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Human Rights and Media

Edition: Fall 2009


BJ0063
B1583
Sikkim Manipal University
Directorate of Distance Education
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Author:
Dr S.S. Jaswal, Asst. Research Professor, Indian Law Institute, Bhagwan Dass Road,
(Opposite Supreme Court), New Delhi-110001, India.
Copyright Author, 2012
Reviewer: Dr Shivram Krishnan [SMU DE]
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Dean
Directorate of Distance Education
Sikkim Manipal University (SMU DDE)
BOARD OF STUDIES
Chairman
Head Vocational Sciences
SMU DDE, Manipal 576 104
Additional Registrar
SMU DDE
Manipal 576 104
Addl. Registrar (S.E.)
Office of Student Evaluation
SMU DDE, Manipal
Prof. Buroshiv Dasgupta
Executive Director
Manipal Institute of Communication
Manipal 576 104
Muralidhar Hegde
Chairman
Smart Works, Bangalore 560 001
Dr Gautam Machiah
Vice President
Zee Network
Prof. K. V. Nagaraj
Head, Department of Communication and
Journalism, Mangalore University
John Thomas
Ex-Editor, Vijay Times and Former Vice-Dean
IIJNM, Bangalore
Adam Clapham
Author and Former Senior Producer, BBC
Gopakumar A.V.
Sr. Lecturer (Journalism and Mass Communication)
SMU DDE, Manipal
Special Invitee
Prof. Kushal Kumar
Dean, MIME, Bangalore
Human Rights and Media
Contents
Unit 1
Introduction To Human Rights 151
Unit 2
Principles and Theories of Human Rights 53100
Unit 3
Organizations Related to Human Rights 101147
Unit 4
State of Human Rights in India 149198
Unit 5
Indian Constitution and Human Rights 199258
Unit 6
Child and Human Rights 259296
Unit 7
Women and Human Rights 297358
SUBJECT INTRODUCTION
Human Rights and Media
The concept of human rights has arisen from that of natural rights of all human.
The belief that every person by virtue of his humanity is entitled to certain natural
rights is a recurring theme throughout the history of mankind. It can be traced
back thousands of years from the Vedas to the Hammurabai Code to the Magna
Carta, the French Declaration of Human Rights, and the American Bill of Rights.
Time and again history shows that the existence of human rights has been
recognized and accepted as a necessary component for the well being of
civilization at any given time. The World conference of Human Rights held in
1993 marks a crucial stage in United Nations policy in the field of human rights.
The Vienna Declaration encouraged the United Nations to pursue and strengthen
its activities to make respect for human rights a priority objective on the same
level as development and democracy and to work for the concurrent
achievements of these objectives.
However, despite such developments, the sad fact remains that many people
still remain unaware of their rights. According to the Amnesty International, the
largest human rights organization in the world, only 8 per cent of adults and 4
per cent of youth in the Unites States are aware of foundation stone for human
rights. It is here that the media can play a monumental role in creating larger
awareness of human rights. The role of media in protection of human rights
cannot be ignored or minimized, because it is a communicator of the public and
sets its social, political economic and cultural agenda.
Media can play a major role in protecting and promoting human rights in the
world. It can make people aware of the need to promote certain values in the
cause of human rights which are of eternal value to the mankind. Peace, non-
violence, disarmament, maintenance and promotion of ecological balances and
unpolluted environment and ensuring human rights to all irrespective of caste,
colour and creed should be the minimum common agenda for the media. The
media can perform this role in different ways. It can make people aware of their
rights, expose its violations and focus attention on people and areas in need of
the protection of human rights and pursue their case till they achieve them.
Human Rights and Media Subject Introduction
Sikkim Manipal University Page No. (vi)
The seven units in this book discuss the following topics:
Unit 1 Introduction to Human Rights: Gives a comprehensive overview of
the origin, sources and perspective of human rights
Unit 2 Principles and Theories of Human Rights: States the evolution of
the concept of human rights and its various theories, approaches and principles
Unit 3 Organizations Related to Human Rights: Explains the functioning of
the UN, its specialized agencies, Security Council, ECOSOC and UN
Commission on Human Rights
Unit 4 State of Human Rights in India: Defines the genesis of human rights
in India and the rights of minorities
Unit 5 Indian Constitution and Human Rights: Critically evaluates human
rights in the context of Constitution of India, UN Declaration on Human Rights
Unit 6 - Child and Human Rights: Discusses the rights of children, female
foeticide, sexual exploitation, child labour, child prostitution, illegitimacy and
delinquency
Unit 7 Women and Human Rights: Explains the various acts of violence
faced by women including dowry death, domestic violence and sexual
harassment at workplace
Objectives of studying the unit
After studying this subject, you should be able to:
Describe the concept of human rights
Discuss the principles and theories of human rights
List the organizations devoted to the cause of human rights
Assess the situation of human rights in India
Define the concept of human rights in context of the Indian constitution
Criticize the concept of child rights
Elaborate upon the rights of women
Unit 1 Introduction To Human Rights
Structure
1.1 Introduction
Objectives
1.2 Historical Origins of Human Rights
1.3 Sources of Human Rights
1.4 Perspectives on Human Rights and Human Duties
1.5 Nature and Concept of Duties
1.6 UN and UN Charter
1.7 International Bill of Rights
1.8 Individual and Human Rights
1.9 State Responsibility in International Law
1.10 Indian Values and Human Rights
1.11 Emerging Dimensions in Human Rights: Basic Concepts
1.12 Summary
1.13 Glossary
1.14 Terminal Questions
1.15 Answers
1.16 Further Reading
In January 2003, Libya was elected to chair the United Nations Human Rights
Commission! And why not? Libyan dictator Muammar Brotherly Leader
and Guide of the Revolution Gaddafi, with his long history of supporting
terrorism and torturing and assassinating political opponents, was certainly
an expert on Human Rights!!
Source: http://www.anecdotage.com/index.php?aid=15655
1.1 Introduction
Human rights are the basic rights and freedom that all people should enjoy
irrespective of the country they belong to, their sex, their race or origin, the religion
they follow, the language they speak, or any other status. These rights include
civil and political rights, that is the right to life, liberty and freedom of expression.
These rights also comprise social, cultural and economic rights, including the
right to participate in culture, the right to food, and the right to not only work but
also get educated. There are treaties and laws, both national and international,
that uphold human rights and protect them. Human rights are rights enjoyed by
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an individual simply because he or she is human. These rights are regarded as
universal, equal and inalienable and are held by all human beings regardless of
any distinctions.
Respect for the dignity and worth of each person forms the foundation
of human rights. Human rights are universal. In other words, they belong to
everyone everywhere.They must be applied equally and without discrimination
to all people. They are inalienable, which means that human rights of persons
cannot be taken away other than in specific conditions as prescribed by law. For
example, the right to liberty can be restricted if a person is found guilty of a crime
by a court of law. Human rights are indivisible, interrelated and interdependent. It
is not enough to respect some human rights and ignore others. As a result of
their interrelatedness, the violation of one right will often affect the respect of
several other rights. There is no hierarchy between different sets of rights.
Therefore, equal importance should be given to all human rights. It should be
considered essential by one and all to respect the dignity and worth of every
person. All individuals should have an understanding of human rights. This is an
important part of an individuals status as a human being and equally important
for our collective status as members of the global community of humankind. A
thorough understanding of how human rights infuence our daily lives is essential
for us to fulfil our responsibilities in accepting the need to balance those rights
with the rights of others.
In this unit, you will learn about the origin and sources of human rights, the
different perspectives on human rights and duties, the nature and concept of
duties and emerging dimensions in human rights. You will also read about the
role of the UN and UN charter, the international bill of rights and responsibility of
state in international law.
Objectives
After studying this unit, you should be able to:
Identify how human values determine human rights
Define the concepts of liberty, equality, justice and unity as understood
under the term human rights
Distinguish between rights and duties, and explain how they are interrelated
Explain the UN Charter
Discuss how the laws of state responsibility govern when and how states
are held responsible for violation of international obligations
Evaluate the emerging dimensions in human rights
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1.2 Historical Origins of Human Rights
A philosophical discussion that went on for over two thousand years within the
European societies and their colonial descendants, led to the emergence of the
concept of human rights.
Ethical values of political organization and behaviour were sought, which
would be independent of the contemporary society. People have generally been
critical of the view that what is right or good is entirely dependent on the stand
that the society or ruling class takes on what is correct at that particular time.
This apprehension led to the hunt for long-lasting moral values that would be
applicable at all times and at all places. Political philosophers argued this matter
back and forth. This led later thinkers to lay the way for contemporary human
rights. There were some, however, who were against this view and these thinkers
laid their own path. Thus, it can be seen that human rights emerged from natural
rights amidst much conflict. It was argued by some people that rights could
come only from the law of a particular society and not from any other source,
natural or inherent.
Classical Greek philosophers propounded the concept of natural right.
Though initiated by Aristotle, it was Thomas Aquinas who completely developed
it in his Summa Theological. Aquinas notion was the accepted authority for
many centuries. In it, he said that goods or behaviours that were naturally right
or wrong were due to the will of God. Humans could use their power of reasoning
to determine what was naturally right. Hugo Grotius elaborated on this notion in
De jure belli et paci (On the Law of War and Peace), putting forth the idea that
what is naturally right or wrong cannot change.
The Law of Nature is so unalterable, that it cannot be changed even by
God himself. Although the power of God is infinite, yet there are some
things, to which it does not extend. ...Thus two and two must make four,
nor is it possible otherwise; nor, again, can what is really evil not be evil.
The origin of moral authority of natural right was considered to be divine
and thus, assured. The extent of human political activity was fixed by God. But
the religious foundations for this vein of thought resulted in its long-term difficulty.
Thomas Hobbes, in 1651, critically viewed the theory of the divine basis of
natural right. According to him, God had no hand in his State of Nature.What
was more important was that Hobbes switched from using natural right to a
natural right. This meant that a list of behaviour that was simply naturally right or
wrong, did not exist any more. Hobbes believed that we were entitled to something
from nature. In Hobbes view, this was the natural right of self-preservation.
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Immanuel Kant reacted to Hobbes at the end of the seventeenth century, and
reinforced the theory of natural rights. He believed it was natural for human
beings to protect each other from violence that could arise in a state of nature.
This led to the formation of a state-structured society. According to the basic
rules of society, the members are obliged to treat each other according to
universal principles.
Kants moral philosophy led to his political doctrine wherein he stated that
universal laws had to be imposed and obeyed for the organization of a state.
However, these laws were expected to respect the equality, freedom, and
autonomy of the citizens. That is how Kant emphasized the necessity of basic
rights for civil society:
A true system of politics cannot therefore take a single step without first
paying tribute to morality. ...The rights of man must be held sacred,
however great a sacrifice the ruling power must make.
Many years after Hobbes published his Leviathan, the divine basis of
natural rights was still studied. At the end of the seventeenth century,
John Locke published his Two Treatises on government where he wrote
in favour of natural rights. His work indicated what God had intended or
given to mankind. Lockes long-term effect on political discourse showed
through in the American Declaration of Independence and Frances
Declaration of the Rights of Man and the Citizen, passed by the Republican
Assembly after the revolution in 1789. The French declaration proclaimed
17 rights as the natural, inalienable and sacred rights of man.
The French Declaration of Rights created a stir among political writers in
England. Its notion of natural rights was questioned and attacked. Jeremy
Bentham argued that it was not possible to have natural rights because rights
were created by societal law. In his work Anarchical Fallacies, he criticized
each and every clause of the Declaration.
Right, the substantive right, is the child of law: from real laws come real
rights; but from laws of nature, fancied and invented by poets,
rhetoriticians, and dealers in moral and intellectual poisons come
imaginary rights, a bastard brood of monsters, gorgons and chimeras
dire.
Natural rights is simple nonsense: natural and imprescriptible rights,
rhetorical nonsense - nonsense upon stilts.
Harsh criticism of the French Declarations assertion of natural rights came
from Edmund Burke too. His argument was that rights were the benefits that
were won by each society. Since the political struggles of England and France
had been different through history, they also came to hold different rights.
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Soon after the French Declaration, Thomas Paine defended the conception
of natural rights and their link with the rights of a particular society in The Rights
of Man. This work was published in 1791 and 1792, in two parts. Paine
distinguished between natural rights and civil rights, but emphasized an essential
link:
Natural rights are those which appertain to man in right of his existence.
Of this kind are all the intellectual rights, or rights of the mind, and also
all those rights of acting as an individual for his own comfort and happiness,
which are not injurious to the natural rights of others. Civil rights are
those which appertain to man in right of being a member of society.
Every civil right has for its foundation, some natural right pre-existing in
the individual, but to the enjoyment of which his individual power is not,
in all cases, sufficiently competent. Of this kind are all those which
relate to security and protection.
In these words we find, earlier inspiration for human rights from the social
contract views of writers such as Jean-Jacques Rousseau, whose argument
was that people consent to live with and follow common rules if the society
protects them.
It can thus be said that the rights that individuals cannot protect on their
own are taken care of by the state.
Modern theorists follow a notion of natural rights that is not sourced or
inspired from a divine ordering.
Those who oppose this view build on Burkes and Benthams criticisms
and also on views of Rousseau about civil society. Persistent opposition results
from the perspective that rights are inexistent irrespective of human endeavour;
these can only be created by human action. Rights are viewed as the product of
a particular society and its legal system.
Karl Marx also opposed rights that checked socialist thinkers from
accommodating rights within their theories of society. Marx believed that rights
were fabricated by the middle class where the individual was separate from his
or her society. Rights were required in capitalist states for ensuring protection
from the state. According to Marxs view of society, an individual is a product of
society and, therefore, should ideally not be seen in an antagonistic relationship
where rights are needed. However, many socialists have come to accept certain
conceptions of rights in the late twentieth century.
Political philosophy has been several centuries in the making involving
innumerable sessions of debates. Many years ago the seeds of the idea of
Human Rights were sown in the minds of philosophers of natural rights.
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Significantly, the concept occupies a vital place in contemporary apolitical
consciousness. However, in spite of the countless discourses thinkers have
not been able to provide answers to the following questions Can we assume
that rights are products of a particular vision and laws of society? Are these
rights sacrosanct and irrefutable?
Another moot point is that these theories are rooted in Western political
traditions. They are an offshoot of European natural rights. More so, rights that
are seen as natural have their background in theory of liberalism of the nineteenth
and twentieth centuries. With human rights, the rhetorical framework of the natural
rights tradition has become the foundation for the values of Western liberalism.
One critique of human rights is that these cannot be universal as they are
derivatives of Western thought, and are grounded in a purely European idea that
man is separable from society. Are such thoughts on individual rights applicable
to collectivist or communitarian societies? Clearly such cultures see the
individual as very much an indistinguishable part of society as a whole. Those in
the West and some others believe that the individual is a unique entity; however
this thought is not shared by all societies. Different social orders have differing
views on whether individuals should be given rights that protect them from society
and if yes, then how much.
Not only is there a disagreement on the basis of this concept itself but
also one on the way that human rights have gestated. Some of the human rights
that are listed sound like conditions required for democracy. However it may be
mentioned that there are several societies that have worked very successfully
in spite of not having any form of individual equality or even the right to vote,
which is clearly indispensible to the tenets of democracy.
A question that recurs in later discussions is whether the human rights
advocated today are really civil rights that pertain to a particular liberal and
conception of society. We can say that to answer this question we need to
examine the objective of human rights. What are we trying to achieve? If human
rights is just another name for liberalism, then we cannot debate their authority
over other political values. For human rights to be universal they must not be
dominated by a certain ideology. They must be grounded on a common
universality for there to be any substantial measure of compliance.
Human rights are an age-old idea. Generally, it adheres to a notion that
human beings are equal in the eyes of the law. Wherever granted, human rights
are inherent, individual and automatically exercised. These rights were adopted
in 1948 at the UN Universal Declaration of Human Rights. They were codified in
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1966, at the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights.
What do these human rights encompass and what is their reach?
According to some, they go back to traditional civil liberties and political freedoms
and to some they go beyond and cover social and economic rights. Naturally,
human rights are essential for everyone and begin with the idea of an indivisible
respect for human dignity. They also are a precursor to guaranteeing basic rights.
Global and national communities have made frequent efforts to promote and
protect human rights. Every human being has certain rights that he is born with
and is guaranteed. These rights are commonly known as human rights. Human
right includes civil rights, civil liberties and social, economic and cultural rights.
Human rights are validated as morally right. But rights cannot exist
independently; they are accompanied by a set of duties. Individuals cannot enjoy
rights if they do not carry out their duties.
Every individual has a natural right to life, liberty, property and the pursuit
of happiness. This notion is central to liberalism and influences our ideas about
rights and duties of individuals in the modern state. However, there are many
views that co-exist within liberal political thought; such as what is the nature and
range of citizens rights and to what extent do rights include duties.
1.2.1 Rights
Since the 17th century, human thinking has been veering round to the theory
that man has certain essential, basic, natural and inalienable rights or freedoms
and it is the function of the State to ensure that human liberty is preserved,
human personality developed, and an effective social and democratic life
promoted, to recognize these rights and freedoms. The concept of human rights
can be traced to the natural law philosophers such as Locke and Rousseau.
These natural law philosophers philosophized over such inherent human rights
and sought to preserve these rights by propounding the theory of social compact.
According to Locke, man is born with a title to perfect freedom and an uncontrolled
enjoyment of all the rights and privileges of the Law of Nature and he has by
nature a power to preserve his property, that is, his life, liberty, and estate,
against the injuries and attempts of other men. (Two Treatises of Government,
Chapter 7, Section 87-89)
The Declaration of the French Revolution in 1789, which may be regarded
as a concrete political statement on human rights and which was inspired by
the Lockeian philosophy, declared:
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The aim of all political association is the conservation of the natural and
inalienable rights of man. The concept of human rights protects individuals against
the excesses of the State. The concept of human rights represents an attempt
to protect the individual from oppression and injustice. In modern times, it is
widely accepted that the right to liberty is the very essence of a free society and
it must be safeguarded at all times. The idea of guaranteeing certain rights is to
ensure that a person may have a minimum guaranteed freedom. According to
Austin, liberty is illusory if it is not protected by law and if law protects it, it amounts
to a right. The difference between a right and liberty lies only in the emphasis
laid on particular elements in the conception. In liberty, prominence is given to
the absence of legal restraint and protection is secondary, but in the case of
right it is just the other way. Right denotes protection and the absence of restraint.
A right may be defined as a moral principle that describes and guarantees
an individuals freedom of action in a social context. Interestingly, there is only
one fundamental right, which is that a person has a right to his own life. All
others are derivates or upshots of this. The right to life implies that individuals
have the right to pursue self-sustaining and self-generated action. In other words
it means that a person can take all possible actions so as to meet his aspirations
in life. This is what is meant by having the right to life, liberty and the pursuit of
happiness.
By rights we refer to those conditions that a person needs so as to live.
This includes having the freedom to live ,to apply his mind, act freely in keeping
with his way of thinking, and having the right to hold on to the product of his work.
People have to live as rational beings. Anyone or any community or country that
tries to gag a mans freedom and rights is anti life.
Self-Assessment Questions
1. Fill in the blanks with appropriate words:
(a) In The Rights of Man, published in two parts in 1791 and 1792,
_______ made a distinction between natural rights and civil rights.
(b) _______ propounded the immutability of what is naturally right and
wrong.
2. State whether the following are true or false:
(a) There is only one fundamental right, that is, a mans right to his own
life. The rest are consequences or corollaries of this right.
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(b) It is the function of the king to ensure that human liberty is preserved,
human personality is developed, and an effective social and
democratic life is promoted
1.3 Sources of Human Rights
The recognition of human rights has evolved extensively since the creation of
the United Nations, which has established a set of rules for all the people across
the globe. The variety of sources from where international human rights laws
have been derived is as follows:
Religion: The term human right as such is not found in most of the
worlds religions. Nonetheless, theology serves as the basis of a human
rights theory stemming from a law higher than the State and whose source
is the Supreme Being. This presupposes an acceptance of revealed
doctrine as the source of such rights. Every individual is considered sacred
in the religious context. The fact that human beings have been created by
a common creator gives rise to the theory of a common humanity; from
this rise the universality of these rights. A wide intercultural tradition has
been constructed by the common bond of religion that supports various
principles of justice and equality that underlie human rights.
Natural law: Natural law theory has underpinnings in Sophocles and
Aristotles writings. It was first elaborated during the Greek period and
later during the Roman period. Natural law, embodied elementary principles
of justice which were right, that is, they were in accordance with nature,
unalterable and eternal. The natural rights theory evolved from the natural
law theory. John Locke, the chief exponent of the natural rights theory,
developed his philosophy within the framework of the 17th century
humanism and enlightenment. The 18th century saw the birth of
absolutism, against which the natural rights theory provided impetus to
revolt. The same impetus is also seen in the French Declaration of the
Rights of man and in the American Declaration of Independence. It is also
evident in the later States which declared their independence against anti-
colonial terrorism and also in the principle United Nations human rights
documents. The natural rights theory has identified human freedom and
equality from which other human rights originate and has thus contributed
tremendously to the evolution of human rights internationally.
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International treaties: Treaties are the most important sources of
international human rights law. At present, there are a number of multilateral
human rights treaties in operation, which are legally binding for the countries
that have ratified them. The most important amongst them is the United
Nations Charter. It is binding on all the countries in the world and establishes
at least general obligations to respect and promote human rights. The
United Nations has also enacted a number of other multilateral human
rights treaties that have created obligations to the contracting parties.
European Convention on Human Rights, American Convention on Human
Rights and African Charter on Human and Peoples Rights are other
regional treaties on human rights. They are also legally binding on the
contracting States. They, therefore, are the sources of international human
rights law.
International custom: There are some global human rights that have
come to be seen as routine international law because they are followed
in countries and are binding on all whether they have agreed to them or
not. Some examples of these are genocide, slavery or slave trade, the
murder or causing the disappearance of individuals, torture or other cruel,
inhuman or degrading treatment or punishment, prolonged arbitrary
detention, systematic racial discrimination, or a consistent pattern of gross
violations of internationally recognized human rights. These are heinous
acts and are condemned by all and thus form a part of international law.
Other international instruments: A large number of international
declarations, resolutions and recommendations connecting to human
rights have been adopted with the support of the United Nations. Though
they are not legally binding on the States but have established broadly
recognized standards in connection with human rights issues. The most
important of these is the Universal Declaration of Human Rights of 1948,
which has moral or political force for persuading government officials to
observe human rights standards. Some of the rights referred therein have
acquired the character of customary rule of International Law and also
serve as the source of the commitment by the international community.
Judicial decisions: Decisions of the various national bodies like National
Human Rights Commission and international judicial bodies like
International Court of Justice and European Court of Human Rights are
relevant in the determination of the rules on human rights issues. The
decisions of the Supreme Court and high courts on human rights issues
have contributed immensely to the development of human rights law. In
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addition to the judicial decisions, opinions of the arbitral bodies whose
function is to mediate on complaints of human rights violations under the
various treaties also help in the determination of the rules relevant to
international human rights.
Official documentations: United Nations and its subsidiary bodies through
their official documents have produced a vast amount of records relating
to human rights matters. Human Rights Law Journal, Human Rights
Review and European Law Review and the collective work done under the
auspices of the international and national bodies are of considerable value.
The above are the important sources of international human rights law
but they by no means are exhaustive. Many international and national
institutions contribute to the protection of human rights. Further, a variety
of actions taken by the United Nations organs and other international bodies
have also supported specific efforts to protect human rights (Figure 1.1).
Religion
Official
documentation
Judicial
decisions
International
treaties &
instruments
Natural law
Human
Rights
International
custom
Figure 1.1 : Human rights have been derived from various sources
Self-Assessment Questions
3. Fill in the blanks with appropriate words:
(a) ________, the chief exponent of the natural rights theory, developed
his philosophy within the framework of the 17th century humanism
and enlightenment.
(b) The _________of 1948, has moral or political force for persuading
government officials to observe human rights standards.
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4. State whether the following are true or false:
(a) A large number of international declarations, resolutions and
recommendations connecting to human rights have been adopted
with the support of the United Nations.
(b) Treaties are the most important sources of international human rights
law.
1.4 Perspectives on Human Rights and Human Duties
As per United Nations System and Human Rights (2000), human rights are
universal legal guarantees protecting individuals and groups against actions that
interfere with fundamental freedoms and human dignity. Some of the most
important characteristics of human rights are that they:
Are guaranteed by international standards
Are legally protected
Focus on the dignity of the human being
Oblige States and State actors
Cannot be waived or taken away
Are interdependent and interrelated
Are universal
Human rights are natural rights that stem from human dignity and have
some peculiar characteristics. These are described as follows:
Internationalism: United Nations Charter, the Universal Declaration of
Human Rights, the Vienna Declaration of Human Rights, etc., guarantee
respect for human dignity and the right to pursue happiness. These
international efforts have been agreed on internationally making human
rights a subject of international concern. All the countries are expected to
observe these rights equally and with sincerity. Consequently, the
guarantee of human rights is given not only by individual States but by the
international community as a whole. It is a vital and ever-increasing issue.
It has become the common ideology of the whole international community
that is beyond State borders.
Universality: Human rights go along with the progress of human society
and have always been a universal concern of human beings in various
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international documents. The dignity, worth and right to happiness of all
must be accepted without any condition or clause. Race, colour, sex,
language, religion, political opinion, nation, social position, property, origin
or other circumstance should not be used for discrimination and that
everybody is endowed with all rights and freedoms. Moreover, nobody
can be discriminated against because of membership in a particular self-
governed or dependent state, nor limited in his rights because of political,
legislative or international position. They are objectively accorded regardless
of anyones will.
Inheritance: Human rights guarantee human dignity and because they
were given originally to the people they are recognized as natural inherent
rights. Human rights are not granted in accordance with any law or by any
State.
Absoluteness: Human rights are inalienable rights. So, they are
recognized universally and are absolute rights. The essence of human
personality, human dignity and worth, confirms them to be inviolable. As
such the State must guarantee the peoples dignity, respect and happiness
by preventing any law which would do otherwise.
Inviolability: Human rights cannot be violated as they are inherent and
are internationally enforced. In addition to this, the guarantee of human
rights is the duty of the State. The State should neither alienate these
rights nor, limit or violate them.
Permanence: Human rights are not to be guaranteed temporarily for a
certain period of time but should be permanently assured of which nobody
could be deprived. The dignity and worth of human beings does not change
over time by the status or position.
