mandatorily monitor and supervise the states. It is a system of
periodic reports taken from states under Art 40. The state parties undertake to
submit the report on the measures that they have adopted to give effect to the
rights given under ICCPR and on the progress made on the enjoyment of these
rights. The copy of these reports are forwarded to economic and social council for
consideration and the committee itself is required to submit annual report.
7.2021 [Saturday]
⚫ Formulate general comment- It is means by which the Committee carries out its
function of interpreting the covenant, the scope and meaning of its articles. Thus
all the state parties have the option to develop and adopt such general comment.
General comment draws clear meaning of the articles. It plays an advisory role,
the general rules are extended in a comprehensive fashion. General Comment
analyzes a specific issue in the covenant and comprehensively explains it.
General Comment are available on the treaty database of HR Committee.
Suppose states are not allowed to use armed weapons on each other. The General
Comment clarifies whether it is chemical weapon or biological weapon, what
kind of weapon. Thus it clarifies the scope and extent of the article. GC also
explains how reservations of certain states have to be interpreted.
⚫ Inter-state complaint procedure- Article 41 and 42. Receive communication from
state party to consider that another state is not following the provisions of ICCPR.
If both the states have declared that they recognize the competence of ICCPR to
give such communication, with a view to promote friendly relations.
Lodge the complaint against the state who is not following the obligations. Within
next 3 months, the state against whom such allegations are made has to file a
written reply. If the matter is not settled to the satisfaction of both parties within 6
months, they refer the matter to the HR Committee. However, all domestic
remedies must be exhausted. The HR Committee may suggest its good offices
and suggest an amicable solution. If no agreement is reached, the Committee may
appoint a 5 person conciliation commission with an agreement of state parties
directly concerned but not including the nationals of the two states. This
commission has to submit a report within 12 to the HR Committee. The decision
of the conciliation commission has to be followed by both the parties.
⚫ Individual communication procedure- It is mentioned in OP on individual
communication. It may empower the committee to receive and empower the
complaint through individual. It was added in 1966. Individuals who claims to be
victims of violation of state. They can complain only if the state party has ratified
the OP to the covenant. Individuals should have adopted all domestic remedies.
They may submit a complaint to the HRC and the committee will forward its
view to the state party concerned. They consider the admissibility and merit of
the complaint and give opinion on the same. The rights violated should be present
under the ICCPR.
Legal standing of the HR Committee-
HR Committee is not a court but exercises the responsibility of fulfilling the human
rights. The decisions from the HR Committee in inter state communication or
individual complaints, are views and Article 5 para 4 of ICCPR. The views are mere
recommendations and have no binding value. These recommendations should be
taken up for consideration. But they are overall very effective because views of the
HR Committee, the states have to implement it in its domestic legislation.
Emergency provisions
Emergency provisions limit the exercise of rights in the interest of public safety,
public order or protection of human rights.
Article 4 of ICCPR is the limitation of power in case of emergency. The state parties
can take temporary measures and derogate from their obligations. At the time of
ratification, they may take reservation against as much as the entire covenant. They
may permit temporarily to deny civil and political rights. However, certain human
rights cannot be derogated even in emergency-
⚫ Right to life
⚫ Right to freedom from slavery
⚫ Right against Ex-post facto law
⚫ Right to Thought, conscience and religion
⚫ Right against Slave trade
⚫ Right against Civil prison
⚫ Right to Recognition of person before law
Article 29(2) of UDHR broadly talks that everyone shall be subject to limitations to
meet the just requirement of morality, public order and national security. Therefore in
times of public emergency, the state parties to ICCPR may suspend implementation of
certain rights under the covenant. These limitations must be rational, non-arbitrary
and proportional and states have an obligation to prove so.
8.2021 [Friday]
International Covenant on Economic, Social and Cultural Rights (ICESCR)
It was adopted in 1966 alongside UDHR and ICCPR. Some rights such as right to self
determination, right against discrimination, right to form trade unions are common in
both ICCPR and ICESCR. However some rights are exclusive to each.
UDHR also consists of economic, social and cultural rights. The doctrine of human
rights aspires to frame the common framework to determine economic, social and
cultural rights to ensure protection of people as full persons so people can enjoy
freedom and social justice. 1/5th of the World population goes hungry every night,
people do not have safe drinking water so renewed attention is required to ensure eco,
socio and cultural rights.
The importance of ESC rights has rapidly increased after the Cold War and in the last
20 years HR work has focused on individualistic freedoms. ESC rights are fully
recognized by the international community. This has now become fundamental rights
and various other legislation have come into force like labour laws, maternity laws,
DPSP.