Individuality: Human rights have their basis in peoples dignity, worth
and happiness. Every human being is independent and each person
possesses a right to be independent which cannot be taken away in lieu
of any other thing. Every person has a right to determine own destiny,
which is a prerequisite of personal right. In simple terms, human rights
are a subject of neither a nation nor of a collective body, but of the individual.
Self-determination: All people have the right to self-determination on the
basis of inherent human dignity. It means that all people freely determine
their own political position and independence, seek their own economic,
social and cultural development. As human dignity, worth and happiness
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are intrinsic to personal rights, personal rights become a necessary
prerequisite for the individuals to determine their own destiny. The subject
of human rights is the natural human or the individual who has the right to
determine his life.
Self-evidence: Men are born equal and with certain fixed, inherent,
inalienable rights, including the right to life, freedom and happiness. This
is accepted as a self-evident truth.
Fundamental: Human rights include the principle of obtaining a guarantee
of human dignity, worth and happiness. It is a fundamental norm and
produces a basic principle, which has become a standard for analysing
the essence of effectiveness of laws and ordinances. Thus, it should be
considered a standard of human dignity and worth as far as it is included
both in establishing the laws and analysing them.
EXHIBIT 1.1
December 19, 2011
Kim Jong-ils Death: An Opportunity for Human Rights in North Korea?
By Sharon Singh (Washington, D.C.) The death of North Korean leader
Kim Jong-il and assumption of power by his son, Kim Jong-un, present an
important opportunity for improving the countrys catastrophic human rights
record, Amnesty International said today.
Kim Jong-il, like his father before him, left millions of North Koreans mired in
poverty, without access to adequate food and healthcare, and with hundreds
of thousands of people detained in brutal prison camps, said Sam Zarifi,
Amnesty Internationals Asia-Pacific director. With this transition, we hope
that the new government will step away from the horrific, failed policies of the
past.
However, recent reports received by Amnesty International suggest that the
North Korean government has purged possibly hundreds of officials deemed
to be a threat to Kim Jong-uns succession, by having them executed or sent
to political prison camps.
In the months immediately following Kim Jong-ils own succession to the
North Korean leadership, after the 1994 death of his father Kim Il-Sung, tens
of thousands of perceived or potential political opponents and their family
members were sent to political prison camps. Political opponents were also
executed either in secret or publicly following grossly unfair trials, or no trial
at all.
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Amnesty International has documented North Koreas abysmal human rights
record for years. Freedom of expression and association are almost non-
existent. Hundreds of thousands of people deemed to oppose the state are
held in detention camps such as the notorious Yodok facility, which detain
family members up to three generations. Inmates are forced into hard labor
for up to 12 hours a day.
Meanwhile, more than a third of the population is suffering food shortages
and the healthcare system is in critical decline. Amnesty International has
received reports of people surviving on eating bark and grass, the use of
unsterilized needles, and major surgeries undertaken without anesthesia.
Amnesty International is repeating its call on the North Korean government,
as well as international donors, to ensure that food is adequately distributed
to the neediest people in North Korea.
Nearly a million people have died in North Korea because of acute food
shortages since the mid-1990s. Millions more, especially children and the
elderly, continue to suffer from chronic malnutrition. This is in large part due
to failed or counterproductive government policies implemented under the
leadership of Kim Il-Sung and then under Kim Jong-il.
The North Korean authorities and the new leader of North Korea must make
immediate improvements in human rights including:
Immediately and unconditionally release all prisoners of conscience,
including family members, held in all political prison camps. All other
inmates should be released unless they are charged with an
internationally recognizable offense, remanded by an independent court
and are given a fair trial
Act immediately to stop forced labor, torture and other ill-treatment of
prisoners including those held in all political prisons camps
Grant immediate and unfettered access to international humanitarian
agencies such as the U.N. World Food Program to ensure that food
reaches those most in need
Address severe shortages in the healthcare system including through
accepting international humanitarian assistance and providing full
cooperation and access to ensure that care reaches those most in need
Immediately end public and secret executions
Thoroughly, independently and impartially investigate past and current
allegations of abductions and enforced disappearances
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Ensure the rights to freedom of expression and religion provided for in
the Constitution and in relevant international human rights instruments
are fully guaranteed in practice
Take immediate action to implement the recommendations of international
human rights experts and recommendations made to North Korea during
the Universal Periodic Review.
Invite independent monitors such as the U.N. Special Rapporteurs on
the right to food, the right to freedom of opinion and expression, freedom
of religion and belief, and in particular the situation on human rights in
the Democratic Peoples Republic of Korea to the country
Amnesty International is a Nobel Peace Prize-winning grassroots activist
organization with more than 3 million supporters, activists and volunteers in
more than 150 countries campaigning for human rights worldwide. The
organization investigates and exposes abuses, educates and mobilizes the
public and works to protect people wherever justice, freedom and dignity are
denied.
Source: http://www.amnestyusa.org/news/press-releases/kim-jong-il-s-death-could-
be-opportunity-for-human-rights-in-north-korea-says-amnesty-international
Human
Rights
Self-evidence
Fundamental
Internationalism
Universality
Inheritance
Absoluteness
Inviolability
Permanence
Individuality
Self-determination
Figure 1.2 Characteristic Features of Human Rights
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Types of Rights
Rights can be categorized as inherent rights, inalienable rights, universal rights,
individual rights and group rights.
Individual
Rights
Collective
or
Group
Rights
Universal
(International
or global)
Rights
Figure 1.3 Types of Rights
Inherent Rights
All human beings come under the umbrella of human rights irrespective of their
nationality, place of residence, sex, national or ethnic origin, colour, religion,
language, or any other status. Every individual is entitled to his human rights
without discrimination. All human rights are interrelated, interdependent and
indivisible.
Inheritable rights are those that can be passed on from one generation to
the next such as the right to possess ancestral property. In the case of human
rights, these are basic rights that a human being is born with, such as the right
to food. These rights are basic for survival and for maintenance of minimum
living standards. According to Morsink, everyone has human rights simply by
virtue of being born into the human family and regardless of any government or
court action (or inaction). Human rights thus are global and not outcomes of a
particular culture, economic scheme, or political system.
Inherent rights and Indigenous People
Indigenous peoples human rights, like all human rights, are widely recognized
as inherent and inalienable. UN declarations do not grant human rights, and
cannot be used to extinguish them. We have rights as Indigenous peoples,
because we exist as Indigenous peoples. Declarations can affirm that specific
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human rights are recognizedby governments, and may describe them in more
detail.
The Preamble to the UN Declaration on the Rights of Indigenous
Peoples further reinforces that the collective rights of indigenous peoples are
inherent. Recognizing the urgent need to respect and promote the inherent
rights of indigenous peopleswhich derive from their political, economic and
social structures and from their cultures, spiritual traditions, histories and
philosophies, especially their rights to their lands, territories and resources.
Governments can contribute to the language of a declaration.
Governments can agree to a human rights declaration. They can sign and
ratify a human rights treaty.Governments can promote and protect human
rights that are recognized internationally or regionally.
Article 1 of the Declaration affirms: Indigenous peoples have the right
to the full enjoyment, as a collective or as individuals, of all human rights and
fundamental freedoms as recognized in international human rights law.
The collective right of Indigenous peoples to self-determination is
enumerated in both the International Covenant on Civil and Political Rights
(ICCPR) and the InternationalCovenant on Economic, Social, and Cultural
Rights (ICESCR). It reads, in part:
All peoples have the right of self-determination. By virtue of that right
they freely determine their political status and freely pursue their economic,
social and cultural development.
All peoples may, for their own ends, freely dispose of their natural wealth
and resources
In no case may a people be deprived of its own means of subsistence.
Another example from the ICCPR is the right to our own cultures. A
broad definition of culture is applied to this right, which acknowledges an
indigenous perspective.
Culture manifests itself in many forms, including a particular way of life
associated with the use of land resources, especially in the case of
indigenous peoples. That right may include such traditional activities as
fishing or hunting
Inalienable Rights
We can define inalienable rights as those that cannot be surrendered, sold or
transferred. They can be referred to as natural or God-given rights (life, liberty
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and the pursuit of happiness). Certain rights such as a social security number
are inalienable only because the law prohibits reassigning an individuals number
to someone else.
Inalienable rights are those that can only be handed over to someone
else when the person who possesses them agrees to do so. Human rights are
inalienable and should be taken away only according to due process. For
example, the right to liberty may be restricted if a person is found guilty of a
crime by a court of law.
All human rights are indivisible, whether they are civil or political rights,
such as the right to life, equality before the law, and freedom of expression.
Economic, social and cultural rights, such as the rights to work, social security
and education, or collective rights, such as the rights to development and self-
determination, are indivisible, interrelated and interdependent. When one right
changes for the better, it leads to expansion of other rights. Similarly, restraining
one right can have a negative effect on others. Thus, they are related.
Universal Rights
Universality of human rights is the foundation of international human rights law.
First laid down in the Universal Declaration of Human Rights, 1948, this principle
has been reiterated in numerous international human rights conventions,
declarations, and resolutions. For example, the 1993 Vienna World Conference
on Human Rights stressed on the responsibility of States to uphold and support
all human rights and basic freedoms, regardless of their political, economic and
cultural systems.
Universal human rights are endorsed and safeguarded by law. This may
be done in various ways such as through treaties, customary international law,
general principles and other sources of international law. International human
rights law offers guidelines to governments so as to act in certain ways or to
refrain from certain acts, in order to promote and protect human rights and
fundamental freedoms of individuals or groups.
All nations have ratified at least one, and 80 per cent have ratified four or
more of the core human rights treaties. This shows the nations aspiration to
create legal obligations and give concrete expression to universality of human
rights. Clearly there are some basic human rights norms that have universal
protection provided by international law across all boundaries and civilizations.
Non-discrimination is a cross-cutting principle in international human rights law.
The principle is present in all major human rights treaties and is at the centre of
some international human rights conventions such as the International Convention
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on the Elimination of All Forms of Racial Discrimination and the Convention on
the Elimination of All Forms of Discrimination against Women. The principle is
pertinent to all vis a vis human rights and freedoms and prohibits discrimination
on the basis of sex, race, colour, etc. The principle of nondiscrimination is
complemented by the principle of equality, as stated in Article 1 of the Universal
Declaration of Human Rights: All human beings are born free and equal in
dignity and rights.
Individual Rights
Individual rights are those that are held by a person rather than by a group. An
individual can have rights by any of these ways: mandated by the law, provided
by social means, or gained through self-determination. These rights are normally
related to the concept of nature. It is true that everyone is born with rights that
cannot be denied. According to political scientists, individual rights can either be
negative or positive. When a person is not supposed to act on a certain principle
it becomes a negative right and when he may act in a certain capacity if he
wants then it is a positive right. This can either be authorized by the laws of a
society or simply exist in a natural way. For example, a negative right prevents a
person from stealing and a positive right gives him the liberty to speak freely.
Individual rights globally are related to the concept of individualism. In the
United States, individual rights are often viewed as a means to promote freedom
and curtail the government or the majority. This is close to what is followed in
most European countries. Interestingly, most debates regarding individual rights
relate to negative rights. In China, individual rights are suppressed so as to
prevent an upheaval in society and ensure a strong central power. This is
maintained by coalescing negative rights with positive rights. Essentially what it
means is that an individual works within a parameter of what he can and cannot
do.
The concept of a right largely pertains to freedom of action. It incorporates
freedom from physical compulsion, coercion or interference by other men. Thus,
a right is the moral sanction that a person has so that he can act freely on his
own judgment, for his own goals, by his own voluntary choice. His rights impose
no obligations on others around him except of a negative kind: to abstain from
violating his rights. An individual right is the only proper principle of human
coexistence because it rests on mans nature, i.e. the nature and requirements
of a conceptual consciousness. While living in a human society is the proper
way of life and man can benefit enormously from this interdependence, it comes
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with certain caveats: Man is not a lone wolf and he is not a social animal. He is
a contractual animal. He has to plan his life long-range, make his own choices,
and deal with other men by voluntary agreement (and he has to be able to rely
on their observance of the agreements they entered).
Since man has inalienable individual rights, it is clear that others too hold
such rights. Naturally, the rights of one man cannot and must not violate the
rights of another. A man has the right to live but he cannot take the life of another.
He has the right to be free but cannot enslave another. He has the right to choose
his happiness, but not by causing misery to others. In this way, his own rights
instruct him as to what he may or may not do.
Within the sphere of your own rights, your freedom is absolute
A right cannot be taken away except by physical force. A person does not have
the right to take away the life of another, nor enslave him, nor prohibit him from
pursuing his happiness. If he does this it will only be with the use of force.
Whenever a man is made to act without his own free, personal, individual,
voluntary consent his right is violated. There is there must be an unambiguous
division between the rights of one man and those of another. It is an objective
division to subject to differences of opinion, nor to majority decision, nor to the
arbitrary decree of society. No man has the right to use physical force against
another. Any alleged right of one man, which necessitates the violation of rights
of another, cannot be called a right.
Individual rights are not subject to public vote. The majority population
cannot veto the rights of a minority. In fact, the political function of rights is to
protect minorities from oppression by majorities (and the smallest minority on
earth is the individual). When individual rights are abrogated, we cannot say
who is entitled to what. There is no way to determine the fairness of anyones
claims, desires, or interests.
If we turn to the tribal way of living which says that ones wishes are
limited only by the power of ones gang, we find that to survive under such a
system, people have to resort to fear, hatred, and destruction of one another.
One of the notions to justify the draft (which draft?)is that rights impose
obligations. Obligations, to whom and imposed by whom? It implies that rights
are a gift from the state, and that a man has to buy them by offering something
(his life) in return. This is a contradiction and wrong because the function of a
government is to protect mans rights. It is not entitled to his life in exchange for
that protection.
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The only obligation that an individual has vis a vis his rights is one that is
imposed by the nature of reality (i.e., by the law of identity). It refers to consistency,
which means that if one wishes ones own rights to be recognized and protected
then one must respect the rights of others.
Group Rights
Group rights are those that are granted to a group or a community rather than to
an individual, and they are held by individuals only when they belong to a specified
group. Alternatively, individual rights are those that are given to each person,
whether they belong to a group or not. Significantly it has been seen in the past
that group rights can both infringe upon and facilitate individual rights. This is
what makes them so controversial. Group rights are not universal to all people
and are not granted to a person just by virtue of being human. Since only an
individual can possess rights, the expression individual rights is a redundancy
(which one has to use for purposes of clarification in todays intellectual chaos).
Collective rights is a contradiction in terms. A group, as such, has no rights. A
man can neither acquire new rights by joining a group nor lose the rights that he
possesses. Clearly, the principle of individual rights is the only moral base for all
groups or associations.
Individual rights have connotations of political and economic freedom,
whereas group rights are associated with social control. The reason for this is
that individual rights came about in connection with equality before the law and
protection from the state. Examples include Magna Carta wherein the King of
England consented that his will could be constrained by the law and certain
rights of the Kings subjects were explicitly protected. Group rights in the context
of colonialism that legalized racism and white nationalism have a negative
meaning. Here group rights are granted to a privileged group. For example, in
colonized South Africa inhabitants were classified into racial groups (black, white,
coloured and Indian). Rights were awarded on a group basis and citizens were
divided between first class and second class. In the modern world, some
acknowledge the power of group rights to actively facilitate the realization of
equality. In a society that provides for equality before the law for all citizens,
equality often refers to material equality. Thus the group needs special protective
rights so that its members enjoy living conditions that are similar to or equal with
the rest. Examples of such groups include indigenous peoples, ethnic minorities,
women, children and the disabled. This debate occurs in the context of negative
and positive rights. Some commentators and policy-makers view equality as
both a negative right, in the sense of ensuring freedom from discrimination and
a positive right, in that the realization of equality requires redistributive action by
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others or the state. In this respect group rights can aim to ensure equal opportunity
and actively redress inequality.
Many countries have programmes relating to reverse discrimination or
positive discrimination. The US has a non-quota race preference called affirmative
action for government jobs and educational institutions. India has many affirmative
action quotas or reservations that hope to redress historical inequalities of
opportunity, some of which are a product of the caste system. Group rights here
seek to realize equality of opportunity and/or equality of outcome. Affirmative
action is controversial because it is not consistent with the absolute application
of the right to equality.
There are other groups the rights of which cater to organizational persons,
including nation-states, trade unions, corporations, trade associations, chambers
of commerce, and political parties. Such organizations have rights that are
particular to their specific functions and their capacities to speak on behalf of
their members. This means the corporation can speak to the government on
behalf of individual customers or employees. Another example is that of trade
unions that can negotiate for benefits with employers on behalf of all workers in
a company.
Individual Rights vs Group Rights
Ordinarily, the notion of rights in liberal western tradition is understood as
guaranteed to the individual. Thus, the liberal thinkers generally understand rights
as entitlements or interests which individuals possess against the state authority.
In brief, group rights are generally the rights that are granted for the welfare of a
community or society at large. For instance, the rights enshrined under Part IV
of the Indian Constitution, which are described as Directive Principles of State
Policy, are group rights as they are guaranteed for the general welfare of the
society. The International Covenant of Social and Economic Rights (ICSCR)
also incorporate rights of a similar nature. Students of constitutional law are well
aware how the right to property (an individual right) under the Indian Constitution
became a cause of struggle against the states effort to secure social/ land
reforms. Indeed, the entire controversy leading to the Doctrine of Basic Structure
in the Kesavananda Bharti case (1973) (see box) was a conflict between the
individual right to property and social right to reduction of inequality of income.
Thus, the conflicting interests of individual rights and societal/ group rights have
led to a constant controversy. One of the major points of difference between
capitalists and socialists is their preference of individual and societal rights. The
former have emphasized the relative superiority of the individual rights, whereas
the latter have advocated for socio-economic rights above individual rights.
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Kesavananda Bharati vs the State of Kerala and Others: when
individualright was superseded by socio-economic rights
Kesavananda Bharati vs The State of Kerala and Others is a landmark
decision of the Supreme Court of India. It is the basis for the power of the
Indian judiciary to review,and strike down, amendments to the Constitution of
India passed by the Indian Parliament which conflict with or seek to alter the
Constitutions basic structure.The judgment also defined the extent to which
Parliament could restrict the right to property, in pursuit of land reform and
the redistribution of large land holdings to cultivators, overruling previous
decisions that suggested that the right to property could not be restricted.
The case was a culmination of a series of cases relating to limitations
to the power toamend the Indian Constitution. Earlier, in 1967, in Golak Nath
vs. the State of Punjab, a bench of eleven Supreme Court judges deliberated
as to whether any part of the Fundamental Rights provisions of the Constitution
could be revoked or limited by amendment of the Constitution. This question
had previously been considered in Shankari Prasad vs Union of India and
Sajjan Singh vs State of Rajasthan. In both cases, the power to amend the
rights had been upheld on the basis of Article 368. In 1973, thirteen judges of
the Supreme Court, including then Chief Justice, heard arguments in the
Kesavananda Bharati vs the State of Kerala and thusc onsidered the validity
of the 24th, 25th and 29th Amendments, and more basically the correctness
of the decision in the Golak Nath case. This time, the Court held, by the
thinnest of margins of 7-6, that although no part of the Constitution, including
Fundamental Rights, was beyond the amending power of the Parliament
(thus overrulingthe 1967 case), the basic structure of the Constitution could
not be abrogated even by a constitutional amendment.
Self Assessment Questions
5. Fill in the blanks with appropriate words:
(a) _____ rights are rights held by a group rather than by its members
separately.
(b) In the ________, the English King accepted that his will could be
bound by the law.
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6. State whether the following are true or false:
(a) The capitalists have emphasized the relative superiority of the
individual rights, whereas the socialists have advocated for socio-
economic rights above individual rights.
(b) The sociologists have emphasized the relative superiority of the
individual rights, whereas the capitalists have advocated for socio-
economic rights above individual rights.
1.5 Nature and Concept of Duties
Duty refers to an act or a course of action that is required of one by position,
social custom, law, or religion. According to Salmond: A duty is an obligatory
act, that is, it is an act opposite of which would be a wrong. Duties and wrongs
are correlatives. The commission of a wrong is the breach of duty and the
performance of a duty is the avoidance of wrong.
Duties are of two kindslegal and moral. A legal duty is an act required to be
carried out by law and treated as such for the administration of justice. A moral
or natural duty is an act the opposite of which is a moral or natural wrong. A duty
may be moral but not legal, or legal but not moral, or both at once. For example,
it is a legal duty not to sell adulterated milk knowingly. There is no legal duty to
refrain from offensive curiosity about ones neighbours even if its satisfaction
does them harm. This is a moral duty but not a legal duty.
Duties may be positive or negative. When the law obliges us to do an act,
the duty is called positive. When the law obliges us to forbear from doing an act,
the duty is negative. If R has a right to a land, there is a corresponding duty on
persons generally not to interfere with his exclusive use of the land. Such a duty
is a negative duty. It is extinguished only if the right itself is extinguished. If S
owes a sum of money to Y, the former has a duty to pay the amount due. This
is a positive duty. In the case of positive duties, the performance of the duty
extinguishes both duty and right but a negative duty can never be extinguished
by fulfillment.
Duties can also be primary and secondary. Primary duties are those which
exist per se and independently of any other duty. An example of a primary duty is
to forbear from causing personal injury to another. A secondary duty is that which
has no independent existence but exists only for the enforcement of other duties.
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An example of a secondary duty is the duty to pay a man damages for the injury
already done to his person. It is also called a remedial, restitutory or sanctioning
duty.
According to Austin, some duties are absolute. Those duties do not
have a corresponding right. Examples of absolute duties are self-regarding duties
such as a duty not to commit suicide or become intoxicated, a duty to
indeterminate persons or the public such as a duty not to commit a nuisance, a
duty to one who is not a human being, such as a duty towards God or animals
and a duty to sovereign or State.
1.5.1 Concept of Duty in the Indian Constitution
The Constitution Amendment Act, 1976, breaks new ground by introducing the
innovative concept of Fundamental Duties of the Indian citizens in the
Constitution. For this purpose, a new Part IVA consisting of Article 51 A has been
added to the Constitution. Article 51 A lays down the following ten Fundamental
Duties:
1. To abide by the Constitution and respect its ideals and institutions, the
National Flag and the National Anthem
2. To cherish and follow the noble ideals which inspired our national struggle
for freedom
3. To uphold and protect the sovereignty, unity and integrity of India
4. To defend the country and render national service when called upon to do
so
5. To promote harmony and the spirit of common brotherhood amongst all
the people of India transcending religious, linguistic and regional diversities;
to renounce practices derogatory to the dignity of women
6. To value and preserve the rich heritage of our composite culture
7. To protect and improve the natural environment including forests, lakes,
rivers and wildlife, and to have compassion for living creatures
8. To develop a scientific temper, humanism and a spirit of enquiry and reform;
9. To safeguard public property and to abjure violence
10. To strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour
and achievement
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It is not clear whether a law made for enforcement of a basic duty can
infringe a Fundamental Right or not. There is no provision clarifying the relationship
between Fundamental Duties and Fundamental Rights. Perhaps, the idea is
that these precepts should become a part and parcel of every Indians thoughts
and actions.
1.5.2 Interrelationship between Rights and Duties
Human rights entail both rights and obligations. States assume obligations and
duties under international law to respect, to protect and to fulfill human rights.
The obligation to respect means that States must refrain from interfering with or
curtailing the enjoyment of human rights. The obligation to protect requires States
to protect individuals and groups against the violation of human rights. The
obligation to fulfill means that States must take positive action to facilitate the
enjoyment of basic human rights. At the individual level, while we are entitled our
human rights, we should also respect the human rights of others. It is a debatable
question whether rights and duties are necessarily correlative. There are two
schools of thought, one led by Salmond (which claims that duty and right are
correlative) and the other led by Austin (which claims that they are not correlative).
The word correlative suggests something which is mutual, complementary,
reciprocal or corresponding. Correlations signify something that occurs together.
The term correlative does not mean opposite. Duty is not the opposite of right,
it is a correlative of right; i.e., they occur together. The opposite of right is no-
right.
The view that duties and rights are correlative: According to Salmond, a
duty is an obligatory act, it is an act, the opposite of which is a wrong. When we
do a wrong we have violated the right of another. Wrong (breach of duty), therefore,
signifies violation of a right. Salmond contends that there can be no duty unless
there is someone to whom it is due. There can, therefore, be no right without a
corresponding duty, and no duty without a corresponding right; just as there
cannot be a wife without a husband or a father without a child.
Examples:
(a) A right to receive a debt on part of the creditor implies a corresponding
duty on part of the debtor to pay the amount.
(b) If I have a right to my reputation, then it means that you are under a duty
not to spoil my reputation.
Thus, we see that every right or duty involves a vinculum juris, or bond of
legal obligation, by which two or more persons are bound together. Thus, every
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duty must be a duty towards some person, in whom therefore, a corresponding
right is vested. And conversely, every right must be a right against some person,
upon whom therefore, a correlative duty is imposed.
By and in the large, the courts have also accepted the line that rights and
duties are correlative. Thus, in Lake Shore & M.S.R. Co. v. Kurtz (1894) the
court said:
A duty or a legal obligation is that which one ought or ought not to do. Duty
and Right are correlative terms. When a right is invaded, a duty is violated.
The view that duties and rights are not necessarily correlative: This school
of thought is led by Austin and is supported by C.K. Allen. According to Austin,
every right implies a corresponding duty, but every duty does not necessarily
imply a corresponding right. Austins equation is as below: If R, then D. If D, then
may or may not R.
Examples:
(a) It is the duty of a judge to punish an offender who is guilty; but it cannot be
said that the duty of the judge implies a corresponding right on part of the
offender to be punished.
(b) Duties towards the public at large or toward indeterminate portions of the
public have no correlative rights such as the right to refrain from committing
a public nuisance.
According to Austin there are two kinds of dutiesrelative duty and absolute
duty. Relative duties are duties that have rights corresponding to them (for
example, the right to debt has the corresponding duty to pay the debt). On the
other hand, absolute duties do not have rights corresponding to them (for example,
a judges duty to punish does not imply a corresponding right on part of the
offender to be punished).
In conclusion, it may be said that duties in the strict sense of the term
have corresponding rights, but duties in the wider sense do not.
Activity 1
Can you recall some incident of human rights violation in the context of
religion? Write a note on the issue and its repercussions.
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Self-Assessment Questions
7. Fill in the blanks with appropriate words:
(a) Duties are of two kinds legal and _____________.
(b) When the law obliges us to do an act, the duty is called ________;
when the law obliges us to forbear from doing an act, the duty is
___________.
8. State whether the following are true or false:
(a) According to Salmond, there can be no right without a corresponding
duty.
(b) While relative duties have no corresponding rights, absolute duties
have rights corresponding to them.
1.6 UN and UN Charter
After World War I, the League of Nations was established in the year 1921 to
prevent such a war in the future. However, the League of Nations proved a failure
due to many reasons and soon World War II began in the year 1939, with the
world facing another event of large-scale mass destruction and violation of
humanity. Efforts for the creation of an international organization, in order to
establish peace, were being made even during World War II. A number of
conferences and meetings were held, in which many declarations were adopted
like the Declaration of St. James Palace (1941), Atlantic Charter (1941), United
Nations Declaration (1942), Moscow Declaration (1943), Tehran Declaration
(1943), Dumbarton Oaks Conference (1944) and San Francisco Conference
(1945). The result of these conferences and declarations was the establishment
of an international organization to maintain peace and security in the world and
in this way in the year 1945, United Nations came into existence on 24 October.
At the San Francisco Conference delegates of many nations expressed
that the United Nations should establish an International Bill of Rights. However,
the concept of the International Bill of Rights did not gain much ground but many
nations realized that it should be an obligation of the international community to
promote human rights. The conference resulted in the adoption of the United
Nations Charter containing some provisions which were general in nature and
vague in the context of promoting and protecting human rights and fundamental
rights.
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Just as the United Nations was established the Cold War broke out. For
decades, the Security Council was beleaguered by hostilities that marked the
USSR and US relations. This was reflected in the way in which the two countries
rejected those resolutions that the other supported. Because of this, the
enforcement mechanisms of the Security Council were seen as inadequate.
This scenario changed when the Cold War ended.
The US has made the provisions of the UN Charter binding and this is
manifest in Article 6, clause 2 of the US Constitution. It says treaties of which the
UN Charter is one are considered the supreme law of the land. Article 103 of the
UN Charter underscores that the charter will supercede all other conflicting
treaties. It says: In the event of conflict between the obligations of the Members
of the United Nations under the present Charter and their obligations under any
other international agreement, their obligations under the present Charter shall
prevail.
As the world witnessed another great war, the leaders of Britain, China,
the US and the USSR, were under severe pressure to discuss the formation of
a post-war organization. In 1944, representatives of the above countries met at
Dumbarton Oaks in Washington, DC, and prepared a blueprint for an international
organization. As the war was coming to an end, representatives of 50 countries
gathered in San Francisco, between April and June 1945, to draft the text of
what would be the foundations of international cooperation. This was the Charter
of the United Nations, signed on 26 June by 50 countries. Poland, the 51st country,
was not able to send a representative to the San Francisco conference but is
considered an original member. Even though the League was discarded, most
of its ideals and some of its structure were kept by the United Nations and outlined
in its Charter. The new world organization stressed on peace and social and
economic progress. This was adapted to suit the needs of a new and more
complex world that emerged after the war.
The Leagues Council was transformed into the Security Council consisting
of the five victors of the war as permanent members and ten other countries
serving two-year terms. The five permanent members were China, France, the
UK, the USSR, and the US. These five members were also given veto power.
This implies that these members have the power to obstruct any decisions
taken by the Security Council. This is important as the Security Council is the
main organ of the UN and is responsible for maintenance of peace. Also, the
decision of the Security Council is obligatory on all member states. Over the
years there has been a shift of balance of Big Powers with the joining of over
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one hundred new Member States, mainly non-Western. Along with these
changes, there are now demands that the Security Council be reformed.
Social activities listed in Leagues Covenant was changed into an activity
of economic and social cooperation. This was seen as essential to maintain
stability and peaceful relations among nations. A new organ, the Economic and
Social Council was formed under whose umbrella, specialized agencies in the
fields of labour, education, health, agriculture, development and many others
would be coordinated within the UN. As racism and repression abounded, the
need was felt to incorporate a new, peoples element into the Charter. That
element was of rights. Many sorts of rights, from the right to self-determination,
which encouraged the independence of colonized peoples, to general human
rights, which aimed to protect individuals, are enshrined in the Charter, the
Universal Declaration of Human Rights and two Covenants which have become
major, standard-setting additions to international law.
The League of Nations came into being after World War I. Out of the 42
original countries, 26 were non-European. At one time, 57 countries were
members of the League. The League was created out of the belief that a world
organization of nations could be effective in helping create peace in the world
and prevent another catastrophe like the World War from happening. It would be
possible for the world body to be a success as communication was now so
much easier. Also, people now had the experience of working together in
international organizations. The need was increasingly being felt for coordination
and cooperation for economic and social progress.
The League worked with two aims. First was the preservation of peace
through collective action. The Leagues Council was referred to for arbitration
and conciliation. Economic and military sanctions could be used as a last resort.
In other words, members undertook to defend other members from aggression.
Secondly, the League aimed to promote international cooperation in economic
and social affairs.
The Covenant of the League of Nations begins...
In order to promote international cooperation and to achieve international
peace and security by the acceptance of obligations not to resort to war,
by the prescription of open, just and honourable relations between nations,
by the firm establishment of the understandings of international law as
the actual rule of conduct among Governments, and by the maintenance
of justice and a scrupulous respect for all treaty obligations in the dealings
of organised peoples with one another, Agree to this Covenant of the
League of Nations.
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The commencement of World War II showed the failure of the League to
keep peace. The League had no military power of its own but depended on
contributions by members. These members, however, were not keen to use
sanctions, economic or military. Moral authority was insufficient.
The League did not get support from the big powers: the United States
crucially never joined; Germany was a member for only seven years from 1926
and the USSR for only five years from 1934; Japan and Italy both withdrew in the
30s.
The League then depended mainly on Britain and France, who did not like
to act forcefully. to work through this new organization. After working
independently, governments found it difficult to work through this new organization.
The Charter of the United Nations is the starting point on which the
organization is based. It is the guiding light to all that the organization does. It is
against this background that the UN composes its aims and objectives, along
with the rights and obligations of member states. It also inscribes the procedures
of the United Nations.
It was the terms as described in the United Nations charter that gave a
platform for the development of international human rights protection. The
preamble of the charter maintains that the members reaffirm faith in fundamental
human rights, in the equal rights of men and women and Article 1(3) of the
United Nations charter states that the UN seeks: to achieve international
cooperation in solving international problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion. Article 55 provides that:
The United Nations shall promote: a) higher standards of living, full
employment, and conditions of economic and social progress and
development; b) solutions of international economic, social, health, and
related problems; c) international cultural and educational cooperation;
d)universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion.
Article 56 of the charter is significant: All Members pledge themselves to
take joint and separate action in co-operation with the Organization for the
achievement of the purposes set forth in Article 55. This stipulation is obligatory
for the Organization and its members and constitutes a legal commitment for
all members of the United Nations. However, references to human rights in the
Charter are not specific. It does not have any definite legal rights, nor does it
have any authority with which it can protect these rights. In spite of this we
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cannot underestimate the fact that human rights have been adopted in the UN
charter. In fact the reason why human rights occupy such a significant position
globally is because they have been given such importance in the United Nations
framework. The UN Charter heralded the development of a broad array of
declarations, treaties, implementation and enforcement mechanisms, UN
organizations, committees and reports on the protection of human rights. The
rights advocated in the UN charter are codified and defined in the International
Bill of Human Rights, which composes the Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights.
Self-Assessment Questions
9. Fill in the blanks with appropriate words:
(a) Signed by 51 states, the UN charter formally entered into force on
_______1945.
(b) The League of Nations was founded immediately after ________.
10. State whether the following are true or false:
(a) The Charter of the United Nations is essentially the organizations
founding document.
(b) Germany was a member of the League of Nations for only three
years from 1926.
1.7 International Bill of Rights
The International Bill of Human Rights consists of the Universal Declaration of
Human Rights (adopted in 1948), the International Covenant on Civil and Political
Rights (1966) with its two Optional Protocols and the International Covenant on
Economic, Social and Cultural Rights (1966). Following the sanctions of an
adequate number of countries, the two agreements came into force in 1976.
Initially there were conflicting views of how the bill of rights should be
structured. In 1948, the bill was planned by the General assembly to include
UDHR, one Covenant and measures of implementation. Two documents were
then prepared by the Drafting Committee. One in the form of a declaration,
which would set forth general principles or standards of human rights; the other
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in the form of a convention, which would define specific rights and their limitations.
Draft articles of an international declaration and an international convention on
human rights were passed on by the Drafting Committee to the Commission on
Human Rights. In December 1947, at its second session, the Commission took
a decision to use the term International Bill of Human Rights to the series of
documents in preparation and established three working groups: one on the
declaration, one on the convention (which it renamed covenant) and one on
implementation. Deliberating on the observations made by governments, the
Commission amended the draft declaration at its third session, in May/June
1948. However, there was no time to consider the covenant or the question of
implementation. The declaration was therefore submitted through the Economic
and Social Council to the General Assembly, meeting in Paris.
1.8 Individual and Human Rights
The fading away of the feudal authoritarianism and religious conservativism that
was prevalent during the Middle Ages, coupled with the Renaissance in Europe,
led to the concept of human rights. The attempt of European scholars to form a
secularized version of Judeo-Christian ethics led to a clear definition of human
rights. Though ideas of rights and liberty have been around for very long, they
are quite distinct from the modern notions of human rights.
Jack Donnelly says that in the ancient world, traditional societies typically
have had elaborate systems of duties... conceptions of justice, political legitimacy,
and human flourishing that sought to realize human dignity, flourishing, or well-
being entirely independent of human rights. These institutions and practices are
alternative to, rather than different formulations of, human rights.
The perception of universal human rights was an alien concept in the
ancient world, including ancient India, ancient China and ancient Greece and
Rome. Slavery, in ancient times, was regarded as a natural condition. Medieval
charters of liberty such as the English Magna Carta were not charters of human
rights, instead they were more of a limited legal and political agreement to address
specific political circumstances. The Magna Carta was later mythologized in
the course of early modern debates about rights.
If we look back to recent European history, we can find the origin of modern
legal explanations of human rights. The Twelve Articles (1525) are considered
to be the first record of human rights in Europe.
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They were part of the peasants demands raised towards the Swabian
League in the German Peasants War in Germany. In Spain in 1542 Bartolom
de Las Casas argued against Juan Gins de Seplveda in the famous Valladolid
debate, Seplveda held on to an Aristotelian view of humanity as being divided
into classes of different worth. Las Casas argued in favor of equal rights to
freedom of slavery for all humans regardless of race or religion. In Britain in
1683, the English Bill of Rights (or An Act Declaring the Rights and Liberties of
the Subject and Settling the Succession of the Crown) and the Scottish Claim
of Right each made illegal a range of oppressive governmental actions. The
18th century saw two major revolutions taking place in the United States (1776)
and in France (1789), which lead to the adoption of the United States Declaration
of Independence and the French Declaration of the Rights of Man and of the
Citizen respectively, both of which established certain legal rights. Additionally,
the Virginia Declaration of Rights of 1776 encoded into law a number of
fundamental civil rights and civil freedoms. Declaration of the Rights of Man and
of the Citizen was approved by the National Assembly of France, August 26,
1789.
We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness.
United States Declaration of Independence, 1776
During the 18th and 19th centuries, philosophers such as Thomas Paine,
John Stuart Mill and G.W.F. Hegel developed philosophy of human rights. The
term human rights probably came into use sometime between Paines The
Rights of Man and William Lloyd Garrisons 1831 writings in The Liberator, in
which he stated that he was trying to enlist his readers in the great cause of
human rights.
In the 19th century, the matter of slavery was taken up as an issue of
human rights. Many reformers, like William Wilberforce in Britain, campaigned
the cause of abolition of slavery. Their efforts bore fruit in the British empire,
with the passing of the Slave Trade Act 1807 and the Slavery Abolition Act 1833.
Though the northern states of the United States had managed to abolish slavery
between 1777 and 1804, the southern states still could not let go of this institution.
Slavery now expanded to new areas and this was one of the prime reasons
which led to the American Civil War. Throughout the period after the war, when
rebuilding was taking place, several amendments to the United States Constitution
were made. These included the 13th amendment, banning slavery, the 14th
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amendment, assuring full citizenship and civil rights to all people born in the
United States, and the 15th amendment, guaranteeing African Americans the
right to vote.
Intense social change, relating to human rights, was brought about during
the course of the 20th century. Labour union laws came into effect in Western
Europe and North America. These laws granted workers the right to strike,
established minimum work conditions and forbade or regulated child labor. The
womens rights movement succeeded in gaining for many women the right to
vote. Colonial powers in many countries were ousted due to the national liberation
movement. The most notable among them was the movement led by Mahatma
Gandhi to free India from British rule. Racial and religious minorities who had
been exploited, rose in protest and succeeded in their mission. Among them
was the African American Civil Rights Movement, and more recently, diverse
identity politics movements, on behalf of women and minorities in the United
States.
It was the establishment of the International Committee of the Red Cross,
the 1864 Lieber Code and the first Geneva Convention in 1864 that paved the
way for International humanitarian law. It got a boost after the two World Wars,
when the world watched helplessly as inhuman atrocities were committed against
mankind. It was the gross violations of human rights that spurred the movement
towards modern human rights. The League of Nations was formed in 1919 Its
goals included disarmament, prevention of war through collective security, settling
disputes between countries through negotiation and diplomacy, and improving
global welfare. Enshrined in its charter was a mandate to promote rights, many
of which were later included in the Universal Declaration of Human Rights.
At the 1945 Yalta Conference the Allied Powers voiced the need for a new
body that would replace the League of Nations. Thus the United Nations came
into being and has since played an important role in international human-rights
law.
In the years after the World Wars, the United Nations and its members
developed much of the discourse and the bodies of law that now make up
international humanitarian law and international human rights law.
Many key ideas that lent vitality to the movement rose out the Second
World War and the indignities suffered during the Holocaust. In 1948, the Universal
Declaration of Human Rights was adopted by the United Nations General
Assembly in Paris. The notion of universal human rights was a new one. Ancient
societies had elaborate systems of duties... conceptions of justice, political
legitimacy, and human flourishing that sought to realize human dignity, flourishing,
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or well-being entirely independent of human rights. The modern concept of
human rights came about in the early Modern period, parallel with the European
secularization of Judeo-Christian ethics. The concept of natural rights heralded
the human rights discourse. Natural rights appeared as part of the medieval
Natural law tradition, shot into the limelight during the Enlightenment thanks to
philosophers such as John Locke, Francis Hutcheson, and Jean-Jacques
Burlamaqui, and featured prominently in the political discourse of the American
and the French Revolutions. It was the foundation on which the modern human
rights movement grew during the second half of the twentieth century. Later, it
became a crucial issue of debate in the world agenda.
All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.
..Article 1 of the United Nations Universal Declaration of
Human Rights (UDHR)
Self-Assessment Questions
11. Fill in the blanks with appropriate words:
(a) All human beings are _______and equal in dignity and rights.
(b) At the 1945 _________, the Allied Powers agreed to create a new
body to supplant the role of the League of Nations.
12. State whether the following are true or false:
(a) The basis of most modern legal interpretations of human rights can
be traced back to recent European history.
(b) Human rights are commonly understood as alienable fundamental
rights to which a person is inherently entitled simply because she or
he is a human being.
1.9 State Responsibility in International Law
The laws of state responsibility are the principles governing when and how a
state is held responsible for a violation of an international obligation.
Instead of laying down any specific commitment or responsibility, the rules
of state responsibility decide when an obligation has been violated and what are
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the legal outcomes of that violation. It means that basic issues of responsibility
are dealt by secondary rules and a solution is available for violation of primary or
substantive rules of international law, such as with respect to the use of armed
force. Since these rules are quite general, they can be examined without the
help of primary rules of obligation. They determine when an act will be labeled
as internationally wrong and the situations under which actions of officials, private
individuals and other entities may be attributed to the state, general defences to
liability and the consequences of liability.
Previously, the theory of the law of state responsibility was still in a nascent
stage. However, a change has come about due to the adoption of the Draft
Articles on the Responsibility of States for Internationally Wrongful Acts (Draft
Articles) by the International Law Commission (ILC) in August 2001. The Draft
Articles are a combination of codification and progressive development. The
International Court of Justice has often quoted these and they have been well
received. Though the articles are not specific, they may not be suitable in all
cases. Particular treaty regimes, such as the General Agreement on Tariffs and
Trade and the European Convention on Human Rights, have established their
own special rules of responsibility.
The onus for violation of international obligations lies with each state and
they are held accountable for the acts. This is the basic principle of state
responsibility. State responsibility also requires states to take accountability for
any illegal actions and make good the harm they may do others.
This is a fundamental principle, which forms part of international customary
law, and is binding upon all states.
The policy on state responsibility does not indicate the subject matter of
a states obligations under international law, for example that torture is forbidden,
or that a state must provide medical services to the civilian population. These
obligations are specified in numerous international law treaties and in international
customary law.The rules on state responsibility simply classify when a state
can be held responsible for violating those obligations, and what is the penalty if
it fails to discharge its responsibility.
The international law allows certain rights and duties, which states, other
international entities and individuals can enjoy. However, when these obligations
are breached, individuals as well as states may have to bear the brunt of it.
We can thus identify that states have responsibilities:
1. Towards their own citizens, and people under their jurisdiction, based on
human rights law.
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2. Towards civilians, including occupied people, as well as combatants of
the other party, during armed conflicts under International Humanitarian
Law (IHL).
3. Towards other states, or international organizations (e.g. UN), based on
general principles of international law, as well as specific bilateral and
multilateral conventions that they have signed and ratified, including human
rights and IHL treaties.
4. Towards the international community as a whole when it comes to very
important rules, such as the prohibitions on genocide and torture.
It can be seen that the state is not responsible for all acts of individuals.
The state will be held responsible only if the breach committed is linked to that
state. The state must be accountable for the individual who committed the
violation. If this condition does not hold, then only individual criminal responsibility
s at risk.
There are some state organs or institutions which are characteristic of
the state and their acts are the responsibility of the state. These could be organs
that exercise legislative, executive, judicial or any other functions (parliament,
police, court etc.).
Armed forces is an organ whose activities are directly connected to the
state. Therefore, all people associated with this are the responsibility of the state
and the state is responsible for their action irrespective of whether they operate
in the home country or abroad.
The acts of persons or entities exercising elements of governmental
authority are attributable to the state. This rule would, for example, cover private
corporations, which are authorized by the state to exercise certain public
functions in prisons, checkpoints etc.
A violation is only attributable to the state if the organ or person, from the
categories above, acts in his or her formal public capacity. However, attribution
can be made even if the person or organ exceeds its authority or does not follow
instructions.
According to International Humanitarian Law (IHL), a party to the conflict
shall be responsible for all acts by persons forming part of its armed forces
(Article 3 Hague Regulation IV, Article 91 IAP). By this, it is clear that state
responsibility extends not only to official capacity but also to the private actions
of armed forces. This indicates that when a war is on, it is assumed that each
soldier is on duty and all his actions will be under scrutiny of the state, including
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private actions. For example, sexual crimes of a certain gravity committed by a
soldier during leave will therefore, result in a violation of his or her states
international obligations (in parallel to individual criminal responsibility).
In case there is an offence which is not a feature of the state, it will still be
attributable to it if the state acknowledges and assumes responsibility for the
behaviour in question as its own.
A clear example of this would be if the state publicly praise, and gives
approval to a violation of IHL, committed by a person or group, which did not
initially act under state orders. The conduct of a person, or group of persons,
shall be considered an act of a state if she or he is in fact acting on the instructions
of, or under the direction or control of another state when carrying out a violation.
This point assumes significance when we scrutinize the actions of terrorist
groups. More often than not, these groups are known to be under the wing of a
state and are funded by it and are provided equipment, etc. to carry out their
activities. The justification for the rules on control is to ensure that states do not
deliberately avoid accountability by assigning illegal tasks to individuals or any
other body, which are not official employees of the state.
The main prerequisite for a state to be responsible for non-state actors is
the control it exerts over the person who perpetrates the crime. The question
then arises as to what act of the state constitutes control. Is the state supposed
to have overall control over the group or does it have to concern itself with each
and every activity carried out. As there is no specific legal answer to this, the
responsibility of the state will have to be tackled on a case-to-case basis. It is
also the duty of the state to be attentive and alert to see that suitable actions are
taken to stop violations and penalize the wrong-doers. The state is held
responsible if due to slackness on its part, violations do occur.
In a situation where the state is aware that there is a probability of a violation
taking place, and it does nothing to prevent that, it is considered a violation of its
international responsibility. If, knowingly, the state turns a blind eye to acts of
individual persons, it can be held accountable.
The principle of due diligence is however applicable also when private
actors acts independently from the state - a state can be held responsible even
if the identity of the perpetrators is not known to it. The duty to take due diligence
may be seen as falling under the obligation in Common Article 1 of the Geneva
Conventions to ensure respect of the Conventions.
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Activity 2
"Within the sphere of your own rights, your freedom is absolute."Discuss.
Self-Assessment Questions
13. Fill in the blanks with appropriate words:
(a) The basic principle of ___________ in international law provides that
any state that violates its international obligations must be held
accountable for its acts.
(b) Particular treaty regimes, such as the General Agreement on Tariffs
and Trade and the European Convention on Human Rights, have
established their own special rules of __________.
14. State whether the following are true or false:
(a) The state is not responsible for the private actions of armed forces.
(b) The laws of state responsibility are the principles governing when
and how a state is held responsible for a breach of an international
obligation.
1.10 Indian Values and Human Rights
India is a large multicultural society where a number of faiths, cultures and belief
systems coexist. Although the majority of the population consists of Hindus,
there are sizeable populations of Muslims, Christians, Sikhs, Jains and Buddhists.
Even within Hinduism, there are numerous sects and cults. In addition, different
states have different languages and dialects, and there are vast differences in
terms of culture and attitudes in different parts of the country. Such a mix of
faiths and cultures makes India a perfect example of unity in diversity. However,
despite the diversity of religions and culture, there has always been an emphasis
on duty and respect in Indian values. Relations were viewed from a moral
perspective in terms of mutual obligations within an orderly society. Although the
legal codification in terms of human rights applicable to all citizens is a relatively
new phenomenon, Indian values have stressed the role of the ruler in protecting
his subjects and the importance of living up to ones place in society.
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Ahimsa and human rights
Ahimsa is a key Indian cultural value that ensures rights by implication and
interpretation. The concept of Ahimsa arose out of Buddhist philosophy, which
did not believe in divinity. As opposed to the Hindu tradition, it was rooted in a
republican mould. It reported of a golden age, which gradually decayed through
the institution of private property and social evils. People then elected one from
among themselves to rule over them and ensure an orderly society. This concept
implies that the ruler is chosen by the people and is not appointed by God with
absolute powers. Thus, the emphasis is on sovereignty of the people, which
stresses the rights of individuals in society. Ahimsa, which gives every life a
right to live, is really a celebration of the sovereignty of the people.
Self-Assessment Questions
15. Fill in the blanks with appropriate words:
(a) A mix of faiths and cultures makes India a perfect example of unity in
_______.
(b) The concept of ahimsa emerged out of the ________tradition.
16. State whether the following are true or false:
(a) According to Buddhist philosophy, ahimsa, which gives every life a
right to live, is a reflection of the belief in the sovereignty of the people.
(b) Despite the diversity of religions and culture, there has always been
an emphasis on duty and respect in Indian values.
1.11 Emerging Dimensions in Human Rights: Basic Concepts
Every day 1.3 million people in India (of which more than80 per cent are Dalit
women) are forced to clean human excrement with their bare hands for little
to no wages. Known as manual scavenging, the practice violates human
dignity and must be eradicated.
The present world is witnessing unprecedented scientific, technological
and economic development, accompanied by a high degree of emphasis on
materialistic satisfaction. The constant thirst for more is leading to greater
disparitiesso much so that people are rightly beginning to question if this is
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real progress! Many people are still not able to fulfill their basic needs; they are
not getting just and equal treatment in the various spheres of life. They suffer
due to in unjust wages, malnutrition, poor health services and undemocratic
distribution of educational facilities. On an international level, war, use of chemical
weapons, terrorism, racism, poverty, ruthless destruction of natural resources
and unfair distribution of economic wealth are some of the numerous indignities
bestowed on nature and humans. Human rights include civil and political rights.
Human rights are based on the following common values:
Human dignity
Liberty
Equality
Justice
Unity
Ethics
Morals
Dignity
Every human being must have the right to live in dignity. It is a gauge to determine
the quality and honour of the people, and measure the functioning of human
rights. People erroneously measure the dignity of human beings by their
economic status. The dignity of human life is a complex phenomenon of which
economic status is only a part. It includes investigating their health, the food
they eat, their education, liberty, equality, and so on. According to Plato, the
concept of justice is an all-encompassing political virtue so that a good society
and just society are one and the same. Thinkers Hobbes and Mill propagated
that all men are equal by nature.
Liberty
Liberty is a human right and gives people the right to act, believe, and express
themselves the way they want so long as they do not cause physical or
psychological injury others; do not damage the environment, and do not violate
other peoples liberties and freedom. Liberty allows us to be protected physically
and legally, to be free from unjust exploitation, confinement, and forced labour.
Did you know?
The Statue of Liberty is one of the worlds most enduring symbols of democracy
and freedom. The statue was a gift from the French government for the 100th
anniversary of Americas Independence.
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To have and enjoy liberty, it is essential to be protected and free from any
unjust control, or interference from religious or government elected, appointed,
or employed officials. Nations who possess a Bill of Rights guarding and
protecting the liberty of their citizens must protect it vigilantly. The boundaries of
ones liberties are defined by the rules and guidelines of reason, common sense
and ethical standards. Liberty is a word with many meanings. Every language in
the world has a word for liberty. There are different kinds of liberty:
Economic liberty - to follow our own vocation in life
Personal liberty - to come and go as we please or to follow our own
conscience
Political liberty - to vote, participate in, and change our form of government
Civil liberty - to enjoy certain unregulated, constitutionally protected
freedoms
Social and cultural liberty - to choose our own associates and be treated
respectfully
Equality
Equality refers to equality before the law. It can be social, gender and economic.