ESC rights have been adopted on 16th December 1966 and came into force in 1967.
These rights depend on the progressive realization of state resources like natural
resources, financial resources, etc. ICESCR have been ratified by a lot of countries yet
there has been a lot for reservations to its provisions and India has not ratified it.
States have constrained resources so they become signatories to the covenant but do
not ratify it.
ICESCR comprises Preamble and 31 article. It can be divided in 5 parts.
Part 1- right to self determination (Article 1)
Part 2- General nature of state obligation (Article 2-5)
Part 3- Substantive rights (Article 6-15)
Part 4- Implementation mechanism (Article
Part 5- Miscellaneous provisions
The covenant places limitations on implementation. For example- right to self
determination means sovereignty over one’s resources and then developing countries
have the freedom to implement these rights according to their resources.
Article 2 and 3 gives the principle of progressive realization states. State must
progress according to the resources it possesses.
Implementation mechanism- State parties have an obligation to ensure
implementation of core rights. Under Article 2 of ICESCR, principle of progressive
realization is mentioned. The compliance with state parties should be monitored and
supervised by the Committee on Economic, Social and Cultural Rights. For the
committee, there is an Optional Protocol on Committee on ESC Rights to entertain
individual complain.
Committee has adopted a typology method (tripartite method) of state obligation to
respect, protect and fulfill the rights under the covenant. The committee is an 18
members committee elected by the Economic and Social Council. The members are
not the representatives of their government.
The committee was established in 1985. The Economic and Social Council under the
UN was a key organization for implementation of ESC rights. This committee is not
as successful when compared to ICCPR. There is no data to record its progress. State
parties have made reservations so not much has been achieved in this respect.
Article 16 of ICESCR talks about submission of a report to record the measure that
they have adopted and failure to report constitutes violation of state obligation under
ICESCR.
8.2021 [Friday]
The Secretary General may transit the specialised agency copies of the reports in so
far as the reports relate to any matters within the responsibilities of these agencies eg
ILO, UNESCO, UNICEF, etc. Thus, reports may be sent to these agencies to fulfill
rights under the covenant.
Optional Protocol on Committee on ESC Rights was adopted in 2002 which
strengthened the complaint mechanism. The working group was appointed to work on
the Optional Protocol.
How to ensure domestic protection and enforcement of economic, social and
cultural rights? (Exam)
The court principle of domestic application of international law is laid down under
Article 27 of Vienna Convention on Law of Treaties which states that the parties may
not invoke the provisions of its domestic legislation as justification for failure of
parties to perform obligations under a treaty. The Indian government has acceded to
ICESCR and upon this accession, has made three declarations-
⚫ With reference to Article 1 of ICESCR the gov of India declares that the words
‘right to self determination’ apply only to people under the foreign domination
and these words do not apply to sovereign state or people who are under national
sovereignty.
⚫ Article 4 and 8 of ICESCR, the gov of India declares that the provisions shall be
so applied as to be in conformity with the provision of Article 19 of Indian
Constitution. Thus India has given primary importance to Article 19 of
Constitution over Art. 4 and 8.
⚫ With reference to Article 7 of ICESCR, the gov of India declare that this
provisions shall be applied in conformity with Article 16(4) of the Indian
Constitution.
Cases (Exam)
Right to health- Article 47 provides for duty of states to improve public health.
Courts have taken right to health to be intrinsic to right to life and have made it
justiciable. No state or country can have unlimited resources to spend on its projects
especially in relation to right to health. But the violation of right to health is
considered when the minimum code standards are not considered.
Paschim Bengal Khet Majdoor Samiti v State of West Begal (1996)- It considers
a seriously ill man who was refused entry in 7 hospitals. SC found that the
government hospitals are duty bound to extend medical assistance to preserve
human life. Failure on their part to provide timely medical treatment to a person
results in the violation of rights which are guaranteed under Article 21.
Consumer Education and Research Centre v Union of India (1995)- It dealt
with the right of workers in a dangerous environment and the enforcement of their
right to health.
Parmanand Katara v UOI- Article 21 of Constitution casts the obligation on the
State to preserve life. The provision as explained by this Court in scores of
decisions has emphasized and reiterated with gradually increasing emphasis that
position. A doctor at the Government hospital positioned to meet this State
obligation is, therefore, duty-bound to extend medical assistance for preserving
life. Every doctor whether at a Government hospital or otherwise has the
professional obligation to extend his services with due expertise for protecting life.
No law or State action can intervene to avoid/delay the discharge of the
paramount obligation cast upon members of the medical profession. The
obligation being total, absolute and paramount, laws of procedure whether in
statutes or otherwise which would interfere with the discharge of this obligation
cannot be sustained and must, therefore, give way.