These are explained in the following section
Social equality: By social equality we mean that people who live in a society or
in a particular group have the same status in certain respects. It refers to equal
rights under the law, which include security, voting rights, freedom of speech
and assembly, and property rights. It also encompasses notions of economic
equity, such as access to education, health care and other social securities.
There can be no discrimination in terms of equality on grounds of gender, age,
sexual orientation, caste or class, income or property, language, religion,
convictions, opinions, health or disability.
Gender equality: Gender equality has been defined in terms of human rights,
especially womens rights, and economic development. The United Nations
International Childrens Fund (UNICEF) defines gender equality as levelling the
playing field for girls and women by ensuring that all children have equal
opportunity to develop their talents. The United Nations Population Fund avers
that women have a right to equality. Gender equity is one of the goals of the
United Nations Millennium Project, to end world poverty by 2015. The project
claims that every goal is directly related to womens rights, and societies where
women are not afforded equal rights as men can never achieve development in
a sustainable manner.
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The progress towards gender equality, especially in Western countries,
began with the suffragette movement of the late nineteenth century. This was
followed by a modification in womans property rights in marriage. The 1960s
saw a leap in the progress for gender equality with womens liberation and
feminism.
This led to changes in laws that related to particular issues or to gender
discrimination. There is an amendment in the ideas relating to equal opportunity
for boys and girls in education. In many countries this has led to changes in
social views, including equal pay for equal work, and equal opportunity of
employment for men and women. Many countries now permit women to serve
in the armed forces, the police force and in the fire-fighting service. Evidently, an
increasing number of women are active in politics today and occupy high
positions in business. On the other hand, men are taking on jobs that were
regarded as bastions for women such as nursing. On the home front, men are
increasingly accepting their responsibilities of child-rearing, which has so far
been labeled as exclusively mothers domain. We come across many women
today who do not hesitate in holding on to their maiden surnames after marriage
and those who feel free to pursue their careers after marriage.
This however is not true of all societies and can prominently be seen in
the West. The movement towards greater gender equality will lead to greater
economic prosperity. A 2008 United Nations-sponsored report cautioned
countries in the Arab world that deny equal opportunity to women that this
disempowerment was hampering these nations in their efforts to reach the first
rank of global leaders in commerce, learning and culture.
Economic equality: Every person should have equal opportunity to work. They
should have a chance to do work of any kind and not be discriminated on grounds
of sex, religion, caste and creed. Economic equality includes the following
aspects:
Equal opportunity
Equal pay for equal work
Hygienic and healthy working conditions
Fair opportunities for further progress
Article 16 of the Constitution of India grants equal opportunity in
employment. It is a Fundamental Right. Article 39(d) provides for equal pay for
equal work.
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Justice
Justice is different from benevolence, charity, mercy, generosity or compassion.
In numerous cultures, justice is linked with fate, reincarnation or divine
providence. The law provides that justice means providing maximum welfare to
all individuals. Justice requires that some people should give up a little of what
they have for others, so long as everyones good is taken impartially into account.
In the field of human rights it is related to the idea of providing equality before the
law. Everyone must be equal before the law. They should be able to get justice
through the legal system when required. Article 32 of the Constitution of India
provides this as a Fundamental Right.
Unity in Diversity
Regrettably, the world today is facing a political and social climate that is marred
by differences, disunity and destruction instead of unity and productive and
constructive energy that is needed to sustain human societies. These negative
forces have widened the gap between people and created disagreeable attitudes
towards each other. Unity in diversity suggests unity in spite of diversity. It is
only when people live harmoniously with the natural environment that they can
tackle ongoing difficulties with each other as well. It presupposes social trust
among people. Unity in diversity includes biodiversity and cultural diversity.
Biodiversity: Biodiversity refers to the variation of life forms in an ecosystem,
biome or on the entire earth. The ecological context of the concept is based on
the knowledge that biological diversity is vital for the healthy existence of
ecosystems. Biodiversity is often a gauge of the health of biological systems,
and loss of biodiversity is an indicator of damage to an ecosystem. The survival
of life on the planet is dependent on diversity of ecosystems. Today, global
biodiversity is under threat from various forces such as loss of habitat due to
developmental activities, poaching, and clash between man and nature. A number
of species of plants and animals are being destroyed through acts such as
burning of rainforests to make more arable land available. In some cases,
environments are so sensitive that even minor changes result in unforeseen
consequences such as extinction of some species.
Cultural diversity: Cultural diversity refers to the variety of human societies or
cultures in a specific region, or in the world as a whole. Intermingling of cultures
allows people to learn more about each other, thus increasing awareness and
understanding of the diversity within the human community. The greater the
cultural diversity, the stronger are the attachments to ethnic roots. According to
the United Nations, cultural diversity can only thrive where freedoms and human
rights are safeguarded. These include freedom of expression, information and
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communication, freedom from discrimination of any kind, as well as the ability
of individuals to choose cultural expressions, and their right to participate or not
to participate in the cultural life of given communities.
Self-Assessment Questions
17. Fill in the blanks with appropriate words:
(a) The ________of a human being is an essential concept in society
because through it the quality and honour of the people can be
determined.
(b) In numerous cultures, ________has traditionally been associated
with fate, reincarnation or divine providence.
18. State whether the following are true or false:
(a) In India, the Constitution of India under Article 15(3) and 16(4) provides
for the upliftment of women in the country through reservation in
education.
(b) Promoting gender equality does not affect economic prosperity.
1.12 Summary
Let us recapitulate the important concepts discussed in the unit:
Human rights are defined as the basic rights and freedoms that all people
are entitled to, regardless of nationality, sex, national or ethnic origin, race,
religion, language, or other status.
All individuals have a strong set of beliefs that they consider to be right or
wrong. These are known as values. These values form the basis of our
attitude, behaviour and actions.
Human rights are based on the common values of human dignity, liberty,
equality, justice, unity, ethics and morals
Human rights education refers to the teaching of human rights, including
its history, theory, and law, in schools and educational institutions, as well
as awareness generation among the general public.
The United Nations has initiated and encouraged human rights awareness
campaigns in order to promote particular human rights issues. The
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activities carried out during these campaigns include the development of
publications, studies and programmes with the involvement of United
Nations bodies, States, other international, regional and local organizations
and civil society
The Charter of the United Nations is essentially the organizations founding
document. It guides everything the organization does, setting out its aims
and objectives, along with the rights and obligations of member states. It
also establishes the organs and procedures of the United Nations.
The International Bill of Human Rights consists of the Universal Declaration
of Human Rights (adopted in 1948), the International Covenant on Civil
and Political Rights (1966) with its two Optional Protocols and the
International Covenant on Economic, Social and Cultural Rights (1966).
Following the Second World War and the indignities of the Holocaust, the
Universal Declaration of Human Rights was adopted by the United Nations
General Assembly in Paris, in 1948.
The laws of state responsibility are the principles governing when and
how a state is held responsible for a breach of an international obligation.
Ahimsa, which gives every life a right to live, is a reflection of the belief in
the sovereignty of the people. It is an Indian cultural value that ensures
rights by implication and interpretation.
1.13 Glossary
Political doctrine: A policy, position or principle advocated, taught or put
into effect concerning the acquisition and exercise of the power to govern
or administrate in society
Bourgeois society: Middle class
Autocratic: Characteristic of an absolute ruler or absolute rule; having
absolute sovereignty
Vigilance: the process of paying close and continuous attention
Occupied territory: Territory under the authority and effective control of
a belligerent armed force
Equality: The state of being equal, esp. in status, rights, and opportunities
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Ethics: The moral factors that guide human conduct in a particular society
or practice
Human rights education: The teaching of human rights, including its
history, theory, and law, in schools and educational institutions, as well as
awareness generation among the general public
Human rights: Basic rights and freedoms that all people are entitled to,
regardless of nationality, sex, national or ethnic origin, race, religion,
language, or other status
Liberty: The state of being free within society from oppressive restrictions
imposedby authority on ones way of life.
Morality: The social norms and values that guide the interaction among
individuals, their fellow human beings, communities, and the environment.
Duty: An act or a course of action that is required of one by position,
social custom, law, or religion.
Inalienable: Incapable of being alienated, surrendered, or transferred to
another; not alienable; as, in inalienable birthright
Duty: An act or a course of action that is required of one by position,
social custom, law, or religion.
Inalienable: Incapable of being alienated, surrendered, or transferred to
another; not alienable; as, in inalienable birthright.
Indigenous people: Ethnic groups who are native to a land or region,
especially before the arrival and intrusion of a foreign and possibly
dominating culture. They are a group of people whose members share a
cultural identity that has been shaped by their geographical region.
Right: Moral principle defining and sanctioning a mans freedom of action
in a social context
1.14 Terminal Questions
1. Explain the theory of natural right.
2. Explain religion and natural law as sources of human rights.
3. What are the characteristics of human rights?
4. Elaborate the concept of duty in the Indian Constitution.
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5. Discuss liberty as a human right.
6. How is the problem of gender equality being tackled in todays world?
1.15 Answers
Answers to Self-Assessment Questions
1. (a) Paine; (b) Hugo Grotius
2. (a) True; (b) False
3. (a) John Locke; (b) Universal Declaration of Human Rights
4. (a) True; (b) True
5. (a) Group; (b) Magna Carta
6. (a) True; (b) False
7. (a) Moral (b) Positive; negative
8. (a) True; (b) True
9. (a) 24 October; (b) World War I
10. (a) True; (b) False
11. (a) Born free; (b) Yalta Conference
12. (a) True; (b) False
13. (a) State responsibility; (b) Responsibility
14. (a) False; (b) True
15. (a) Diversity; (b) Buddhist
16. (a) True; (b) True
17. (a) Dignity; (b) Justice
18. (a) True; (b) False
Answers to Terminal Questions
1. Refer to Section 1.2
2. Refer to Section 1.3
3. Refer to Section 1.4
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4. Refer to Section 1.5.1
5. Refer to Section 1.11
6. Refer to Section 1.11
1.16 Further Reading
1. De Schutter, Olivier. International Human Rights Law: Cases, Materials,
Commentary. New York: Cambridge University Press, 2010.
2. Meckled-Garca, Saladin, Cali, Basak. The Legalization of Human Rights:
Multidisciplinary perspectives on human rights and human rights law. New
York: Routledge, 2006.
3. Ishay, Micheline. The History of Human Rights: From Ancient Times to
the Globalization Era. Los Angeles: University of California Press, 2004.
References
Grotius, Hugo. On theLawsof War and Peace. Montana: Kessinger Publishing.
Hans Reiss (ed.),Kant: Political Writings. Cambridge: Cambridge University Press.
Bentham, Jeremy. Anarchical Fallacies in The Works of Jeremy Bentham, Volume 2. New
York: W. Tait.
Paine, Thomas. The Rights of Man. Bristol : Jordan Publishing.
Locke, John. Two Treatises of Government, Chapter 7, Section 87-89.London: J. Whiston.
The Ayan Rand Letter.A Nations Unity. New York: Plume.
United Nations Universal Declaration of Human Rights
Unit 2 Principles and Theories of Human Rights
Structure
2.1 Introduction
Objectives
2.2 Evolution of the Human Rights Concept
2.3 Approaches to Human Rights
2.4 Theories and Principles
2.5 A Humanist Alternative
2.6 The Theoretical Foundation of Human Rights
2.7 Internationalization of Human Rights
2.8 Critical Theories of Law
2.9 Summary
2.10 Glossary
2.11 Terminal Questions
2.12 Answers
2.13 Further Reading
2.1 Introduction
The concept of human rights is significant in the development of countries and
their citizens. Human rights are interdependent in nature as all human beings
are a part of a larger framework. Human rights in layman terms can be understood
as being inalienable rights of an individual who is entitled to these rights for the
simple reason that he or she is a human being. In order to understand the concept
of human rights it is imperative to understand its origin and evolution along with
the different theories which evolved with respect to human rights over a period
of time.
Objectives
After studying this unit, you should be able to:
Recall the evolution of the human right concept
Describe the approaches to human rights
Interpret the theories and principles of human rights
Recognize the role of religion and morality in human rights
Identify the humanist alternative in human rights
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2.2 Evolution of the Human Rights Concept
In the course of human history, human rights are regarded as an evolving
phenomenon. Throughout the ages it has been observed that the concept of
human rights has been sophisticatedly linked to laws, customs and religion.
This complex amalgamation is considered key to mankind. In history, the very
first example of the codification of laws with respect to individual rights is seen
in the Code of Hammurabi, which came into existence four thousand years ago.
The sixth Babylonian king Hammurabi enacted the code which comprised of
282 laws. These laws were considered a model for the legal system and protected
people from arbitrary punishment and persecution. However, underlying flaws
in the code have come to the notice of some historians who believe that the
problems in Hammurabis code are due to its cause and effect nature and that
it had no provision for subjects of that were relevant to human rights such as
race, religion, beliefs.
The concept of human rights gained a more meaningful existence during
the ancient Greek period. It was seen that human rights gained a substantial
position in the legal process rather than the usual practice of preventing arbitrary
persecution. The Greek philosophers Socrates and Plato defined natural law
as a law that reflected the natural order of the universe and most importantly the
will of gods who controlled nature. This thought has been beautifully described
in Greek literature in the episode where Creon reproaches Antigone for defying
his command to not bury her dead brother and she replies that she acted under
the laws of gods. The natural rights of a person were respected in ancient Rome
and the Roman jurist Ulpian believed that every person had his own natural
rights irrespective of whether he was a Roman citizen or not.
However, the natural rights of those days greatly differed from what we
call as human rights now. The practice of having slaves is a classic example. In
the ancient days, it was perfectly legal but it is an offence under the eyes of the
law today. It would be an outright violation of the right of freedom and equality of
an individual.History also witnesses more emphasis on individuals during the
middle ages and later during Renaissance, a period which saw the decline of
powers vested in the church. During the course of history, we find that there
was a gradual lax in the fierce control exhibited by the church which actually
resulted in a shift from the existing feudal or monarchic social setup. This has
led to the emergence of the individual and we find that individual expressions
began to thrive in the society
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The idea of positive law gave birth to the next fundamental philosophy of
human rights. Thomas Hobbes, an English philosopher known for his political
thought viewed natural law as to not only being vague and hollow, but being
available to different interpretations. Hence, under positive law, human rights
can be given, taken away and modified according to the need and requirement
of the society. Jeremy Bentham, who was a leading theorist in Anglo-American
philosophy of law, aptly sums up the nature of positive laws:
Right is a child of law; from real laws come real rights, but from imaginary
law, from laws of nature, come imaginary rights.Natural rights is simple
nonsense.
The transfer of human rights into positive rights with these rights becoming
concrete laws is best described in different legal documents which discuss
these rights in great detail. To name a few of these exemplary documents which
mention positive rights are the British Magna Carta, 1215; French Declaration
of the Rights of Man, 1789; American Bill of Rights, 1789; and The Geneva
Convention, 1864.
Many erudite scholars of human rights gave their views on the notion and
understanding of human rights, which have been mentioned below.
Plato believes in the concept of universal truth and virtue. According to
him human rights are universal and therefore are above the laws of individual
state. Aristotle was of the view that different social classes existed in the world
vis--vis accepting the fact that an underclass or slave class will always prevail
and thus considered this perfectly normal. In simpler terms suggesting that self
preservation required fundamental human rights.
Positive law opines that the idea of law and human rights come from the
state. The positive law theorists believed that the formulation of strong laws was
essential for the protection of human rights. But they differed from previous
viewpoints in one significant aspect. It was accepted that positive law can be
given or taken away by the state and hence, there was no universality associated
with it.
The consecutive changes in positive law were made to accommodate
the fact that the constitution is the legal structure for functioning of the society
and the states laws were derived from it. As the constitution could only originate
from natural law, the natural right of self preservation was obviously embodied
in the constitution and thus, the states power cannot negate the inalienable
human rights. This, therefore, further suggested that the state should safeguard
individuals from the actions of others which may hamper their freedoms. This
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also speaks about citizens empowerment and their right to revolt if they felt that
the state was abusing its power. The ideas behind the French and American
Revolutions were influenced by this and subsequently led to the development of
their new nations.
The social contract theory designed by Rousseau stated that all individuals
in a society and entered into a contract to form a civilized society in exchange of
equality from the government.
In the opinion of Kant, each individual should be aware of other peoples
freedom and should not infringe on the freedom of others. Every individuals
action should be conducive to the social setup at large and should be in a pattern
to accommodate the rights of everybody else. However, Mill was strongly opposed
to such utilitarian concepts and in his view all this was just another form of
tyranny by the majority.
These rights are viewed in an entirely different context by Marks and Engels,
the Fathers of Communism. According to them, these rights were totally
unconnected to the grim realities in exploitation of the working class. Marx values
the institution of government in the optimum distribution of liberalism among its
people and therefore should not be regarded as interference. When it comes to
ownership of private property, equality is deemed more significant than liberty.
However, revolution is the only fundamental right that exists under their system.
Benthams rejection of natural rights has been disregarded by Dworkins
philosophy specifies that human rights are a creation of politics which try to
treat people with equality. It is therefore not absolute and universal in nature. As
per Dworkins philosophy all members of society have the same rights irrespective
of their social status and utilitarianism ignores the rights of minorities under the
doctrine of greatest good which is considered a threat to individual human rights.
Human rights, specifically those that relate to individual liberty and equality
had very compassionate support from Rawls and he maintained that these rights
should be for all. In his view, the state should distribute everything equally to all
the people and unequal distribution should be accepted only if and when it would
be of benefit to the economically lower classes. He also emphasizes that fair
human rights can only be formulated by a group of reasonable people living
amicably in society. Since these western industrialized principles may not be
appropriate anywhere else, they seem to be influenced by cultural relativism.
In layman terms, human rights can be defined as freedoms and rights of
individuals in society. Human rights are a set of written laws which confirm an
individuals freedom and the boundaries pertaining to it. The concept of written
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laws has been seen since times immemorial. In the

sixth century BC, Cyrus the
Great of Persia issued the Cyrus Cylinder that took up the causes like freedom
from slavery, freedom of religion etc. after the conquest of Babylon. That was
the first instance of a set of laws written for the sake of human rights.
The signing of the Magna Carta was a major milestone in the history of
human rights and it was the turning point in the western world as far as the
human rights are concerned. It was in the Magna Carta, a reigning English
monarch King John accepted to set the rights of the people into the law of the
land.
Here, it is important to realize that human rights is a relatively modern
concept and its major forerunner was the discourse of natural rights in different
societies of the ancient world. Some philosophers opine that Natural Rights
may be a more correct terminology instead of Human rights as it would cover all
livings things and not just human beings. In spite of this, human rights are
considered a major civilizing cornerstone in the 20
th
century.
The Declaration of the Rights of Man and of Citizen was a significant
document that defined the individual and collective rights of a person. This
particular outcome of the French Revolution originated from the Age of
Enlightenment of the 18
th
century which spread from Europe to the entire world.
The one bleak flaw in this document is that it does not mention or define the
status of slaves and women
The United Nations came into existence after the Second World War and
its main task was to establish rights for all individuals, irrespective of the fact as
to where they lived. This led to the documentation of the Universal Declaration
of Human Right (UDHR). The United Nations General Assembly adopted UDHR
in the 1948 and it was headed by Eleanor Roosevelt.
The UDHR was drafted after consultations with great philosophers of that
time including Mahatma Gandhi and was accommodative of the social, cultural,
economical, civil and political rights. It also needs to be understood that the
UDHR was not a law and no nation was legally bound to follow these rights,
although, many nations have signed treaties agreeing with the principles of
UDHR. History has witnessed laws being formulated through demands made
by the rights movement.
The International Covenant on Civil and Political Rights was adopted in
1966 along with its two optional protocols apart from the UDHR by the United
Nations and this made a significant impact on the International Bill of Human
Rights that followed.
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There are many organizations that lend their voice to the advancement of
human rights. In many countries, human rights laws are enacted in some form
or the other. There are many issues relating to human rights which need to be
addressed due to the ever increasing population of the world which make things
complex. Looking back at history it can be said that much has been achieved in
terms of human rights, however there is still much more to conquer.
Article 4 of the Declaration of the Rights of Man has been approved by the
National Assembly of France, August 26, 1789 and states the following, Liberty
consists in the freedom to do everything which injures no one else; hence the
exercise of the natural rights of each man has no limits except those which
assure to the other members of the society the enjoyment of the same rights.
These limits can only be determined by law.
The seventeen articles in this document could easily be construed as an
elaboration of the oft-quoted statement from the American Declaration of
Independence of July 4th, 1776 We hold these truths to be self-evident, that all
men are created equal, that they are endowed by their Creator with certain
inalienable rights, that among these are Life, Liberty and the pursuit of Happiness.
The IICPR as well as the International Human Rights Bill emulate the Golden
Rule which emphasizes that individuals hold the right to do as they please as
long as the rights of other individuals are not obstructed. Though any attempt to
identify its origin would be futile as it is a very ancient piece of wisdom, the rule
which states do unto others as you would have them do unto you makes a lot of
sense in everyday life.
As all the basic human rights are inherent and inalienable, instead of tracing
the evolution of human rights, it would be useful if their evolution in terms of their
application in the legal context as rule of law and government was traced.
One of the first philosophers to have coined the term Civil Disobedience
would be Henry David Thoreau. He was in favour of non-violent resistance against
the government in order to fight for their rights as individuals thus coercing the
government to comply by the Golden Rule.
The roots of religion strictly lay in the philosophy of righteous human
behaviour. As an institution, religion first seeks to instruct individuals to have
mutual respect for human dignity and keeping social conduct within boundaries
of universally accepted moral behaviour. These policies are considered essential
attributes of people. Irrespective of ones religion, all religions suggest that all
individuals are entitled to respect and dignity.
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There are numerous examples of human rights abuses in history which
are the product of a corrupt and autocratic authority. In European history, in a
time when kings and queens ruled, it would not be incorrect to conjecture that
that rights of the peasant classes were restricted because of the extortion and
exploitation they experienced. The serf classes were expected to serve in armies
and provide taxes. Against this, the American Declaration of Independence was
deemed a history-making document, for it contained the basic doctrines of an
independent state which promotes the rights of an individual and rejects the
feudal nature of government. It can be rightly said that the seeds of modern
struggle to uphold human rights lay in the American Declaration of Independence.
In contemporary times, a document was constructed which emphasized
on the upholding and enforcing of human rights. This document was drawn by
the founding members of United Nations in 1945 and was titled Universal
Declaration of Human Rights. Articles 18 and 19 of this document outline the
individuals right to freedom of thought, conscious, and religion and the freedom
of expression of opinions and ideas in great detail.
The process of evolution is not instant and therefore the concept of human
rights evolved over a period of time. It has to be understood that human rights is
not something people are born into, it is something that they grow into. Therefore,
every civilized societies, should be constantly reminded about concerns
regarding how to raise children, how to live in a society, morality, choice and
consequences.
The evolution of human rights is a continuous process and should be an
ideal for all those who are evolved and continue to evolve. The evolved should
be responsible enough to remind those who have been left behind. But how
does one do that if they know by simple contact, a large population of the tribe
may get killed? However, a mind which does not question or journey into the
unknown will not be one which evolves on its own. Therefore, in order for evolution
to take place, it needs to be enforced.
Humanity is considered to be a gradual process evolving from the mind.
This is the reason a constitution was written and taught from generation to
generation. Hence, human rights are the product of evolution and the origins of
human rights is a product of conscience reminded constantly by the supreme
law of the state.
Human rights have flourished in European society at least since King Johns
time. As King John violated ancient laws and customs which were traditionally
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followed in Englands governance, he was forced by his subjects to sign the
Magna Carta or the Great Charter. A number of laws which were defined in the
Great Charter later became the tenets of human rights. The great charter required
the state authority to refrain from controlling or interfering with the activities of
the Church. It freed the citizens from excessive taxes and established the rights
of free citizens with reference to owning and inheriting properties. The rights of
women, especially the rights of widows who choose not to remarry and to own
property were clearly defined. Bribery and official misconduct were forbidden
with specific provisions for legal actions were designed. This charter thus tried
to establish the principles of due process and ensured that there was equality
before the law.
This period in history also witnessed different political and religious
traditions question state on human rights and become self-proclaimed
spokesperson who called upon the state officials to rule justly and
compassionately. The delineation of the limits of ones control over the lives,
properties and activities of their people was elaborated by the so called
spokespersons of human rights along with all these aspects of human rights.
The concept of natural rights was propounded by various European
philosophers during the eighteenth and nineteenth centuries and these rights
were not connected to the citizenship of the individual or his membership in any
religious or ethnic group. An individual was entitled to these natural rights by
nature by virtue of being a human. Nevertheless, some philosophers continued
to hold the view that the underlying principle of individual rights as well as political
and religious freedom actually is the concept of natural rights.
The major revolutions in the history of the world relied on this concept.
The two major revolutions in late 1700s American (1776) and French (1789)
resulted in U.S. Declaration of Independence (where most British colonies in
North America proclaimed their independence from the British rule). The American
and French revolutions resulted in a general disfavor for the natural rights and
saw the emergence of the universal rights.
These two revolutions led many to disfavour natural rights. However, this
period also saw the advent of universal rights. The ideals behind the concept of
universal rights were discussed by many philosophers including Thomas Paine,
John Stuart Mill and Henry David Thoreau in depth. We find that Thoreau as one
of the first to use Human rights as a term and it has been mentioned in his
treatise on Civil Disobedience. Leo Tolstoy, Mahatma Gandhi and Martin Luther
King were greatly influenced by his works and it was a marked influence in the
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latter two in particular. They developed the concept of non-violent resistance
against unethical government actions and continued to succeed in their struggles.
Human rights do find a mention in the works of the English philosopher John
Stuart Mill (Essay on Liberty) and of the American political theorist Thomas Paine
(Rights of Man).
Quite a number of issues that came into the limelight in the mid-19
th
century
developed into bigger human rights issues with a mass following in the late 20
th
century. Slavery, serfdom,brutal work conditions, starvation, wages, child labour
are a few of the major issues that gained focus in this period. America abolishing
slavery and Russia releasing serfs were the major highlights of this period.
However neither the American slaves nor the Russian serfs had immediate
access to their basic rights or any degree of freedom. They had to wait for many
decades for all that to happen.
The human rights activitism was found to be largely associated with the
religious beliefs and political groups of the times in the late 19
th
and early 20
th
century. Very often revolutionaries were found accusing the state and propagating
human rights as the essential factor to bring about social change. They firmly
stated that their ideology was necessary to put an end to government atrocities.
The disgust with the state operations is considered one of the main reasons as
to why people got involved with revolutionaries in the first place. 17.To all such
allegations, the government responded with equally strong accusations and
insisted that a stern approach towards descent was necessary. The government
pointed at the bombings, strike related violence and growth in violent crime and
social disorder as the reasons for its stand.
This led to a situation where there was no credibility between the two
groups, i.e., state and revolutionaries, nor did these two groups have any credibility
with the neutral citizens of the state. This may be due to the fact that the concerns
raised by both the groups were political and not humanitarian in nature. Therefore,
political protest often encouraged more oppression and neutral citizens who got
caught in between the two groups cursed both sides and made no attempt to
listen to either one of them.
Even though there were several such dampening incidents, remarkable
social changes did happen during this period due to the fiery emergence of civil
rights and human rights movements. The labour unions made possible hitherto
unheard of phenomena like the right to strike, establishment of minimum working
conditions, prohibition of child labour, forty hour work weeks in Europe and
America. There was a marked improvement in the position of women in the
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society in this phase. With the efforts of womens rights movement, this period
saw women get the right to vote. Many countries under colonial powers
succeeded in getting freedom through national liberation movements in their
countries. The best example of this is evident in Mahatma Gandhis movement
to free India from the British rule. This period is also witness to different
movements which assisted in the emancipation of long-oppressed racial and
religious minorities, for instance the U.S. Civil Rights movement.
Appeal for Amnesty, 1961
The formation of Appeal for Amnesty in 1961 is of great significance in the history
of human rights as its effect was felt worldwide. 17. Two Portuguese students
raised their glasses in a toast to freedom and were sentences to twenty years
for that crime in 1961. This led to the formation of Appeal for Amnesty through
the action of a group that included people from different walks of life - lawyers,
journalists, political writers and many others. They announced this appeal for
amnesty in the London Observer (Sunday supplement) on the 28
th
of May 1961.
The stories of six such prisoners called Prisoners of Conscience were carried
in that appeal. They were from different countries and were imprisoned for
peaceful expressions of their respective religious beliefs and political thoughts.
The Appeal was addressed to the governments worldwide to free such prisoners
and this initiative has continued to make impartial and non-partisan appeals on
behalf of people who had been imprisoned for peaceful expression of their views.
There was an astonishing reaction to this appeal and what was started as
an one-year appeal got extended beyond the year paving the way for Amnesty
International and the Human rights movement. The modern human rights
movement had no new principles but was based on a complete rejection of any
political ideology or partisan attitude. It put forth a demand to all the governments
in the world that they adhere to the basic human rights principles in the treatment
meted out to their people.
The journey of modern human rights movements in its early phases was
quite uncertain. Appeal for Amnesty, 1961 was considered a very basic and
rudimentary form of organization. The activities of the staff members were
focused on keeping even minute details in their mind and ensuring no wastage
of financial resources. This strict financial accountability became an established
trait in the following years. As initially the staff members got into partisan politics
when they followed human rights violations in their respective countries, the
Amnesty International members were prevented from working on cases in their
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own country. Though this ensured that the non partisan ideology was
safeguarded, the members were misinformed about prisoners and many early
campaigns failed. This was later rectified with the establishment of a research
team and prisoners of conscience were adopted by the organization only after
thorough investigations.
This was viewed as a very restrictive way of functioning by many people.
Because of his violent struggle against apartheid, Nelson Mandela was dropped
from the list of adopted prisoners by Amnesty International to the displeasure of
most pro-democracy activists. It also created displeasure when it did not take
up a fight against abusive governments that had little regard for basic human
rights. The general opinion was that a better job in a broader spectrum of activities
would have been befitting an organization of this stature.
With the passage of time, the initial human rights concerns metamorphosed
into numerous human rights groups. Regional human rights groups had
extremely difficult operating conditions especially in the Soviet Union. Helsinki
Watch was initiated by a few Russian activitists who were monitoring Soviet
Unions compliance with Helsinki human right accords with respect to human
rights. Many members were arrested soon after it was started and had no
chances to operate actively. And many such groups including the Helsinki Watch
merged to form the Human Rights Watch in 1978.
There was a sudden burst in the formation of regional groups that resulted
from military takeovers in Chile (1973), East Timor (1975), Argentina (1976) and
the Chinese Democracy Wall Movement (1979). Though these regional groups
differed widely in their philosophy, tactics and focus, at least for the most part,
they did remain in talking terms. The unique feature about these regional groups
was that one human rights activist could be a member of more than one group.
It was only during the 1970s that human rights movement came to be
recognized and a growth in the number of human rights movement was seen.
Around the same time Amnesty International gained permanent observer status
as an NGO at United Nations. It became mandatory for countries to recognize
the reports issued by Amnesty. Their press releases received a lot of positive
attention despite their recommendations being ignored by some governments.
In the year 1977, Amnesty International was awarded the Nobel Peace Prize for
its work.
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Exhibit 2.1
Was killing Osama bin Laden legal?
5-5-2011
By Gabor Rona
International Legal Advisor
He was an evil mass-murderer. Does it matter how it went down? Absolutely.
It matters to one of the fundamental humanitarian principles of the laws of
armed conflict: if they are hors de combat, or outside the fight, then targeting
even military objectives is a war crime.
So first, was bin Laden a military objective? Assuming one accepts the idea
that the United States is at war with al Qaeda, yes. In war, persons who
directly participate in hostilities or who perform a continuous combat function
in an armed group are targetable, and bin Laden certainly was the latter, if not
the former.
But what about hors de combat? Heres what Protocol I to the Geneva
Conventions says:
A person is hors de combat if:
(a) he is in the power of an adverse Party;
(b) he clearly expresses an intention to surrender; or
(c) he has been rendered unconscious or is otherwise incapacitated by
wounds or sickness, and therefore is incapable of defending himself; provided
that in any of these cases he abstains from any hostile act and does not
attempt to escape.
The first reports had it that bin Laden was armed and put up resistance by
using a woman as a human shield. Subsequent reports said wrong, not
armed, no human shield.
Does that render him hors de combat? No. It does not amount to either (a)
or (b) or (c), above.
Some law of war theorists claim that a person who poses no evident threat is
also hors de combat. (To keep my students interested, I call it the naked
soldier hypothetical). But unless and until that idea finds its way into the Geneva
Conventions or into the practice of a substantial portion of the worlds militaries
acting out of a sense of legal obligation, it will not be the law.
What about the fact that he was an evil terrorist with the blood of thousands
on his hands? If he was hors de combat that would be a matter for judge
and jury to sort out, not Navy Seals. And thats exactly as it should be because
killing in war is not for the purpose of implementing justice. Its for the purpose
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of neutralizing the enemy. I wont argue with President Obamas conclusion
that justice was done, but I do think that term is more appropriate for what
comes from a (legitimate) court of law than the end of a gun.
But what if you reject the war against al Qaeda paradigm? In that event,
human rights law, rather than the laws of war would be your guide. And human
rights law prohibits arbitrary deprivation of the right to life. While the legality of
lethal force is a closer question outside of armed conflict than in it, the totality
of circumstances make it difficult to claim that the killing was arbitrary, even
if bin Laden was not actively resisting or fleeing.
All in all, probably a legal kill assuming the official version is true.
Update: The Obama Administration articulated the right standard and analysis
to this case when White House Spokesman Jay Carney said, The team had
the authority to kill Osama bin Laden unless he offered to surrender; in which
case the team was required to accept his surrender if the team could do so
safely. Carney also stated that (t)he operation was planned so that the
team was prepared and had the means to take bin Laden into custody.
(Source: http://www.humanrightsfirst.org/2011/05/05/was-killing-osama-bin-laden-legal/
accessed on 26 December 2011)
Activity 1
Analyze the case of the three U.S. hikers who tried to cross the Iranian
border and trace the efforts taken by American government to free them.
Self-Assessment Questions
1. Fill in the blanks with appropriate words:
(a) After he conquered ________, Cyrus issued forth the Cyrus Cylinder
which took up the freedoms of slavery, religion and other issues.
(b) _________ was a black South African anti-apartheid activist
2. State whether the following statements are true or false:
(a) In 1989, the people of France overthrew their monarchy and
established the first French Republic.
(b) In 1977, Amnesty International was awarded the Nobel Peace prize
for its work.
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2.3 Approaches to Human Rights
Human rights are a vast subject and many great philosophers and political thinkers
have given their views regarding their understanding. On the basis of their views,
the study of human rights has been broadly divided into five groups or
approaches. They are as follows:
1. Natural Law Approach
2. Historical Approach
3. Positivist Approach
4. Marxist Approach
5. Social Science Approach
The natural law approach
According to the beliefs of the Natural Law proponents, the natural law is of a
higher stature than that of the positive law (created by man) and the latter must
conform to the former. Though this theory is based on equality, none of its claims
can be either confirmed or rejected because it is usually based on the revelation
of divine will, transcendental cognition and participation in natural reason
The historical approach
When we use a historical approach, human rights is often treated as a
component function of culture and environment inclusive of factors like time and
space. Though it is valid to employ a historical approach, it comes with its own
drawbacks. This approach fails to consider the individual as a separate entity
and he or she is always viewed as a part of the community. And we do find that
there is an exaggerated importance given to language, religion etc. It is bereft of
peoples viewpoint. Lastly, it differentaites between societies, which totally
disregard the universal nature of human rights.
The positivist approach
The positivist approach is very pro-state as this approach sees laws enacted by
state who have coercive powers within its territory. The drawback of this approach
is that laws are enacted by the will of state and not by the will of the people.
However, some philosophers and political thinkers are of the opinion that
obedience could be easily obtained if sanctions came from laws based on the
values of society rather than coercion. Positivists give more emphasis on state
and not its citizens when it comes to international law therefore making a number
of instruments which are available today ineffective.
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The marxist approach
From the point of view of a Marxist, human rights just do not exist in the capitalistic
societies. It is only in a classless society, which is characterized by public
ownership of the means of production, human rights come into existence.
The social science approach
The social science approach, for assessing the success or failure of human
rights, relies on various techniques and models including empirical and scientific
methods. This approach views human rights from the perspectives of the social
processes and stands by the communities role in shaping principles. And in
this context, the failure to define a clear link between social processes and the
state laws remains a major drawback for the social science approach.
However, human rights do remain at the base of the stability and
development of all countries in the world. Major emphasis is given to the
international conventions of human rights to ensure a universal standard of
acceptability. With new technologies and globalization taking place on a large
scale, these principles gained significance not only in safeguarding individuals
from ill-effects of change but by also ensuring that each person is allowed a
share in the benefits reaped by this change. These changes have impacted the
world with regards to human rights as well. These changes have proved to be
both advantageous and disadvantageous to human rights. For instance, the
developments in science and technology may impose certain risks on mankind
which could hamper the implementation of human rights.
Human rights have to be assimilated into the ethical codes for all the
professions to ensure that human dignity is protected in all possible
circumstances. The numerous technologies that emerge in the field of
biotechnology and medicine are sufficient reasons for this to happen. If we
consider organ transplantation for an example, there are a number of issues
that spring from it such as issue of consent to donate, prevention of premature
harvesting by a proper definition of death and of course, the most significant
being an equal chance at transplantation. On the other hand, researches in
genetic engineering may bring the dangers of gene mutation and cloning. The
convention for the protection of human rights and dignity of the human being
with regard to the application and medicine was organized to deal with such
problems and it puts the welfare of the individual above that of the science or
society.
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The need for and the ability to propose and enforce such mechanisms
are important. These have been mocked at by conspicuous human rights
violations and disregard of human dignity in many countries and these continue
to happen at different points in various forms and levels. Most cases of this type
do not result in prosecution of the accused (of human rights violations) as there
are political situations and power equations to be considered. Letting such
violations going unchecked may increase the number of violations as the
perpetrators feel they can enjoy immunity from punishment.
Self-Assessment Questions
3. Fill in the blanks with appropriate words:
(a) The main disadvantage of the _______ Approach is that laws would
not stem from the will of the people but from that of the sovereign.
(b) By focusi ng on the di fferences between soci eti es, the
__________approach undermines the universality of human rights.
4. State whether the following statements are true or false
(a) In the field of biotechnology and medicine especially there is strong
need for human rights
(b) The Marxist approach posits that in a capitalist society, human beings
are of prime importance.
2.4 Theories and Principles
Human rights are a vast subject and in order to understand the fine nuances of
this doctrine, it becomes essential to understand the principles it is based on.
Some of the basic beliefs which influence human rights have been discussed
below.
Humanism and morality
The streamlining and defining of non-religious rules with reference to ethics and
morality would be a daunting task and a point of concern for both humanists and
atheists. Few people interpret that individuals without religious faith also lack in
ethics and morality. This has made humanists responsible to word their
statements about their beliefs and ideologies in such a way that they support
human rights, democracy, liberty etc, along with a need to provide an alternative
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to religion. The International Humanist and Ethical Unions resolution is considered
as the most authoritative statement in this regard. This effectively deals with
humanist principles as per the guidelines listed in the American Associations
Humanist Manifesto III (2003).
The fundamental tenets of these statements are actually a result of the
need to project these as an alternate to religious beliefs in order to encourage
and support moral decision making among people. When there is an effective
set of clear and concise guidelines for universal ethical values, it would be of
use to humanists as well as to the entire humanity. Suggestions on the possible
ways to do this would be beneficial. These statements draw guidelines based
on published humanist values and also relevant inputs from everyday moral and
ethical philosophies.
Moral theory and principles
The common sense morality is a very familiar concept and is actually based on
common sense guides to human behaviour. These are generally basic etiquettes
involving different aspects of everyday philosophy such as - do your best; be
fair to others; keep your promises; treat others like you would like to be treated
by others. Along with these there are certain facets that are generally associated
with a fee good factor like happiness, honesty, justice, charity, courage, integrity,
community, love, knowledge and freedom. These ideals generally function free
from religion and are widely accepted and appreciated by all religions. We find
that most people are no strangers to these traits and these ideals are basically
dependent on the concept of common sense morality. But these may be become
insufficient when we face complex situations. A major chunk of these ideals
have been taken by philosophers in order to develop moral theories which help
guide the behavioural pattern in society. Popular theories have been formulated
based on the ethical standards and moral principles by the philosophers and
the Divine Command theory, Utilitarianism theory and Natural Rights theory are
prominent among them.
The Divine Command Theory is based mostly on religious texts and is
asserts to be based on Gods commands. The notion of maximizing happiness
for all individuals forms the basis of utilitarian theory and moves towards the
greatest good for the greatest number which is supposed to be the guiding
tenet for morality.
According to the Natural Rights theory, all human beings have their natural
rights like right to life, liberty and property. These rights should be withdrawn
only when the rights of fellow individuals are violated. Though it has been often
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assumed that natural rights have a religious origin, there are many theories that
are specific about the obligations and ethical behavior of individuals. But it must
be understood that no theory among these has universal acceptance.
As none of these theories can be applicable in all scenarios, no theory
has actually gained predominance over the others. A requirement for flexibility
arises in applying these theories in different situations and at times, even a
combination of the different theories would be required for practical applications.
Specifying a set of tenets that would be a combination of the best elements of all
these theories to make a universal guideline would be a better option. Optimal
use of these combination principles would be suitable for all situations but defining
the best of these would pose a problem. Moral issues are usually conflicts
between duties and no single principle can be defined as the absolute rule.
These would remain moral presumptions as Field would call them which should
be adhered to unless there is a valid situation demanding not to. When such
principles are not observed they should be justifiable exceptions and may be
fulfilling a different principle.
Eight such principles have been suggested by Resnik in this regard. They
can be listed as Non-malificence (Do not cause harm to yourself or to other
people), Beneficence (Help yourself and other people as well), Autonomy (Allow
rational individuals to make free and informed choices), Justice (Treat people
fairly: treat equals equally and unequals unequally), Utility (Maximize the ratio of
benefits to harms for all people), Fidelity (Keep your promises and agreements),
Honesty (Do not lie, defraud, deceive or mislead) and Privacy (Respect personal
privacy and confidentiality).
The eight principles laid down by Resnik are a matter of debate since the
connotation of words like harm, benefit, fairness, rational, and deception
may be understood and explained differently by different people. A close
observation of these principles assists in forming a general moral system.
Another remarkable feature of these principles is that they are common to all
cultures. These principles may or may not be influenced by religion but they do
not completely rely on them. They are not rules in totality however should be
seen as guidelines that should be used in combination with each other. Conflicts
can arise among these principles. For example, the famous maxim, Honesty is
the best policy is considered to be a good. However there can be situations
where it may not be conducive, for instance, in situations where honesty is
assisting a person with evil intentions. In situations where an ethical quandary
arises, it has been advised to gather sufficient information and only after a
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thorough research come to a decision. Therefore, a final decision could be made
by evaluating the theories. This concept can be called moral reasoning and we
generally find that it results in a state of reflective equilibrium or balanced judgment
very often.
The advantages of using this kind of defined principles are that they are
understood better and easier to teach than the moral theories. As they can be
covered under eight key words, the simple and plain structure of these principles
it is easier to adopt for individuals. When we try to arrive at answers as to why
these are considered good and what exactly is their purpose, we have to
understand that these are very similar to Immanuel Kants suggestions and
applicable to the golden rule test. As there would be no individual who would
want to be harmed, neglected, betrayed, lied to, suppressed, cheated or invaded.
It is a fact that everybody wants all others to behave without malificence towards
them but with beneficence, fidelity and honesty as well as allowing autonomy,
justice, and privacy. Hence an argument that these golden principles are to be
accepted as universal objective principles stands strong. But we need to
remember that their interpretation and application can also remain partly
subjective.
When we look at the scope of these eight principles, it is huge and is also
found to include earlier theories on morality like natural rights and utilitarianism.
However the moral theory of utilitarianism has come under heavy criticism as
many people including philosophers and political thinkers feel that utility of two
separate individuals cannot be compared. Each individual might have his or her
own needs which might differ from that of the others and policies and regulations
of morality would be affecting the interest of more than one individual.
There might be a situation where one person may benefit from the same
however some other person may not making it difficult to come to a decision
based on utility of both the individuals needs. The concept of Preference
Utilitarianism is being propounded in such scenarios. According to this concept,
action is seen as conducive and recommended only if it essentially satisfies the
needs of some without frustrating the needs of the others at the same time.
This specific ethical theory or the other theories might not be suitable or
may be difficult to practice in some circumstances. Hence, viewing it as a matter
of judgement with respect to the other principles rather than as a single concrete
theory which would provide a one-stop solution would be more appropriate. A
thorough research with all the available knowledge or information should be
complete before a judgement is exercised.
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In the same way, theories which revolve around individual freedom and
seek to decipher ethics from all these principles benefit more from seeing the
broader picture where all principles are seen in equality and balanced judgment.
Utility as a moral principle as wide connotations and may include anything
and everything which may be considered useful and beneficial to mankind. These
things could mean a lot of aspects in life for individuals be it happiness, love,
knowledge or material well being. When we look at the principle of utility it is not
only relevant to inter-personal morality. Most government legislations or economic
policy reforms are based on a form of utilitarianism which is expressed as a
need for communal utility leading to maximization of community welfare. And in
this scenario, an impartial economic analysis proves to be a very valuable tool
for guidance.
Most aspects of the economic theory would be in favour of maximization
of utility as against the freedom that can be exercised in market choice. Hence
when we associate economics and morality some people might feel it
unacceptable. But this theory suggests that moral reasoning can be applied
between individuals and also between individuals and a society. It also defines
the societys obligations to the individuals involved. When we apply freedom
and utility as additional principles, the rest of the principles find easier application
with respect to the moral process of individuals or organizations/groups and
also of the government.
An apt definition of the notion of autonomy can be seen in the Universal
Declaration of Human Rights, which states, the exercise of these rights and
freedoms may be limited only for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements
of morality, public order and the general welfare in democratic society (Article
29). This article suggests that there needs to be a balance between individual
rights and public welfare which means there needs to be a balance between
autonomy and utility and that morality should be considered as an element in
this process. Hence, we see a delicate balance between these principles being
strived for in most public policy decisions and also in the international documents
that have a great value ascribed to them.
The individual level application of these principles with reference to inter-
personal morality is quite obvious. The issue of abortion is found to have
competing interests with respect to the mother and the foetus and these can
be represented by non-malificence, beneficence and freedom in each case. So
several issues must be weighed against each other and would have to be
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balanced before a decision could be arrived at in this scenario. Here, we see
that an implicit moral reasoning when applied get expressed into a more explicit
principle.
The advantage in this case is that there is no difficulty of defining the absolute
rules that should be applicable in all situations. It is just a decision making on the
basis of a few moral principles and does not have any practical application
benefits. The principles provide a universal reference for evaluation irrespective
of the fact that morally deviant behaviour will always occur in society. It has been
seen that bad behaviour might involve disregard of a principle or inappropriate
emphasis may be given to one principle. Herein if somebody has an acceptance
of these principles, even if there are a few irrelevant rules (eg. a higher religious
imperative), they have to be accepted as they are and there should be no
arguments based on the universal principles. Even though every individual takes
a moral stand in some way in most situations, a possibility of overlooking or
being unaware of the relevant issues or facts may make them fail in the larger
scheme of things.
Religion and Morality
We can often find, while analysing them that moral principles may have subjective
judgments based on objective reasoning. There is often a delicate balance of
judgment between competing objectives in many moral decisions.
There might be a subjective judgement when the different moral principles
are analysed finally but it is based on objective reasoning. Most moral decisions
are the outcome of a delicate balance between actually competing objectives.
The decisions are made based on the relative weightage associated with the
competing principles. Though individuals may or may not differ in the importance
given to the relevant principles but their open and clear reasoning is actually an
advantage. This is not the case when it comes to religious morality where the
reasons are closed and rigid and something can be considered bad just because
it is believed to be bad. This might lead to a complete denial of certain moral
principles without any clarity as to the reasoning behind it. Hence, evaluation of
religious morality with reference to the universal morality becomes important.
As different religions have different sets of morality, use of religious
morality as a universal principle is not possible. And freedom of thought,
conscience and religion as provided by the Article 18 of the Universal Declaration
also makes this redundant. Most religions tend to enforce limits on the freedom
of thought and conscience. Hence freedom from religion also signifies freedom
from religious morality too. Contradictions to the universality of the Declaration
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also cannot be universal. So, moral systems based on universal principles could
be a solution here. The need for religious freedom as outlined by human rights
is for the sake of the advancement of religious tolerance, even though it comes
with an added contradiction as it also implies a tolerance to religious thoughts
and beliefs that might not be tolerant. All these issues have to be associated
with the moral relativism of the idea and also with the understanding that universal
morality is neither possible nor desired.
A discussion on the probable different forms of solutions for all these issues
will naturally follow. But, before that is initiated, it would be better if a few difficulties
that would possibly arise for religious thoughts and beliefs are considered when
the moral principles are outlined explicitly.
Though every individual deserves equal treatment by the tenets of moral
justice, we find some religions violating this principle as it is obvious that the
women do not receive equal treatment in those religious groups. For instance,
Islam declares that women are inferior to men. This proves that religion in general
has not always proved fruitful to human welfare. Though religion has been accused
of motivating numerous wars, social strife and a number of violent acts, it has
also been seen that religion is also responsible for the development of science
and technology in the past centuries. This development in science and
technology is ultimately linked to the economic prosperity. This effect is seen
even today in many countries, Islamic countries in particular. In such cases,
principles of utility, non malificence and beneficence are breached in the name
of religion. Even more apparent problems are witnessed with religious ideologies
when it comes to personal autonomy and honesty.
Religions operate with a denial of freedom of thought and whether this is
essential for the survival of religions is a matter of debate. But religious believers
are usually denied a freedom of thought and persuaded into submission unlike
the freethinkers. We find that the children are indoctrinated and threatened with
eternal damnation when they voice their doubts. Thinking is permitted only as
specified in the sacred books. There is no freedom of choice when it comes to
religious beliefs. This is explicit in Islam where the Koran indicates This book
is not to be doubted in almost its very first line and sanctions enforcement of
religion on pain of death He that chooses a religion other than Islam, it will not be
accepted of him. This denial of choice continues despite the Article 18 of Universal
Declaration which assures everyone the right and autonomy to change their
religion.
Furthermore, religion has many issues when it is evaluated in the context
of honesty, which is considered the most important universal principle. The
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existence of supernatural beings and events are claimed to essential ingredients
of most religions. All these claims are not based on beliefs and rely on faith
rather than any valid proof. Though the holy books claim about the existence of
supernatural beings, there is no substantiation provided that can be deemed as
evidence. There are people who in support of their religious propaganda, claim
that such supernatural beings do exist and there arises the question of why they
cannot be held guilty of intellectual dishonesty. At the same time, individuals
cannot be accused for stating what they actually believe as true. But when these
individuals are in position of religious authority, it becomes their responsibility to
speak the truth or base their facts on evidence before making claims such as
the supernatural beings. At best, what they espouse relies on a reversal of the
usual onus of proof. At worst, it amounts to blatant deception.
Apart from religion, other areas of peoples interest are usually protected
through government legislation. For example, consumer rights are protected by
government regulations. The religious claims of supernatural beings are usually
intended to induce belief and continue to remain as speculation. However we
find that Christian evangelists continue to thrive especially in the USA. They
continue to draw crowds with claims that should normally be considered
deception and use it to their great personal advantage.
We very often find religious leaders contradicting other religious groups
and making unsubstantiated claims. Most people dont give any attention to such
events or claims and the religious leaders do know that no reconciliation of facts
is possible. Even if speculative claims are acquitted as intellectual dishonesty,
making statements in direct contradiction of established or proven scientific
facts (like the creation myths) to propagate religious faith should not be forgiven.
It can be certainly concluded that religions do appear to be breaching it, even if
they claim to represent universal morality.
Self-Assessment Questions
5. Fill in the blanks with appropriate words:
(a) Divine command theory holds that morality should be based on
________.
(b) _________holds that morality should be guided by the greatest good
for the greatest number, meaning that utility or happiness for all should
be maximized.
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6. State whether the following statements are true or false:
(a) An essential ingredient of most religions, are claims regarding the
existence of supernatural beings and events.
b) Many moral decisions involve an implicit balance of judgment between
competing objectives.