Rakesh Chandra Narayan v UOI- In 1988, the Supreme Court had held that in a
welfare state, it is the obligation of the government to provide medical attention to
each and every citizen
Drug Action Forum v UOI and All India Women’s Association v UOI- on
quality of drugs.
Right to education- Article 45 provides for education and early childhood care.
Article 21A provides free and compulsory education to all children between 6-14
years of age. Article 51A talks about who would be a parent or guardian in order to
ensure protection of children and their education.
Mohini Jain v State of Karnataka- right to education declared as fundamental
right. In this case the Supreme Court through a division bench comprising of
justice Kuldip Singh and R.M. Sahai, deciding on the constitutional of the
practice of charging capitation ee held that:‘ the right to education flows directly
from the right to life. The right to life and the dignity of an individual cannot be
assured unless it is accompanied by the right to education.’
Unnikrishnan v State of Andhra Pradesh- The rationality of this judgment was
further examined by a five judge bench in J.P. Unnikrishnan v. State of Andhra
Pradesh where the enforceability and the extent of the right to education was
clarified in the following words: “The right to education further means that a
citizen has a right to call upon the State to provide educational facilities to him
within the limits of its economic capacity and development.”
Right to work- State according to its economic resources may provide for right to
work. Article 38 provides state shall promote a welfare state and a social order.
Bandhua Mukti Morcha v UOI- This right to live with human dignity enshrined in
Art. 21 derives its life breath from the Directive Principle of State Policy and particularly
clause (e) and (f) of Art. 39 and Art. 41 and 42 and at the least, therefore, it must include
protection of the health and strength of the workers, men and women, and of the tender
age of children against abuse, opportunities and facilities for children to develop in a
healthy manner and in conditions of freedom and dignity, educational facilities, just as
humane conditions of work and maternity relief.
Vishakha v State of Rajasthan- rights of female employees and not to be
subjected to sexual harassment at workplace.
K Rajendran v State of Tamil Nadu- justiciability of right to work was discussed.
Abolition of post of government officials in TN. Any person who is a government
servant should be rehabilitated and provided with alternate employment by the
state.
Right to strike- ICESCR does not declare an express right to strike but recognises
that this may be allowed in accordance with domestic provisions.
TK Rangarajan v State of Tamil Nadu- SC referred to strikes as a weapon which
is misused and results in maladministration. But it upheld the legitimacy of
TESMA and that there is no fundamental right to strike and organisation is
entitled to suppress the strike and ensure order.
There is no right to call for bandh which calls for suppression of fundamental
rights of others. There is no legal justification to strike.
BR Singh v UOI- Court viewed that trade unions with sufficient membership are
able to bargain more efficiently in the absence of demonstration. Strike is a form
of demonstration. The right of demonstration and therefore the right to strike is an
important armour in the hands of workers.
Right to food- In Shantisar Builders v Narayanan Khimala Totame, the Court held
that basic needs of man have traditionally been accepted to be three – food, clothing
and shelter. The right to life is guaranteed in any civilized society. That would take
within its sweep, the right to food, the right to clothing, the right to a decent
environment and reasonable accommodation to live in.30
In Dena Nath vs. National Fertilizers Ltd.31, the Court observed that the enforcement
of the provisions to establish a canteen in every establishment under Section 16 is to
supply food to workmen at the subsidized rates as the right to food is a basic human
right.
In PUCL vs. Union of India32, the Court held that right to food is a fundamental right
of all citizens, and ordered that the country’s gigantic food stocks should be used
without any delay to prevent hunger and starvation.
Right to housing-
The Right to housing was first mentioned in the case of Francis Coralie v.
Delhi [14] , where Justice Bhagwati stated that [15] , “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 necessities of life such as adequate nutrition, clothing and shelter over the
head and facilities for reading, writing and expressing oneself in diverse forms, freely
moving about and mixing and commingling with fellow human beings.”
Chameli Singh v State of Uttar Pradesh- it was held that right to live guaranteed
in any civilized society implies the right to food, water, decent environment,
education, medical care and shelter. Right to shelter includes adequate living
place, safe and decent structure, clean and decent surroundings, sufficient light,
pure air and water, electricity, sanitation and other civic amenities like roads etc.
so as to provide an easy access to daily avocations.
Olega Tellis v Municipal Corporation of Bombay- The Hon'ble Supreme Court
held that the slum dwellers must get the alternative shelter if they are evicted from
the pavements.Although, the eviction orders were held to be valid under article 14
and 19 of the Constitution. Infact, the right to life was once again enlarged to
engulf the right to livelihood as being a part of liberty of an individual.