2.5 A Humanist Alternative
There is a predominance of the religious views in the world which unfortunately
leads to a diversion from the universal values that would have been otherwise
greatly beneficial to humanity. Though they proclaim to be absolutely moral the
various religions actually have brought about a moral relativism which they
actually claim to be opposing. Every religion considers its moral code to be
correct and universal. But there should be a tolerance as well as a respect for
other religious beliefs and because of this there comes the religious moral
relativism. When this malaise of moral relativism is found to fuse with religious
ideologies and the chosen people mentality, these contribute to a range of
problems like endemic poverty, trade and income inequality, terrorism and
unilateralism in the world.
Because they are taught their religious ideologies from childhood most
people believe that there is no better alternative than their religious theories.
That becomes the only course that is available to them as long as they continue
to believe. A state legislative statement of universal moral values as an alternative
would have been greatly beneficial to individuals. Such kind of statements would
at the end evolve or coincide with human moral values or humanist moral decision
making processes. The possibility of such statements gaining universal
acceptance is the main reason for humanist organizations issuing such
statements. This kind of moral code that might gain a universal acceptance is
possible only from a humanist perspective.
A set of eight moral principles were proposed recently by an ethicist when
introducing a study in professional ethics. The possibility of such principles
completely encompassing all the moral issues and the reasoning process has
not been realized. But each principle may be something that every individual
would accept within the limits of the contradictions between the different
principles. Hence, these could be labeled as universal principles.
If there is a set of exhaustive set of principles, then there would be no
moral issue that cannot be judged based on a balance between the principles.
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Then the method of using these principles has to universal in its application and
we find that these principles are already being used whether it is in personal
issues or in international relations. There is a universal opportunity to apply these
principles and these might lead to the generation of a statement of universal
ethical values.
If ever there was a situation where these principles and application methods
could be planned, the intention clearly would be to provide a universal set of
guidelines for moral decision making. Then all individuals would be under an
obligation to follow them which might not be supported by most people. Even
though most people are accustomed to the concept of universal rights they
would not be receptive to universal obligations. Though the rights are free,
obligations might imply costs as there might be scenarios where one persons
right might become another persons obligation. Thus, if and when universal
ethical rights get accepted, universal obligations too would become mandatory.
In that case a statement of universal values could be worded as a statement of
universal obligations.
There is nobody unfamiliar with universal rights and another statement of
universal obligations must also be declared in the same lines. The existence of
an authoritative body with an inclination to make such a declaration is required
for that. Though it might be possible in future, any attempt in that direction has to
be a simple statement right now. Though some cynics have doubts about the
achievements, it would be possible if the non-religious individuals could take a
stand that no religion is required for practicing morality. This would ensure that
the religious are also made to think beyond their beliefs and establish that
universal morality standards cannot be achieved with beliefs and also that
religious beliefs would be inconsistent with universal values.
The UDHR is a good example for such a document and it could take the
form of a two-page (or less) document which should be in an authoritatively
legal and readable language. This should consist of a preamble that describes
the nature and purpose of the document and other details as numbered articles.
A draft of a Universal Statement of Moral Obligations has been prepared to prove
that such a viable document could be constructed. Now it is expected that other
statements or improvements might happen because of this initiative. Such a
document would be a challenge to all the detractors of state policy who would
find faults in that document too. Even if its requirements are not completely met
and it might not be the ideal document, this might be a valuable reference point
towards that end. It has been drafted to gain wide acceptance. It does not list
any specific moralistic rules but only lists the general principles and universal
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method in employing them to answer moral questions. Several articles in the
Universal Declaration do not bother to resolve the contradictions that might arise
between different religions. Herein the freedom of thought should gain
precedence.
In most societies, religion is viewed or interpreted as the guardian of
morality. This presumption of religious authority when it comes to morality is not
in the best interests of the people. There is a possibility of establishing a moral
authority as against the assumed perceptions of organized religions. However
this alternative is possible only if a viable as well as a visible guide is provided to
channelize the humanistic moral process.
Human rights has started taking the shape of a religion in our world. They
are described as the ethical yardsticks that measures and checks how a
government treats its people. The 20
th
century has seen a consensus on human
rights and the various nations are judged against an international moral code.
This code specifies that every individual is entitled to equal treatment and benefits
as they are humans. And because of this, political debates in many nations are
regarding human rights violations.
We often find that most public discourses even in prosperous and
democratic countries like Canada is also a verbosity of rights. The 1982
entrenchment of the Charter of Rights in the Constitution was a result of an
endless stream of legal documents that continued to be produced in Canada.
After the charter was created, many Canadians have started claiming that their
particular needs/desires are also a matter of human rights and should be made
available to every Canadian citizen. Very often, the desired benefit which is
claimed as a human right is used as a technique to label and vilify any opposition
as unprincipled or immoral.
High moral ground for human rights becomes irrelevant in this scenario.
Very often, the ever growing list of human rights agreements at the United Nations
is cited as evidence that human rights are universal. Many political activists as
well as commentators use this to support that their demands must be respected
by everyone.
The domestic human rights legislations that we have and implement are
actually a representation of the human rights that has been recognized all over
the world. They are universal and inalienable but human rights as a whole is a
much more complicated concept than all these legislations.
The authority of human rights can be accepted. But there are a lot of
conceptual difficulties with respect to their origin, nature and their content. These
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have to be analysed and understood before a complete acceptance of the human
rights concept sets in. When such analysis is done, very often it is drawn to a
point where human rights can be declared as a misnomer. We find that the
phenomenon is just a description of certain ideals which are mostly controversial
too.
Self-Assessment Questions
7. Fill in the blanks with appropriate words:
(a) Religions assume a prominent but unwarranted role in the perception
of most societies as being arbiters and custodians of _______.
(b) Human rights are the great ethical yardstick that is used to measure
a ________ treatment of its people.
8. State whether the following statements are true or false:
(a) Any inquiry into the origin, nature, and content of human rights reveals
tremendous conceptual hurdles that need to be overcome before
one can accept their pre-eminent authority.
(b) Since the advent of the Charter of Rights, many Italians have claimed
that particular benefits they desire are a matter of human rights and
must be provided.
2.6 The Theoretical Foundation of Human Rights
Though there are many presumed foundations that actually compete to be the
base of the concept of universal human rights, we need to acknowledge all of
them as they give us different perspectives about the various aspects that are
protected by human rights. When we look at it from a larger point of view, each
of these aspects does have its own strengths as well as weaknesses which
face a lot of difficulties due to relativism and utilitarianism.
Many human rights scholars claim that the very existence of human rights
is to protect the dignity of human life. They declare that the inherent dignity of
the human person is the point from which human rights originates and flows
and they do insist that the United Nations Declaration on Human Rights also
represents this goal. Very strong views are expressed, most frequently by people
with liberal thoughts in the west, which insist that human rights should continue
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towards the promotion and protection of human dignity. In the words of Jack
Donnelly, we have human rights not to the requisites for health but to those
things needed for a life of dignity, for a life worthy of a human being, a life that
cannot be enjoyed without these rights. Though this view is held by most people
and this is a very frequently invoked definition in the rhetoric of human rights.
Since most societies see humans as above the other animals just because
we have the capacity to improve the quality of our life, this concept of promoting
human dignity has gained an universal appeal in todays world.
The approach of promoting universal moral standards based on promotion
of human dignity might not be very stable as identification of the nature of this
dignity would pose a problem. This is revealed, though unintentionally, by Donnelly
when he says Human rights represent a social choice of a particular moral
vision of human potentiality, which rests on a particular substantive account of
the minimum requirements of a life of dignity while elaborating on the
disadvantages of deliberate human action resulting in the creation of human
rights.When we think in terms of dignity it is mostly a matter of moral choice and
it is a very elastic concept which is why the conception of dignity becomes
important. Though freak assertions (like a dignified life includes 100 doting love-
slaves) might be generally rejected with contempt, there might not be any
conclusive agreement on the very core of dignity. So, disapproval might not
mean that a universal component of dignity has been agreed upon. Though
everybody agrees that all humans are equal, we find that Hindu, Confucian and
roman catholic societies have a significant view on social divisions. Here, dignity
is usually achieved by filling a particular role in a graded set of vocations. There
should be some consensus about inherent dignity if human rights are to be
universal standards and if there is no commonality of vision, dignity as the ultimate
goal of human rights has hardly any meaning.
Human wellbeing is an alternative basis for human rights and Allan Gewirth
was a supporter of this approach. Though he would agree with Donnellys views
that human rights manifest from mankinds morality, he does not agree that
human rights could be a moral vision of human dignity. According to Gewrith,
three types of rights address the different types of human wellbeing. While basic
rights safeguard subsistence, non-subtractive rights would be for maintaining a
purposive agency. Additive rights would enable an individual to improve his
capacities (such as education). This differentiation between rights is suggested
because Gewirth agrees tat the capacity for purposive agency varies in humans.
He expands his views in the lines of proportionality individuals are entitled to
rights in proportion to their capacity for agency. In this context, a comatose
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individual who is incapable of any purposive action would be eligible for only the
rights for subsistence.
However, many people disagree with this capacity of agency and argue
that such rights cannot be universal. Gewriths theories have been used by Husak
in support of his arguments that no rights can be extended to all human beings.
There is a distinction made between humans and persons and Husak concludes
that some humans who are incapable of any purposive agency at any time may
be grouped as non-persons. Gewrith disputes this and claims that all humans
deserve to be given the basic rights atleast in the capacity that they would be
either prospective or former purposive agents. However, the idea of all humans
not entitled to all human rights to the same extent would not be an acceptable
approach to many people.
The contentment in human development may be a probable basis for
human rights. But the drawback is that it would be interpreted with a different
meaning when it comes to different cultures or individuals. We find this relativism
in the words of OManique when he describes that A community and its members
will develop to the extent that the members of the community support the
development needs of others in the community, in ways that are appropriate to
that community. When we interpret what is essential to fulfillment in expression,
love or autonomy with respect to different cultures we would find that they differ
to a great extent in different societies like Bedouin, German or Japanese. Though
the specifications for the general entitlements that is required for human
development may differ with respect to the space and time, the general basis of
all these requirements will be the same.
An alternative approach to human rights would be to provide for the human
existence. Although there might be limitations on the ability of human rights to
provide for human subsistence, the fact that subsistence is in being able to
function rather than just keeping ones organs working makes human subsistence
rely on human rights to a certain level. The needs of subsistence is disregarded
as a narrow foundation for human rights by the supporters of other approaches.
However, there is obviously no response to the counter-criticism regarding the
consequences of the limits of human needs.
Food, Clothing and Shelter are three basic needs without which a person
would perish. These provisions are guaranteed by human rights.Apart from
providing basic requirements for subsistence, human rights also provide basic
health care which ensures human survival. As most households are not equipped
with the facility to sustain life however are able to with the earnings, one can
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argue that the range of human rights do penetrate into sustenance of human
life. Thus, extending the effects of human right into other benefits of workforce.
This extension holds true if the requirement of needs is satisfied even
though it is not directly furnished but by providing an individual with the capacity
to provide for themselves through earning wages in order to pay for their daily
requirements. However, as per socialist view, it should be mandatory for the
state to provide each and every individual with work in order to accomplish his
requirement for sustenance. A more restricted view of this socialist view also
emphasizes on the need for education so that an individual can find work. This
theory also suggests that human rights can cover a large array of social welfare
work, although this may prove to be an expensive affair.
Subsistence based human rights, though expensive, has a set of
advantages that are evident. The major advantage is its universality which is
possible in only this case and we find all other approaches to human rights
evading this issue. Though everyone may agree that Humans should survive,
develop and lead a life of dignity we often find that there are a few inconsistencies
in what is essential for survival. Sadly, there will be even greater disagreements
on the requirements for dignity, development and well being.The simple nature
of this theory based on subsistence can be much easily applied globally.
Even though this theory of subsistence is conducive to the application of
human rights, there are still some issues with the disparity that will arise from
different views held by different societies with respect to the specific ways in
which needs should be fulfilled. As we all know that each culture has distinct
features when it comes to food, dress or shelter and as to what is acceptable to
their culture. It has also been seen that there are vast differences in the
approaches to basic things in life such as health care. The practice of supporting
indigenous and/or spiritual theories for ailments and their therapies and outright
rejection of western medicine is a simple example that can explain this ideology.
Another important factor to be considered in the practical application of
human rights is the difficulty in achieving the objective that every human being
should survive. The general proposition that humans should survive becomes
difficult to achieve when it is translated into a concrete action of ensuring that
each and every human being should survive. There is definitely a limit beyond
which no society can afford to devote all the resources that would be required to
ensure that every individual survives.
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When it comes to the inspirations and goals of the various approaches to
human rights, each is found to be unique. However a common ground can be
seen in them. The dignity, well being and development based theories of human
rights are found to emanate from the desire to protect and cultivate a quality of
life. This is because the supporters of such theories feel that a life should be of
dignity, well being and perpetual development. The approach based on
subsistence is solely interested in the preservation of life. However this is a
common ground among all theories which include the right to subsistence.
Though these tenets of life based on dignity, well being and development provide
an additional protection to the qualities of life; the rights to existence and
subsistence of an individual seem to lose their significance.
When we look at the common aspects of the different approaches to
human rights, it would seem easy to conclude that these approaches are simply
matters of emphasis. But the special focus of each approach leads to complete
shift in their list of human rights. Though it is generally agreed that a life without
dignity is not worth living, the human rights based on subsistence will not include
the democratic rights that the supporters of human rights based on dignity swear
by. There would be oppressed people (like Iraqi Kurds) who might be justified in
using armed rebellion with the intention of freeing the entire population even
though it would involve deaths. But the human rights based on subsistence
would have sustenance as its focal point and would only advocate a nonviolent
solution for the political change.
Finally, it can be concluded that the foundation for the application of human
rights may based on any one of these approaches depending upon what the
state wants to protect. If a particular state finds the human rights approach
based on subsistence devoid of democratic rights or equality, then they can
follow an approach based on liberal dignity. However, the consequences of these
approaches do not act as motivational factors in promoting human rights.
It is evident from all these discussions that human rights foundations are
not universally accepted and also that they are not self-evident. There is always
a choice either implicit or explicit of a specific human rights basis and this
choice has significant consequences when we look at the benefits that come
under the purview of human rights. We find that choice is available in all facets
of human rights and at times, these choices themselves do undermine the moral
foundation on which the concept of human rights rests.
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Self-Assessment Questions
9. Fill in the blanks with appropriate words:
(a) Strong arguments have been made, especially by western liberals,
that human rights must be directed to protecting and promoting
human _______.
(b) A human rights approach based on subsistence may require a
______strategy for political change since the preservation of life is
the ultimate goal.
10. State whether the following statements are true or false:
(a) Theories of human rights based on dignity, well-being, or development
all are motivated by a desire to protect and cultivate some quality of
life.
(b) Douglas Husak has used Gewirths theories to argue that all rights
extend to all human beings.
2.7 Internationalization of Human Rights
The notion of human rights has seen a continuous evolution throughout the
human history. The concept of human rights is found to be intricately sewn into
the fabric of human society with laws, customs and religious beliefs inculcated
with human right ideologies. This is evident from the various documents that
have been unearthed from different stages of civilizations and it is widely accepted
that the ideology of human rights is as old as the first known civilization. Most
ancient documents as well as the philosophies that emerged in later days bear
a variety of thoughts that can be safely interpreted to have human right
impressions. The Edicts of Asoka is a noteworthy document among these and
was issued by the Mauryan emperor Asoka (272-231BC). Another document
which is deemed as a excellent example of human rights is the Constitution of
Medina drafted by Muhammad in 622 AD. This was the basis of a formal
agreement or pact between all the important tribes and families of Yathrib. This
was called the Medina in later times. However, the human rights as a phenomena
and protection of mankind as an ideology became widely accepted and
appreciated only after the two world wars. There were no set standards or
regulations for the implementation or protection of human rights before the world
wars.
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The origin and chronology of the human rights ideology can be classified
as pertaining to the pre-war and post-war eras. The post war era has seen a
well documented emanation of human rights and is classified into normative
foundation, institution building and stage implementation. Significant milestone
documents like the Magna Carta, French Declaration of Rights of Man, UDHR,
ICCPR etc. and a concise account of the various approaches to human rights
have found mention here.
2.7.1 Human Rights in Pre-World War Era
The foundation of human rights can be traced back to the Babylonian laws.
Prior to the two World Wars the origin and progress of human rights can be
divided into the following periods:
Prior to Greek period
The first examples of codified laws with reference to individual rights can be
seen in the Code of Hammurabi. This code was created in the form a tablet by
the Sumerian king Hammurabi about four thousand years ago. Although,
considered to be barbaric by present-day standards, the code of Hammurabi
contains 282 laws which are deemed precedent for all future legal systems.
Arbitrary prosecution and infliction of punishment of people was prevented by
the legally binding Code of Hammurabi. Its cause and effect were very specific
and there was no provision of protection in the case of issues like race, faith and
individual freedom and this constituted the only problem with this code.
Greek Period
The very concept of human rights began to take a proper shape with a meaning
and ceased to be just a prevention or protection from arbitrary prosecution of
individuals only during the Ancient Greek period. It was the Greeks who took a
stand that all individuals are equal and the universal law is binding on all individuals.
Thus the Greeks were the ones who proposed the basic principles of natural
law. From this angle, the human rights became synonymous with natural rights
and these originated from the natural law. Socrates and Plato, the great Greek
philosophers who felt that the natural law is a reflection of the order of the universe
and the will of the God who controls nature. We can find a classical example of
this in Greek literature where Antigone responds to the reproach of Creon defying
whose command she buried her dead brother. Her simple justification was that
she was acting under the laws of the Gods.
The present day human rights, despite this principle, differ widely from the
natural rights of the past. For instance, in the past is was considered perfectly
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acceptable to keep slaves which totally vilify the idea and understanding of present
day freedom and equality-two ideas which are key to the human rights movement.
Roman period
The Roman period also emphasized and believed in natural rights. Roman jurist
Ulpian believed that natural rights was every human beings right, irrespective of
them being citizens of Rome. Three categories existed in the Roman laws
Jus Civile, Jus Gentium and Jus Naturale. Jus civile and Jus Genitum were
based on Jus Naturale. This was an embodiment of natural law but was not
directly enforceable in a legal context.
The Greco-Roman period had a lot of doctrines evolving and the natural
law of Stoicism was one of them. This period is believed by many academicians
as the initial origin of human rights. According to Stoicism, there is a universal
force that is seen to pervade the entire creation and hence human conduct
should also be judged as per the laws of nature.
Christian period
Though the natural law as an ideology continued after the Roman period and led
to the evolution of human rights, initially the natural law was accepted as the Will
of God as defined by the holy scriptures. The church was seen as the
personification of divine law and could actually override the state. As per the
views spread by Christianity, all laws, government and property were supposed
to be ignored or discarded as all these were products of sin.
Medieval Age
During the middle ages, human rights started evolving from their earlier forms
and gained momentum in the form of natural laws. St. Thomas Aquinas was a
person who made significant contributions to initiate and ensure an acceptance
between the church and the natural laws. He classified four kinds of law in his
Summa Theology and explained natural law as the discovery of eternal law. In
his point of view, this discovery is achieved through reason and this reason is
actually a manifestation of religion.
Social Contractualist
The idea of positive law became the next foundation for the human rights. The
positive law that was interpreted as the natural law was vague and hollow and
can also be interpreted in different ways in the eyes of Thomas Hobbes. Human
rights thinking developed new angles of thought based on the works of John
Locke. John Lockes theory on human rights claimed that each and every individual
has equal right to life, liberty and freedom. These ideas were based on rational,
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equal men and the natural rights given by god. It has been seen that many
governments who disregard these rights become tyrannies which results in
their losing the power and right to rule. The Lockean tenets actually formed the
point of origin that culminated in the revolutions of the century. The American
society was pervaded by the natural rights and the American could view the
British rule only as a violation of their natural rights. The essence of the Lockean
principles are found in the American Declaration of Independence and according
to its claims, all men are created as equals and thus have the right to life, liberty
and pursuit of happiness. The Bill of Rights which constituted a set of
amendments to the US constitution, the justification of these rights is provided
by appealing to the natural rights that are pivotal in the Rights of God.
During the Middle Ages and later during the Renaissance period, there
was a greater emphasis on individuals and individual rights. This was due to the
fact that the church was undergoing a gradual decline in its power and standing
in the society. This shift from church to individuals saw the individual expression
flourish.
Positivist
Positive laws became the main source of human rights after the decline of natural
law conception of human rights. The main writers of the theory of positivism are
Austin and Bentham. According to positive laws human rights are not considered
absolute and can be given, taken away or modified to suit the needs of society.
Jeremy Bentham sums up the essence of the positivist view as : Right is a child
of law; from real laws come real rights, but from imaginary law, from laws of
nature, come imaginary rights.Natural rights is simple nonsense.
This transfer of abstract ideas regarding human rights and their relation to
the will of nature into concrete laws is exemplified best by various legal documents
that specifically described these rights in detail:
British Magna Carta (1215)
As per these regulations, there could be no confiscation of land and property;
laws deserve respect from the judges and taxation has to be enforced only with
common council. The idea of Jury trial (Clause 39) is a significant aspect of the
Carta which prevents arbitrary arrest/punishment for the individuals in a society.
It was the Carta which declared that the King was not the absolute power and it
was revised into the Bill of Rights later in the year 1689.
French Declaration of the Rights of Man (1789)
The National Assembly was constituted by the French people who harboured
views that government corruption and public misfortune were largely due to the
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ignorance, neglect and contempt of individual rights. Their representatives
proposed to have a declaration for the natural, unalienable, and sacred rights of
man. This was intended to remind the social bodys members about their rights
and duties with its constant presence before them. This could provide for instant
comparison of the acts of the legislature and the executive with respect to the
purposes of these political establishments and generated respect for them. By
ensuring that simple and incontestable principles are used to redress the
grievances of its people, the declaration was drafted to aid the maintenance of
the constitution as well as safeguard the peoples interests. Hence, the National
Assembly proclaimed in the presence and under the auspices of the Supreme
Being. Under the Declaration, rights of men and citizens includes guarantee of
equality, liberty, free speech and specified that law can only be an expression of
the general will of the people.
Apart from aforementioned documents, there are various other documents
that also mirror the notion of human rights and assist in their development and
growth. In the beginning of 19
th
century, constitutional laws in many countries
realized the importance of human rights and that human beings possess certain
rights. All this suggested that individual personality began to be recognized.
2.7.2 Human Rights in Post World Wars Era
When we study the traditional international laws, it is observed that human beings
had no rights in the laws that determine relations between the states. A stateless
person had virtually no protection and the individuals power was confined to the
states jurisdictions. Thus the international law had far reaching consequences
for the individuals and we can catch a few exceptions. Some of these could be
listed as other state interventions in humanitarian grounds, definition of
sovereignty in the form of treaties and the League of Nations mandate system.
The annihilation of Jews, Sinti and Romani communities along with
homosexuals and disabled people during the Second World War by the Nazis
of Germany resulted in human rights entering the limelight. The trials for the war
crimes crimes against peace and crimes against humanity were held at
Nuremberg and Tokyo after the end of the war. The officials from the countries
that were defeated were tried there. Here, utilitarianism or positivism could not
weaken naturalism while solving the issues. The concept of human rights seemed
more relevant and when it came to that, national interests were not considered
violated by the political powers which had authority.
The concept of gross human rights violations was introduced into the
international arena by the Nuremberg War Crimes Tribunal after the Second
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World War. Every German soldier who was involved in the crimes against
humanity faced individual charges and this new beginning in human rights after
the war was in fact a direct reaction to the horrors witnessed during the Second
World War.
Robust waves of human rights swept across the world in the following
years which can be aptly divided into three phases based on the events that
happened around that time.
Normative Foundation
The Second World War was actually the catalyst that triggered the human rights
movement. The United Nations Charter which was framed after the war asserted
that a respect for human rights and fundamental freedoms were among the
pivotal points of the organization. In 1948, the UN declared the international human
rights norms and the UDHR was released by the assembly.
The UDHR (also called International Magan Carta) took the revolution
triggered by the United Nations Charter a little further. How a government treats
its own people has become a legitimate international concern and cannot be
ignored as a domestic issue. According to the UDHR all rights are actually
interdependent and are not divisible. It is very forcefully and appropriately asserted
in the preamble of the UDR that:
WHEREAS recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world..
The UDHR has substantially influenced policy making with respect to
Human Rights. The principles of UDHR have been accepted and
incorporated into the constitutions of more than 185 nations in the UN.
Even though this declaration is not legally binding, the Universal
Declaration has achieved the status of customary international law
because people regard it as a common standard of achievement for all
people and all nations.
Though the League of Nations was in existence it had no authority to handle
human right issues. Though the UN Charter was expected to develop a powerful
international body for human rights, it did not because of the difficulties faced by
the deciding authorities. The smaller countries that were in support of including
Bill of Rights in the Charter did not have the political influence that was required
leaving the human rights provisions of the San Francisco Charter vague and
weak. Inspite of all these, the human rights provisions had very important
consequences which may be listed as:
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The UN Charter made human rights as an international concept. Even if
all the matters did not come out of the domestic jurisdiction because of
that very fact, human rights gained significance and acceptability.
The UN could gather a legal authority worldwide and embark on an
elaborate effort towards defining and codifying these rights. This was made
possible only because of the obligation that the member states of the
United Nations have to cooperate with the activities of the organization in
promoting human rights in the world.
Above everything else, the success of the efforts put in by the United
Nations is witnessed in the International Bill of Rights as well as the many
international human rights guidelines and codes available today, across
the world.
Institution Building
The 1960 saw the emergence of the next phase in international human rights
law and it continued to flourish in the decades that followed it. A second wave of
activism was witnessed in the states of Asia and Africa that had gained
independence recently. Several important covenants and conventions were
organized and these along with the Declaration constituted the core of the
international human rights norms in a written format. There were two separate
milestones in the UNs framework. The first was a focus on the human rights
obligations of the member states (in the Articles 55 and 56) and the vagueness
witnessed in the terms to promote was resolved by the ECOSOC resolutions.
The UN Commission on Human Rights drafted two treaties the ICCPR
(International Covenant on Civil and Political Rights and its optional protocol)
and the ICESCR (International Covenant on Economic, Social and Cultural
Rights) with the intention of enforcing the principles specified in UDHR. These
were combined with the Universal declaration to constitute the International Bill
of Human Rights. Apart from this bill, the UN has additional principal treaties
(numbering more than 20) that list out details of human rights. Provisions for
prohibition of genocide and torture, especially for the protection of very vulnerable
sectors of the population like refugees, women and children have been put in
place. Now we see that the regional documents related to human rights in Africa,
Americas and Europe are actually extensions of the International Bill of Human
Rights. These documents along with the very popular movements in China,
Korea and other Asian nations stand testimony to the influence of the human
rights principles.
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Implementation and the Post Cold War Period
It is true that there was a remarkable development of human rights regulations
in the international scenario. But this was handicapped by the hidden political
agendas of the Cold War. There was a high polarization and politicization of the
human rights issues with warring East and West opinions with the South clinging
on to its own views. A third wave was witnessed with the contempt against the
overthrow of Chiles Allende government (1973), the enforcement of the 1966
Covenants as well as the initiation of Carters presidency in the US. The foreign
aid provided by the US was proportionate to the human rights performance of
the beneficiary nations in the 1970s. The non-governmental human rights
organizations (like the Amnesty International) also came into existence during
this period. Many European countries came out of communist rule with the end
of the Cold War and went on to transform themselves into democratic entities.
We can find that the end of the Cold War resulted in significant changes on
human rights and this is witnessed in the Vienna and Programme of Action
which was adopted at the World Conference on human rights ( Vienna, June
1993).
The end of the Cold War in the early 1990s marked a new milestone in the
activity and functioning of the human rights proponents. We find that human
rights has gained more visibility in political language and political establishments
and is found to play a more active role in the world affairs of current global
society. With the General Assembly and Human Rights Commission becoming
more active, there is a new wave of human rights activism. The UN goals of
peace keeping have become increasingly associated with human rights
protection. While genocides in Burundi, East Pakistan and Cambodia could elicit
only verbal concerns, now, there are peace-keepers in El Salvador, Haiti,
Guatemala and Rwanda who have specific commands for any investigation
into violations of human rights. International tribunals have been instituted in
Rwanda and Yugoslavia to try human rights crimes and this is the first time it
has happened after Nuremberg.
International politics influences international human rights commitments
to a great extent. Pointing out conflicting cases where there were different
reactions of action or withdrawal in what can be called similar circumstances
is easy. The war in Iraq, though partly justified by human rights claims and the
unwillingness to interfere in the genocidal civil war of Sudan is a classic example
of this political influence.
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After the end of the Cold War, we find an increase in the use of human
rights language in the arena of International power politics. Though the rhetoric
might often hide the true intentions behind them, they do reflect the accepted
values of the world in the present day scenario.
The United Nations was established primarily to improve international peace
and avoid conflicts. The governments of various countries committed themselves
to the cause of United Nations after they could see the benefits. Ensuring that
no one is denied life, freedom, food, shelter and nationality suddenly gained
significance. President Franklin
Delano Roosevelts State of the Union Address reflect the influence of
human rights where he called for a world with four essential freedoms freedom
of speech, freedom of religion, freedom from want and freedom from fear. There
were clarion calls across the globe to ensure that basic human rights standards
were provided to protect citizens from abuses by the state and to ensure that
governments are held accountable for the human rights standards of those living
within its borders. These voices had clearly influenced the San Francisco meeting
which led to the drafting of the United Nations Charter in 1945.
The collective or group rights emerged in the post world war era as a new
form of human rights. These essentially safeguard and promote the cause of
vulnerable groups like women, children, differently- abled, minorities etc.
Activity 2
Research Greenpeace on the Internet and understands its objective and
functioning. Also, find out a recent achievement of Greenpeace
Self-Assessment Questions
11. Fill in the blanks with appropriate words:
(a) The roots for the protection of the rights of a man may be traced as
far back as in the_____________.
(b) The United Nations Charter (1945) was drafted in the __________
meeting.
12. State whether the following statements are true or false:
(a) In his 1941 State of the Union Address, President Franklin Delano
Roosevelts spoke of a world founded on four essential freedoms:
freedom of speech and religion and freedom from want and fear.
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(b) The latter half of the 20th century saw a rapid development of human
rights norms-setting in international venues, which led to the political
agenda of the Cold War favouring the issue.
2.8 Critical Theories of Law
Critical legal theory has a very complex structure within and outside the traditional
legal thought. On the close observation of legal thought, the most conspicuous
point of departure is legal realism. The very fact that the connection is conspicuous
tends to paint a reductionist picture of both the phenomena connected.
2.8.1 Legal Realism
John Chipman Gray and Oliver Wendall Holmes, among others, were the thinkers
who inspired the legal realist movement and this gained popularity through the
works of Karl Llewellyn, Jerome Frank, and Felix Cohen and grew to great heights
during 1920s and 1930s. the conceptual approach that was the hall mark of the
naturalists and the positivists was ignored and the empirical analysis was
favoured. These actually made it seem that the judges really decided the cases.
Thought the idea of constraining the judges with rules was not completely rejected
by the realists, they continued to believe that the judges could create new laws
at their discretion. From the realistic point of view, judicial decision relies on the
moral and political issues of the case rather than on the theories of naturalism
and positivism.
Legal reasoning was found to be combined with syllogistic reasoning when
legal realism emerged in the face of legal formalism. According to the formalistic
principles, the legal outcome should be a logical end that could be achieved
from relevant facts and the legal rules. From the realistic point of view, formalism
actually undermines the judicial lawmaking process and seeks to define the
legal outcomes as the result of the application of rules and facts. In that sense,
when the legal outcomes are already implied by the propositions that would bind
the judges, judges would not have any legal authority to reach outcomes that
would be conflict with one another.
If we try to characterize legal realism, it can be seen that it roughly falls
into three categories.
The legal material which is available would be insufficient to bring about a
very logical analysis and in most cases would not be worth a litigation at
the appellate level
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In cases with insufficient legal material, new laws are made by the judges
to decide on the legal disputes by exercising the power of law making
discretion and
In countless cases, judicial decisions have been found to be influenced
by the judges own political and moral convictions and not as they should
be done based on the legal implications.
Of course the third claim is entirely independent of the first and the second
claims. However, the first claim might be seen as leading to the second claim
where we find judges creating new laws while in the process of deciding legally
indeterminate cases.
The relation between legal realism, formalism and positivism is worth a
mention at this point and while we find positivism entails formalism, we also find
that legal realism is actually consistent with the principles of positivism. It is also
seen to presuppose the truth in the core principles of positivism. When we hear
the views of the realists, though law is essentially a product of the official process,
we find that judicial lawmaking is more frequent than what we presume. But the
truth of positivism is presupposed by the concept of law is a product of official
activity. In spite of the empirical preoccupations of the realists, the associated
commitments at the conceptual level were actually positive.
2.8.2 Critical Legal Studies
The Critical Legal Studies (CLS) movement is based on the legal realism which
finds itself extending its horizons into a Marxist critique of the mainstream liberal
jurisprudence. The supporters of the CLS movement hold the view that the extent
of indeterminacy is undermined by the realists, who ascertain that it is natural to
find indeterminacy in certain cases. Still, according to the CLS theorists, the law
is being globally indeterminate, i.e. the class of available legal materials rarely
results in a unique and logical outcome.
CLS theorists have always insisted on the law being shaped by ideological
inputs. However, the law materials in the case of liberal democracies do suggest
that the ideological struggles between the different factions of the society actually
compromise and truncate the aspects of justice and goodness in socio-political
life. These struggles are often found to reflect in the inconsistencies of law which
leads to indeterminacy in the law. This aspect of inconsistency in the law gives
a judge a lot of free ground to justify a number of conflicting cases.
In a liberal view, the judge can only interpret the law and cannot be making
the law, which is left to the government legislators. This is suitable in a democratic
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setup where the legislators are accountable to the electorate. In the case of
radical indeterminacy in the law, a judge should decide cases only by making
new laws and this process is actually inconsistent with the law making authorities
and their legitimate sources.
Self-Assessment Questions
13. Fill in the blanks with appropriate words:
(a) The legal realist movement was inspired by the likes of ________
and __________.
(b) CLS theorists emphasize the role of ______ in shaping the content
of the law.
14. State whether the following statements are true or false:
(a) While formalism is often thought to be entailed by positivism, it turns
out that legal realism is not only consistent with positivism, but also
presupposes the truth of all three of positivisms core theses.
(b) According to traditional liberal conceptions, the province of judges is
to not only interpret law but make the law.
2.9 Summary
Let us recapitulate the important concepts discussed in this unit:
In the course of human history, human rights are regarded as an evolving
phenomenon.
Throughout the ages it has been observed that the concept of human
rights has been sophisticatedly linked to laws, customs and religion.
The Greek philosophers Socrates and Plato defined natural law as a law
that reflected the natural order of the universe and most importantly the
will of gods who controlled nature.
There is a huge difference among human rights of today and natural rights
of the past. In ancient times if was considered perfectly normal to keep
slaves which is outright negation to the right of freedom and equality which
is associated with present-day human rights.
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The idea of positive law gave birth to the next fundamental philosophy of
human rights. Thomas Hobbes, an English philosopher known for his
political thought viewed natural law as to not only being vague and hollow,
but being available to different interpretations. Hence, under positive law,
human rights can be given, taken away and modified according to the
need and requirement of the society.
Plato believes in the concept of universal truth and virtue. According to
him human rights are universal and therefore are above the laws of individual
state. Aristotle was of the view that different social classes existed in the
world vis--vis accepting the fact that an underclass or slave class will
always prevail and thus considered this perfectly normal.
Changes in positive law were made consecutively in order to include the
fact that states law stemmed from a constitution which is considered the
legal structure on which society functions.
The social contract theory designed by Rousseau stated that all individuals
in a society and entered into a contract to form a civilized society in
exchange of equality from the government.
According to Rawls, the state should distribute everything equally amongst
its people. Unequal distribution should only be permitted if it proves to be
beneficial to the economically lower classes.
One major event in the history of human rights was the signing of the
Magna Carta, where an English monarch King John agreed to set the
rights of all people into law.
One of the major documents of French Revolution namely The Declaration
of the Rights of Man and of Citizen defined individual and collective rights
of a person.
The United Nations came into existence after the Second World War and
its main task was to establish rights for all individuals, irrespective of the
fact as to where they lived. This led to the documentation of the Universal
Declaration of Human Right (UDHR). The United Nations General
Assembly adopted UDHR in the 1948 and was headed by Eleanor
Roosevelt.
It is useless to even trace the evolution of human rights as these rights
are inalienable and inherent. It would be better to trace their evolution in
terms of application vis--vis rule of law and government.
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The American Declaration of Independence was deemed a history-making
document, for it contained the basic doctrines of an independent state
which promotes the rights of an individual and rejects the feudal nature of
government. It can be rightly said that the seeds of modern struggle to
uphold human rights lay in the American Declaration of Independence.
The phenomenon of human rights has been constant in European thought
for many centuries, at least since the time of Englands King John. It has
been said that King John violated a number of ancient laws and customs
by which England was ruled. It was due to this reason that his subjects
forced him to sign the Magna Carta, which is also known as the Great
Charter
Human rights activism in the late 19th century and early 20th century
remained largely connected to political and religious groups and their beliefs.
In order to propagate human rights, revolutionaries pointed at the brutality
of state and strongly emphasized on the fact that there ideology was
necessary to bring about change and end to government atrocities.
Human rights are key to the stability and development of all countries.
Major emphasis is given to the international conventions of human rights
to ensure a universal standard of acceptability.
A major area of concern for both humanists and atheists is the task of
defining non-religious rules with respect to ethics and morality. This view
has partly gained importance as some are of the belief that individuals
who have no religious beliefs also lack morality and have no ethical
foundation.
The concept of utility as a moral principle is broad. It may include anything
useful or beneficial to human welfare. This can mean happiness, love,
and knowledge as well as material well-being.
A fundamental flaw in the application of religious morality is that it cannot
be universal, as different religions define different laws of morality.
Religions have further difficult problems when evaluated in reference to
the most important universal principle of honesty. An essential ingredient
of most religions, are claims regarding the existence of supernatural beings
and events.
While proclaiming morality in absolute terms, the various religions in effect
give rise to the moral relativism that they claim to oppose.
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Religions assume a prominent but unwarranted role in the perception of
most societies as being arbiters and custodians of morality.
There are some distinct advantages in basing human rights on the needs
of subsistence. The prime benefit lies in universality possible with this
foundation that eludes the other approaches to human rights that have
been outlined above.
The history of human rights covers thousands of years and draws upon
religious, cultural, philosophical and legal developments throughout the
recorded history.
The roots for the protection of the rights of a man may be traced as far
back as in the Babylonian Laws
After the end of the Cold War, the international willingness to use the human
rights language in international power politics has become larger.
2.10 Glossary
UDHR: Universal Declaration of Human Rights, a declaration adopted by
the United Nations General Assembly
Autonomy: Self-government or the right of self-government
Human rights: Commonly understood as inalienable fundamental rights
to which a person is inherently entitled simply because she or he is a
human being
Ethics: A branch of philosophy that addresses questions about morality
that is, concepts such as good and evil, right and wrong, virtue and vice,
justice and crime, etc.
2.11 Terminal Questions
1. Explain how did the concept of human rights develop?
2. Discuss the social science approach to human rights.
3. What is the importance of religion and morality in the development of
human rights?
4. Explain the theoretical foundation of human rights.
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5. What is the significance of the Magna Carta and the French Declaration
of the Rights of Man?
6. Explain the internationalization of human rights.
7. Write a short note on legal realism.
2.12 Answers
Answers to Self-Assessment Questions
1. (a) Babylon; (b) Nelson Mandela
2. (a) False; (b) True
3. (a) Positivist; (b) Historical
4. (a) True; (b) False
5. (a) Gods commands; (b) Utilitarianism
6. (a) True; (b) True
7. (a) Morality; (b) Governments
8. (a) True; (b) False
9. (a) Dignity; (b) Non-violent
10. (a) True; (b) False
11. (a) Babylonian Laws; (b) San Francisco
12. (a) True; (b) False
13. (a) John Chipman Gray, Oliver Wendall Holmes; (b) ideology
14. (a) True; (b) False
Answers to Terminal Questions
1. Refer to Section 2.2
2. Refer to Section 2.3
3. Refer to Section 2.4
4. Refer to Section 2.6
5. Refer to Section 2.7
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6. Refer to Section 2.7
7. Refer to Section 2.8.1
2.13 Further Reading
1. Indian Institute of Human Rights. Principles and Theories of Human Rights,
Volume 1 of Distance Learning Post Graduate Programme in Human
Rights. Indian Institute of Human Rights.
2. Donnelly, Jack. Universal Human Rights in Theory and Practice. New
York: Cornell University Press, 2003.
3. Claude, Richard Pierre, Burns H. Weston. Human Rights in the World
community: Issues and Action. Philadelphia: University of Pennsylvania
Press, 2006.
References
Donnelly, Jack. Universal Human Rights in Theory and Practice. Cornell University Press,
2003.
Talwar, Prakash. Human Rights. Gyan Books, 2006.
United Nations Universal Declaration of Human Rights.
Unit 3 Organizations Related to Human Rights
Structure
3.1 Introduction
Objectives
3.2 UN and Its Specialized Agencies
3.3 General Assembly
3.4 Security Council
3.5 ECOSOC
3.6 UN Commission on Human Rights
3.7 UN and National Human Rights Institutions
3.8 Regional Commissions on Human Rights
3.9 Summary
3.10 Glossary
3.11 Terminal Questions
3.12 Answers
3.13 Further Reading
3.1 Introduction
In the last unit, we studied various theories and principles pertaining to human
rights. A vivid description of the origins and evolution of human rights has been
discussed which prove helpful in the understanding of human rights.
In this unit, we will study about organizations that are related to human
rights. The UN and its specialized agencies play an important role in the protection
of human rights. The United Nations General Assembly is one of the five principal
organs of the United Nations with equal representation from the member nations.
The role of the body is to get reports from different UN bodies and make proposals
in the form of General Assembly Resolution.
Objectives
After studying this unit, you should be able to:
Explain the role of the UN and its specialized agencies for the protection
of human rights
Recognize the role of the United Nations General Assembly
Describe the working of the Security Council as a body for maintaining
international peace and security
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Identify the responsibilities of ECOSOC
Explain the structure and working of the UN Commission on Human Rights
Describe various National Human Rights Institutions
3.2 UN and Its Specialized Agencies
Specialized agencies are autonomous bodies that work with the UN and with
each other. These agencies are coordinated at the inter-governmental level
through the Economic and Social Council (ECOSOC), and at the inter-secretariat
level through Chief Executives Board (CEB). Currently, the UN has 17 agencies
that perform various functions on its behalf. However, not all these agencies
were originally created under the United Nations but were incorporated in the
system by ECOSOC under the Articles 57 and 63 of the United Nations Charter.
These specialized agencies are:
1. Food and Agriculture Organization (FAO)
2. International Civil Aviation Organization (ICAO)
3. International Fund for Agricultural Development (IFAD)
4. International Labour Organization (ILO)
5. International Maritime Organization (IMO)
6. International Monetary Fund (IMF)
7. International Telecommunication Union (ITU)
8. United Nations Educational, Scientific and Cultural Organization
(UNESCO)
9. United Nations Industrial Development Organization (UNIDO)
10. Universal Postal Union (UPU)
11. World Bank Group
(i) International Bank for Reconstruction and Development (IBRD)
(ii) International Finance Corporation (IFC)
(iii) International Development Association (IDA)
12. World Health Organization (WHO)
13. World Intellectual Property Organization (WIPO)
14. World Meteorological Organization (WMO)
15. World Tourism Organization (UNWTO)
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16. Former specialized agencies
17. Related and comparable Organizations
(i) International Atomic Energy Agency (IAEA)
(ii) World Trade Organization (WTO)
(iii) Organization for the Prohibition of Chemical Weapons
(iv) CTBTO Preparatory Commission
Food and Agriculture Organization (FAO)
The Food and Agriculture Organization (FAO) of the United Nations leads
international efforts to defeat hunger. Being the largest of the UN specialized
agencies, FAO is a neutral forum that serves all nations and provides a platform
for both developed and developing countries to discuss agreements and debate
about policies. The body works towards improving agricultural productivity, raising
nutrition levels, enhancing the lives in rural areas and contributing towards the
growth of the world economy. FAO is headquartered in Rome, Italy.
International Fund for Agriculture Development (IFAD)
Established in 1977 as an international financial institution, International Fund
for Agriculture Development (IFAD) is a result of World Food Conference held in
1974 after the drought in Sahel region of Africa. It is committed to eliminate
poverty from developing countries. The headquarters of the agency is in Rome,
Italy.
International Labour Organization (ILO)
The International Labour Organization (ILO) deals with labour issues. Its
headquarters are in Geneva, Switzerland. Founded in 1919 after the Treaty of
Versailles was signed, ILO was originally an agency of the League of Nations. It
became a part of the UN system at the end of World War II when the UN was
formed and the League collapsed. Its secretariat is known as the International
Labour Office.
International Maritime Organization (IMO)
International Maritime Organization (IMO) was established in 1948 to regulate
worldwide maritime safety and practices. Formerly known as the Inter-
Governmental Maritime Consultative Organization (IMCO), the agency took
almost ten years to come into full-force. The agency works towards improving
maritime safety and prevents marine pollution by encouraging governments and
shipping companies to work in tandem.
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Headquartered in London, United Kingdom, the IMO is run by a group of
members and is financially administered by a Council of members elected from
within the Assembly. Its work is conducted through five committees which are
backed up by sub-committees. Proceedings of the IMO may be supervised by
the member Organizations of the UN which can be competent non-governmental
Organizations as well. The secretariat of IMO consists of a Secretary-General
who is elected by the Assembly and various other divisions.
International Monetary Fund (IMF)
The role of International Monetary Fund (IMF) is to provide financial stability and
monetary support. It acts as a platform for discussion, advice and providing
assistance related to financial matters. It is headquartered in Washington, D.C.,
United States.
United Nations Educational, Scientific and Cultural Organization
(UNESCO)
Established in 1946, the role of United Nations Educational, Scientific and Cultural
Organisation (UNESCO) is to encourage peace and security. The UNESCO
promotes respect for justice, human rights and fundamental freedoms, as
mentioned in the UN Charter by bringing further the cooperation among nations
through education, science and culture. The specialised agency of United Nations
is headquartered in Paris, France.
United Nations Industrial Development Organisation (UNIDO)
The headquarters for the United Nations Industrial Development Organisation
(UNIDO) are located in Vienna, Austria. The primary goal of the agency is to
boost industrial development, in countries where economic environment is
changing, and to promote industrial cooperation across borders. The
Organization works towards improving living conditions, reducing poverty and
achieving the Millennium Development Goals. It works on three main thematic
areas:
Poverty reduction through productive activities;
Trade capacity-building; and
Energy and environment.
World Health Organization (WHO)
The World Health Organization (WHO) acts as a coordinating authority on
international public health.
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WHO originates from the Health Organization which was an agency of
the League of Nations. WHO was established on 7 April 1948 and it acquired the
role and resources of its predecessor. The headquarters of this agency is in
Geneva, Switzerland.
Activity 1
Surf the internet and write a detailed article on WHO.
Self-Assessment Questions
1. Fill in the blanks with appropriate words:
(a) The __________of the United Nations leads international efforts to
defeat hunger.
(b) The _____________ acts as a coordinating authority on international
public health.
2. State whether the following statements are true or false:
(a) The International Labour Organization (ILO) deals with labour issues.
Its headquarters are in Paris, France.
(b) The United Nations Industrial Development Organization (UNIDO) is
a specialized agency of the United Nations system, headquartered
in Vienna, Austria.
3.3 General Assembly
The United Nations General Assembly (UNGA/GA) is one of the five principal
organs of the United Nations with equal representation from the member nations.
The role of the body is to get reports from different UN bodies and make proposals
in the form of General Assembly Resolution. Additionally, it also manages its
funds and appoints non-permanent members to the Security Council.
Composition
The UN General Assembly holds annual meeting under it Secretary-General
between September and December which begin again in January until all the
issues are discussed. These sessions can start again in case of emergency or
under special circumstances. Chapter IV of the United Nations Charter deals
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with the UN General Assembly particularly its procedure, composition, functions,
powers and voting. The first session took place on 10 January 1946 in the
Westminster Central Hall, London and was attended by representatives from
51 nations.
The General Assembly takes voting on issues related to members election,
admission, suspension and expulsion. It also conducts voting on peace and
security; and fund-related issues. The decision on these matters is taken based
on two-thirds majority of those present and voting, rest other issues are decided
by majority vote. Each member country has one vote. The Assembly can make
any suggestion on any matter within its ambit, however, any recommendation
related to peace and security is considered by the Security Council. These issues
are determined keeping in mind two-thirds majority of those present and voting,
and the other issues are determined by majority voting. Each member country
in the assembly has one vote. Assembly declarations, except for the matters
relating to budget, including the adoption of a scale of assessment, are not
obligatory for the members. The principle of one state, one vote power allows
countries that constitute only eight percent of the world population, to pass a
resolution by a two-thirds vote.
Due to the changing framework of UN membership and exceptional growth
in 1980s, the Assembly became a platform to discuss various issues. These
discussions were primarily about the issues between developed industrialized
countries and developing countries, and came to be known as North-South
dialogue. When the UN was established in 1945, it had only 51 members and
now it consists of 193 members of which two-third are developing countries.
Primarily due to their representation, developing countries are able to dominate
the agenda of the Assembly (using groups like the G77), nature of its debates as
well as its decisions. Because of this, the UN has emerged as a primary centre
for developing countries for political influence and foreign relations initiatives.
Functions and Powers
The General Assembly is the main planning body of the UN that takes decisions
on critical issues such as budget, peace and security, and admission of new
members that requires a two-thirds majority. However, decisions on other matters
are taken on the basis of simple majority. Each country has one vote and some
member States in arrears of payment may also be allowed to vote. The General
Assembly has set up various councils, working-groups and boards to monitor
its day-to-day functions. It has its own set of rules and regulations and an elected
head, President, for each session.
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The General Assembly is the main decision-making body of the UN. It was
established in 1945 under the Charter of United Nations with the role to take
decisions and discuss issues mentioned in the Charter. It comprises of 193
countries as its members and plays critical role in setting standards and
systematisation of international law.
According to the Charter, the General Assembly can:
make suggestions to maintain peace and security, including limiting the
size of arms and armaments.
discuss issues related to peace and security and make suggestions.
However, it can not discusses the cases that are already being discussed
by the Security Council.
discuss and propose on any issues within the scope of the Charter (with
the same exception).
take measures to promote international cooperation, develop International
Law, create awareness about human and fundamental rights. It can also
propose initiatives to promote cross-border cooperation in the field of health,
economy, education and cultural.
suggest methods for peace settlements between countries to prevent
dissonance.
get reports from other UN bodies including Security council.
approve and audit budgets of member states.
admit non-permanent members of Security Council and other UN bodies
on the suggestion of Security Council. It can also appoint the Secretary-
General.
If there is a threat to peace and possibility of a hostile environment, UNGA
can interfere as per the Uniting for Peace declaration of November 1950
(resolution 377 (V). According to the declaration, when the Security Council fails
to act and a negative vote is cast by a permanent member, the UNGA can take
measures to restore peace and security and make suggestions to members In
case, the UNGA can take action. However UNGA, on international issues, can
only make non-binding recommendations but it has taken measures which have
had an impact on lives millions of people around the world.
At the Millennium Declaration of 2000 and World Outcome Document of
2005, the member countries of UN adopted a two-fold agenda to strengthen the
UN, first to maintain peace, security and disarmament; secondly to reduce
poverty, prevent human rights and environment;.
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In order to garner support for its decision, the assembly has recently has
started taking decisions based on the consensus rather than through voting.
The president after discussing with members and reaching a consensus can
declare a resolution to be accepted with any formal voting.
The General Assembly functions through six main committees. These
are:
(a) First Committee - Disarmament and International Security Committee.
(b) Second Committee - Economic and Financial Committee.
(c) Third Committee - Social, Humanitarian and Cultural Committee
(d) Fourth Committee - Special Political and Decolonisation Committee
(e) Fifth Committee - Administrative and Budgetary Committee
(f) Sixth Committee - Legal Committee
Self-Assessment Questions
3. Fill in the blanks with appropriate words
(a) The United Nations General Assembly (UNGA/GA) is one of the
_______ principal organs of the United Nations.
(b) Established in _____ under the Charter of the United Nations, the
General Assembly occupies a central position as the chief
deliberative, policymaking and representative organ of the United
Nations.
4. State whether the following statements are true or false
(a) The General Assembly meets under its President or Secretary-
General in regular monthly sessions.
(b) Each Member State in the Assembly has one vote.
3.4 Security Council
The main responsibility of Security Council is to maintain peace and security. A
member of Security Council is always present at the UN headquarters in New
York. In 1992 the Security Council held its first ever summit on 31
st
January
which was attended by all of its 15 member-countries. At this summit 13 Heads
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of State and Government were present and two Ministers for Foreign Affairs.
There is no location fixed for the meeting of council. In 1972 the council met in
Addis Ababa, Ethiopia, and in Panama City, Panama in 1973.
In case of any peace and security threat, the first and foremost task of
Security Council is to help resolve the situation with mutual consent. The council
can also initiate investigation and appoint a special representative. However, if a
dispute has led to agitation, the council can order cease-fire to prevent any
hostilities. In order to maintain a peaceful environment and reach a settlement,
the council can also send UN Peacekeeping troops. To restore peace between
conflicting countries, the council can take enforcement measures, apply
economic penalties or even take military actions. If such measures are taken
against a member country, that country may not be allowed to use its privileges
at the General Assembly. It may also be expelled if it continues to offend the
charter. Both member and non-member countries of the Council are allowed to
participate in discussions, if they are a party to the dispute, however only a
member country is allowed to vote at the council.
Members
The Security Council consists of five permanent members and ten non-
permanent member. Presently China, France, Russian Federation, United
Kingdom and United States of America are the only five permanent member of
the council. General Assembly elects the non-permanent members of the council
for a period of two years. However, these non-member countries can not be re-
elected in succession.
Member states, based on their alphabetical listing, holds the office of
President of the Council every month. Any decision pertaining to procedures is
taken based on the A positive vote of nine out of 15 members is enough to take
a decision on issues pertaining to procedures, however a more critical issue
also requires the supporting vote of five permanent members. This is known as
the veto power- the rule of great unanimity.
Under the Charter, only Security Council has the power to make decisions
which are carried out by all the member states, however, the UN bodies can
only make suggestion to the governments.
3.4.1 Committees under Security Council
Standing Committees
Currently there are three committees and each includes a representative of all
Security Council members. These three committees are:
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1. Security Council Committee of Experts
2. Security Council Committee on Admission of New Members
3. Security Council Committee on Council meetings away from Headquarters
Ad Hoc Committees
They are established as and when required. They comprise of all Council
members. Some ad hoc Committees are:
1. Governing Council of the United Nations Compensation Commission
established by Security Council resolution 692 (1991)
2. Committee established pursuant to resolution 1373 (2001) concerning
Counter-Terrorism
3. Committee established pursuant to resolution 1540 (2004)
Sanctions Committees
1. Security Council Committee pursuant to resolutions 751 (1992) and 1907
(2009) concerning Somalia and Eritrea
2. Security Council Committee pursuant to resolution 1267 (1999) and 1989
(2011) concerning Al-Qaida and associated individuals and entities
3. Security Council Committee established pursuant to resolution 1518 (2003)
4. Security Council Committee established pursuant to resolution 1521 (2003)
concerning Liberia
5. Security Council Committee established pursuant to resolution 1533 (2004)
concerning the Democratic Republic of the Congo
6. Security Council Committee established pursuant to resolution 1572 (2004)
concerning Cte dIvoire
7. Security Council Committee established pursuant to resolution 1591 (2005)
concerning the Sudan
8. Security Council Committee established pursuant to resolution 1636 (2005)
9. Security Council Committee established pursuant to resolution 1718 (2006)
10. Security Council Committee established pursuant to resolution 1737 (2006)
11. Security Council Committee established pursuant to resolution 1970 (2011)
concerning Libya
12. Security Council Committee established pursuant to resolution 1988 (2011)
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Working Groups
Security Council Working Group on Peacekeeping Operations
Security Council Ad Hoc Working Group on Conflict Prevention and
Resolution in Africa
Security Council Working Group established pursuant to resolution 1566
(2004)
Security Council Working Group on Children and Armed Conflict
Security Council Informal Working Group on Documentation and Other
Procedural Questions
3.4.2 Functions and Powers
The Charter has underlined functions and powers of the Security Council. These
are:
to maintain peace and security across borders as per the principles and
purposes of the UN;
to examine any difference or condition which may lead to conflict;
to suggest ways of correcting such differences or the outline terms of
agreement;
to develop plans for the formation of a system to regulate arms;
to find out the cause of a threat to the peace or act of violence and make
suggestion to maintain international peace;
to call on members to use funds and other aids not involving the use of
arms to prevent or stop any aggression;
to use force against an aggressor;
to invite suggestions to admit new members;
to exercise the role of trusteeship in strategic areas;
to suggest for nomination of Secretary-General to UNGA, along with the
Assembly;
to elect the judges of the International Court of Justice.
3.4.3 Reforms of Security Council
The United Nations Security Council (UNSC) covers five key issues:
1. Types of membership
2. Question of the veto held by the five permanent members
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3. Regional representation
4. Size of an enlarged Council and its working methods
5. The relationship between Security Council and General Assembly
Since 1945, political and geographical boundaries have changed but
Security Council has only undergone minor changes. Post World War II, the
winning nations shaped the Charter, favouring their own countries and retaining
permanent seats and veto power with them. However, with decolonisation and
increasing confidence of new members, old ways are gradually being challenged.
As the inadequacy of number of seats and members because evident, Security
Council in 1965 increased the number of non-permanent members to 10 from
six.
In 1992 Boutros Boutros-Ghali, when UN Security Council again launched
discussions on reforms, at his first ever summit published An Agenda for Peace
to change the old procedures of UN bodies.
The year 1992 marked the formation of G4. Germany (second largest
contributor to the UN), Japan (third largest contributor to the UN), Brazil (fifth
largest country in terms of territory) and India (second largest country in terms
of population) petitioned for a permanent seat at the UN Security Council as
they identified themselves as powerful countries within their regions. These four
countries together form G4. Their regional competitors were against G4 getting
a permanent-member status at the Council with a veto power. However, these
rival countries were in favour of expanding the number of non-permanent
members and electing them on the basis of their region.
These countries together formed an interest group that came to be known
as Coffee Club and later Uniting for Consensus. The members of this group
are Italy, Spain, Argentina, Canada, Mexico, South Korea and Pakistan.
Considering the fact that large part of the agenda of Councils focuses on
developmental issues in Africa and historical injustices, the African groups also
appealed for two permanent seats at the Council that will rotate between African
countries chosen by the group.
Reluctantly, the five permanent members announced their positions. The
United States backed Japan and India for their permanent-member status in
addition to few non-permanent seats. The UK and France supported the G4 for
permanent-member status with expansion of permanent and non-permanent
members. The UK also supported the presence of African group on the council.
China supported Indias demand to give it permanent-member status and
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petitioned for a stronger representation from developing nations. Russia also
supported Indias demand.
3.4.4 India in Security Council
In 1945, India joined the UN and since then it has been the third largest contributor
of troops to the UN Peace keeping missions and main contributors to the UN
budget. India has so far been elected seven times at the member of UN Security
Council. Most recently, India was elected to the Security Council as a non-
permanent in 2011-12 by receiving 187 votes out of 190. It was supported by all
the five permanent-members of the UNSC. India is a nuclear power state with
worlds second largest population. It is also the worlds largest liberal democracy
and worlds tenth largest economy. It stands fourth in terms of purchasing
power parity and has worlds third largest active armed force.
The International Herald Tribune stated Clearly, a seat for India would make
the body more representative and democratic. With India as a member, the
Council would be a more legitimate and thus a more effective body.... Thomas
Friedman of the New York Times said Sometimes I wish that the five permanent
members of the UN Security Council could be chosen ... with a vote by the fans
... Then the permanent five would be Russia, China, India, Britain and the United
States. Thats more like it. India is the worlds biggest democracy, the worlds
largest Hindu nation and the worlds second-largest Muslim nation.
Exhibit 3.1
2011 Difficult for UN Security Council Unity
Growing acrimony among the permanent five members of the U.N. Security
Council is jeopardizing action on serious issues including the councils ability
to send a strong signal on the situation in Syria. From the United Nations,
Margaret Besheer reports 2011 has been a difficult year for the 15-member
council and tensions among the permanent five could make consensus-
building in 2012 a challenge.
The different political ideologies of the permanent five members - Britain,
China, France, Russia and the United States - have always made for an
interesting dynamic on the U.N. Security Council. But this year, relations among
the five have frayed over authorization of the NATO mission to protect Libyan
citizens and a difference of opinion about events in Syria where the U.N.
says more than 5,000 people have died during a government crackdown on
political dissenters.
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The divisions among the so-called P5 became even clearer this week, when
the Russian, American and French ambassadors took to the microphones
after a meeting on Libya Thursday.
The Russian Ambassador demanded an independent investigation into the
possibility that NATO bombings caused the deaths of some Libyan civilians.
His American and French counterparts said he was seeking only to divert
attention from events in Syria, an ally of Russia.
U.S. Ambassador Susan Rice told reporters that NATOs actions saved tens
of thousands of Libyan lives - an accomplishment she said that should be
celebrated - and she chided her Russian counterpart.
If the Libyans want to work with NATO to investigate any concerns they
have, we are more than willing to do that, said Rice. I think it is notable that
we have not heard that call from the Libyan government. So let us see this for
what it is - it is duplicative, it is redundant, it is superfluous, and it is a stunt.
And if others want to go along with it they can, but I did not hear a majority of
the members of the council indicate they think this is necessary.
Her French counterpart, Grard Araud, noted that there are already two on-
going investigations into how the Libyan crisis played out - one is being
conducted by the U.N. Human Rights Council and the other by the International
Criminal Court - and he brought the conversation back to Syria.
There are two on-going investigations, so why ask for a third one while we
do not have any investigation committee in Syria when in the last 3 to 4 days
more than 250 people have been killed, noted Araud. This is a bit strange.
So we can say that we have seen today one more ploy.
On Friday, Russian Ambassador Vitaly Churkin, who is president of the council
this month, expressed his frustration with his colleagues at a hastily called
news conference. He said the growing acrimony among the P5 is affecting
the councils work.
I am worried. It has been my fifth and toughest presidency. I think that as a
council we are not moving in a good direction, Churkin said. There is a lot of
nervousness, a lot of expectations that things are going to be done my way
or no other way. That what I need to have I must have now, no objections
entertained or no other views are entertained. I dont think this is a good way
to work in the council. I think that if this trend were to continue it might seriously
hurt the ability of the Security Council to work.
He said he does not know how to reverse this negative trend and said that
even on the smallest issues there have been disagreements.
Some council members say the Libya resolution has had a lasting impact on
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how some council members approach matters such as Syria and Yemen,
making them fearful of directly or indirectly authorizing outside intervention.
Other diplomats say it is just a convenient excuse to do nothing.
After Fridays press conference, Ambassador Rice tweeted a friendly holiday
message to Ambassador Churkin, but her spokesman tweeted a photo of a
storybook character who steals Christmas with the face of the Russian
diplomat super-imposed over the characters face.
As 2011 ends on a rocky note, it remains to be seen how the five powers will
work together in the new year. Meanwhile, the councils draft resolution on
Syria hangs in the balance as negotiations continue in this tense atmosphere.
Source: http://www.voanews.com/english/news/2011-was-Difficult-for-UN-Security-
Council-Unity-136186003.html
Accessed on 27 December 2011
Self-Assessment Questions
5. Fill in the blanks with appropriate words
(a) The __________has primary responsibility, under the Charter, for
the maintenance of international peace and security
(b) India has been elected ________times to the UN Security Council.
6. State whether the following statements are true or false
(a) India is the worlds tenth largest economy and fourth largest in terms
of purchasing power parity.
(b) The Security Council is composed of four permanent members
China, France, Russian Federation and the United States.
3.5 ECOSOC
Under United Nations Charter, the United Nations Economic and Social Council
(ECOSOC) was established as the primary body to manage economic and
social work of the specialized agencies of the UN, functional commissions and
regional commissions. Fourteen specialized agencies, five regional
commissions and 11 UN funds and programmes also report to ECOSOC. The
Economic and Social Council (ECOSOC) serves as the central forum for
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discussing international recommendations addressed to the member nations
and the United Nations system. Its responsibilities are as follows:
1. Promoting better quality of life, employment and socio-economic progress;
2. Identifying solutions to the global health and socio-economic problems;
3. Facilitating cultural and educational cooperation between countries; and
4. Creating awareness about human rights and fundamental freedoms
globally.
ECOSOC can initiate studies and reports on these issues. It is also under
its scope to assist in preparing and organizing major international conferences
to discuss on economic and social issues and also help in coordinating follow-
up to these conferences. With its wider set of responsibilities, the purview of
ECOSOC extends to over 70 per cent of the human and financial resources of
the entire UN system.
ECOSOC at Work
To fulfill its responsibilities, ECOSOC can consult business sector
representatives, intellectuals and around 3,200 registered non-governmental
Organizations. It holds a session every year in July for four weeks, alternately
between New York and Geneva. The session consists of various sections like
High-level Segment, Coordination Segment, Operational Activities Segment,
Humanitarian Affairs Segment and the General Segment.
The High-level segment is a forum to discuss issues of economic, social
and environmental development. The segment consists of ministers and
executive heads of international institutions, high-ranking officials, civil society
and private sector representatives. In 2005, ECOSOC was given two additional
responsibilities: 1) Annual Ministerial Review (AMR), 2) Development Cooperation
Forum (DCF). A Ministerial declaration is adopted at the end of the segment to
provide policy guidance and suggestions for action.
In recent years, ECOSOC has taken a lead role in key policy areas:
High-level Segment 2010: Focussed on Gender Equality and Womens
Empowerment and led to the formation of United Nations Women.
ECOSOC President Hamidon Ali said, women empowerment and gender
equality is at the core of development and peace.
High-level Segment 2009: Focussed on implementing development goals
and commitments in regard to global public health.
High-level Segment 2008: First biennial Development Cooperation Forum
and second Annual Ministerial Review was launched that focussed on
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implementing millennium goals and commitments to sustainable
development. The President of ECOSOC, Lo Mrors, mentioned the
2008 Substantive Session as historic as it enforced new functions of the
Council in their totality.
High-level Segment 2007: First Annual Ministerial Review and Development
Cooperation Forum was launched. Evaluated progress made towards
the execution of Millennium Development Goal 1- eradicate extreme poverty
and hunger. In order to highlight the work done, Bangladesh, Barbados,
Cambodia, Cape Verde, Ethiopia and Ghana voluntarily made presentation.
It also reaffirmed its commitment to achieve MDG1 by 2015.
High-level Segment 2006: focused on productive employment and its
impact on the sustainable development.
High-level Segment 2005: Discussed progress made on Millennium
Development Goals and the international partnership required to achieve
this.
High-level Segment 2004: Focussed on least developing countries and
discussed resource mobilisation to reduce poverty. It led to launch of rural
initiatives in Benin, Africa.
High-level Segment 2003: Resulted in promotion of an integrated approach
to rural development in developing countries for poverty eradication and
sustainable development initiative in Madagascar.
High-level Segment 2002: accepted resolution on the contribution of human
resources in areas such as health, education and development
High-level Segment 2001: New Partnership for Africas Development
(NEPAD) is formed to focus on developmental issues in the continent of
Africa.
High-level Segment 2001: ICT (Information and Communication
Technologies) Task Force in 2001 is established as a suggestion of
ministerial declaration to bridge the digital divide .
High-level Segment 1999: Manifesto on Poverty was issued that led to
formulation on Millennium Development Goals.
In 1998, ECOSOC started a practice of meeting in April every year, in
addition to substantive sessions, with finance ministers who are heading key
committees of the Bretton Woods institutions. These meetings resulted in
successful International Conference on Financing for Development, in March
2002 in Monterrey, Mexico that adopted the Monterrey Consensus; and ECOSOC
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was assigned to assess the Consensus. These meetings have helped in building
a relationship between the UN and international financial and trade institutions,
and have strengthened their association for accomplishing the globally accepted
development goals, including the Millennium Development goals. Participation
in the meetings has widened since the first-ever meeting in 1998. The chairperson
of the Development Committee of the World Bank, the chairperson of the
International Monetary and Financial Committee of the International Monetary
Fund, the General Council of the World Trade Organisation and the Trade and
Development Board of UNCTAD attends these meetings.
ECOSOC Reform - Strengthening the Council
Since the inception of the UN in 1945, ECOSOC has undergone over a dozen
proposals for reforms. These reforms have resulted in expansion of membership
and in new processes to make ECOSOC more effective.
ECOSOC has been receiving support to strengthen its role with the UN
system. The 57th General Assembly accepted resolution 57/270B, which allows
the formation of the Ad-Hoc Working Group on the Coordinated and Integrated
Implementation and Follow-Up. Accordingly, ECOSOC and its subsidiary organs
were granted an important role for the coordinated implementation and follow-
up of the outcomes of the major UN conferences and summits of the 1990s.
Over the last few years, ECOSOC has been strengthened as a central
body of the UN coordination. Despite this, there is a continuous demand to
strengthen the body further. Heads of State and government responded to this
call. In paragraph 155 and 156 of the 2005 World Summit outcome document,
the existing functions of ECOSOC were strengthened and it was entrusted with
important new roles.
Paragraph 155 and 156 of the World Summit document allows ECOSOC to:
evaluate the progress made in the execution of the major UN conferences
and summits of the last fifteen years; and Millennium Development Goals.
serve as a platform to engage in global policies and trends in the economic,
social, environmental and humanitarian field and review trends in
international development co-operation.
Under the chairmanship of H.E. Ambassador Johan C. Verbeke of Belgium
and H.E. Ambassador Cheick Sidi Diarra of Mali, on 20 November 2006, the 61/
16 resolution of General Assembly on strengthening of ECOSOC was adopted.
The five key elements of the resolution are:
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1. The AMR can review progress made in the implementation of the UN
Development Agenda and Millennium Development Goals.
2. The DCF can review progress in issues of aid quality and quantity, and
give policy guidance on practical measures. It can also make suggestion
on improving its effectiveness.
3. Geneva session of July 2007 marked the launch of first AMR and biennial
DCF. 2009 onwards DCF are held biennially in New York.
4. ECOSOC can summon ad-hoc meetings on humanitarian emergencies
as and when requested.
5. Peace-building Commission will benefit from the Councils experiences
in the area of post-conflict peace building and the success of its Ad-Hoc
Advisory Groups.
After adopting the General Assembly resolution, the Council further
accepted a decision which provides further details on the modalities of
involvement of ECOSOCs subsidiary machinery in the preparation of the first
2007 Annual Ministerial substantive Review and Development Cooperation
Forum.
3.5.1 Members
The Councils fifty-four member Governments are elected by the General
Assembly for overlapping three-year terms. Seats on the Council are reserved
on the basis of geographical representation. Fourteen seats are allocated to
African countries, eleven seats to Asian countries, ten to Latin American and
Caribbean countries, six to East-European countries and thirteen to West-
European and other countries.
On October 24, 2011, the General Assembly elected eighteen members
of the Economic and Social Commission for 2012-2014. These countries are
Belarus, Brazil, Burkina Faso, Cuba, Dominican Republic, El Salvador, France,
Germany, India, Indonesia, Ireland, Lesotho, Libya, Nigeria, Spain, Turkey, Ethiopia
and Japan. On October 5, 2011 Monaco reported that from 1 January 2012,
Belgium will resign and give its seat to Netherlands while Norway will relinquish
in favour of Switzerland.
On October 6, 2011, the Russian Federation said that Hungary will pass
its seat in favour of Bulgaria for its remaining term (2012-2013).
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3.5.2 Subsidiary Bodies of ECOSOC
A. ECOSOC Functional Commissions
Statistical Commission
UN Commission on Human Rights (UNCHR): Disbanded 2006, replaced
by the United Nations Human Rights Council (UNHRC), a subsidiary organ
of the General Assembly.
Commission on Population and Development
Commission for Social Development
Commission on the Status of Women
Commission on Narcotic Drugs
Commission on Crime Prevention and Criminal Justice
Commission on Science and Technology for Development
Commission on Sustainable Development
United Nations Forum on Forests
B. ECOSOC Regional Commissions
Economic Commission for Africa (ECA)
Economic and Social Commission for Asia and the Pacific (ESCAP)
Economic Commission for Europe (ECE)
Economic Commission for Latin America and the Caribbean (ECLAC)
Economic and Social Commission for Western Asia (ESCWA)
C. ECOSOC Standing Committees
Committee for Programme and Coordination
Committee on Non-Governmental Organizations
Committee on Negotiations with Intergovernmental Agencies
D. ECOSOC Ad hoc bodies
Ad hoc Open-ended Working Group on Informatics
E. Expert bodies composed of governmental experts
Committee of Experts on the Transport of Dangerous Goods and on the
Globally Harmonized System of Classification and Labelling of Chemicals
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Intergovernmental Working Group of Experts on International Standards
of Accounting and Reporting
United Nations Group of Experts on Geographical Names
F. Expert bodies composed of members serving in their personal
capacity
Committee for Development Policy
Committee of Experts on Public Administration
Committee of Experts on International Cooperation in Tax Matters
Committee on Economic, Social and Cultural Rights
Permanent Forum on Indigenous Issues
G. Other related bodies
Committee for the United Nations Population Award
Executive Board of the International Research and Training Institute for
the Advancement of Women
International Narcotics Control Board
Programme Coordinating Board of the Joint United Nations Programme
on HIV/AIDS
Self-Assessment Questions
7. Fill in the blanks with appropriate words
(a) The __________serves as the central forum for discussing
international economic and social issues, and for formulating policy
recommendations addressed to Member States and the United
Nations system.
(b) ECOSOCs fifty-four member Governments are elected by the
__________for overlapping three-year terms.
8. State whether the following statements are true or false
(a) On October 24, 2011, the General Assembly elected ten members
of the Economic and Social Commission for 2012-2014.
(b) Commission on Population and Development is a subsidiary body
of ECOSOC.
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3.6 UN Commission on Human Rights
The conclusion of 62nd Session in Peru marked the end of the Commission on
Human Rights and the beginning of the Human Rights Council, under the General
Assembly resolution A/RES/60/251. The Commission which was established
by ECOSOC was criticized when it was abolished on 16 June 2006.
The representatives of its 53 member-states, observer states and NGOs
met annually in Geneva for six weeks during March and April. The commission,
which was at the centre of Human Rights issue for a decade, was assisted by
the Office of the United Nations High Commissioner for Human Rights (OHCHR).
A sub-commission on Promotion and Protection of Human Rights along with
several working group, individual experts, representatives and special
rapporteurs also assisted it.
The United Nations Commission on Human Rights (UNCHR) since 1946
was the central body on human rights issue, until in 2006 it was replaced by the
United Nations Human Rights Council .
The UNCHR was established at the first meeting of ECOSOC along with
the Commission on the Status of Women. It was created under the terms of
Article 68 of the Charter. The commission went through two distinct phases:
first between 1947 and 1967 which was a period of strict observance of the
sovereignty principle. During this period, the Commission followed the policy of
absenteeism, which only allowed it to concentrate on creating awareness about
human rights and helping countries elaborate treaties, but it did not allow it to
investigate or execute violators.
Post the decolonization of Africa and Asia, many countries wanted active
involvement of the UN in the matters of human right. In 1967, the Commission
started the policy of interventionism, which was a result of massive violations in
apartheid South Africa. The new policy allowed the Commission to investigate
and produce reports on violations.
In order to carry out the new policy effectively, in 1970 geographically-
oriented work-groups was created. These groups focused on investigation of
violations in a specific region or a single country. In 1980s came the theme-
oriented work-groups, which specialized in specific types of abuses.
However, none of these measures were able to make the Commission as
effective as desired. This was primarily because of the politicization and
involvement of the human rights violators in the body. In its later years, the body
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became highly discredited among human rights activists and governments, and
this led to its extinction.
3.6.1 Structure
When the Commission was destroyed, it consisted of delegates of 53 member
states, elected by the members of ECOSOC. There were no permanent
members. Every year in May, election were held for about one-third of the seats
of the Commission and the representatives were appointed for a term of three-
year.
Seats on the Commission were given based on the region, using the
procedures of the United Nations Regional Groups. During its last year of service
in 2005, the representation by region was as follows:
15 from the African Group,
12 from the Asian Group,
5 from the Eastern European Group,
11 from the Latin American and Caribbean Group,
10 from the Western European and Others Group.
At its 60
th
session in January 2004, Australia was elected as chair followed
by Indonesia in January 2005, Peru in January 2006. The final meeting of
Commission was held in Geneva on March 27, 2006.
3.6.2 Special Procedures
The commission established 30 special mechanisms to address country-specific
situations on issues like freedom of expression and opinion, torture, the right to
food and the right to education.
Individuals with expertise in particular areas of human rights were appointed
to serve as Special Rapporteurs for a maximum of six years. The main activity
of these experts is to examine, monitor, advise and publicly report on human
rights situations in specific countries or territories. These experts can write to
government and report on any violation; they can also conduct fact-based
investigation.
The special mechanisms are categorised according to:
thematic Mandates
country Mandates
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These include work-groups of upto five individuals who monitor and
investigate specific human rights concerns. Three groups were established by
the Commission:
Working Group on Arbitrary Detention
Working Group on Enforced or Involuntary Disappearances
Working Group on the use of mercenaries as a means of impeding
the exercise of the right of peoples to self-determination
Several member countries of Commission themselves had a doubtful
human rights record; because of this the special procedures now comes under
the directive of the UNHRC. The commission was also criticised for not engaging
in constructive issues and for turning into a platform for political finger pointing.
The election of states, with dubious human rights record, as a member was
also considered as a mechanism to defend themselves from any charges on
human rights issues.
Self-Assessment Questions
9. Fill in the blanks with appropriate words
(a) The UNCHR was established on __________at the first meeting of
ECOSOC.
(b) In January 2004, __________was elected as chair of the 60th
Session.
10. State whether the following statements are true or false
(a) Individuals with expertise in particular areas of human rights were
appointed by the chair of the Commission to serve as Special
Rapporteurs for a maximum of three years.
(b) The UNCHR was a functional commission within the overall
framework of the United Nations from 1946 until it was replaced by
the United Nations Human Rights Council in 2006.
3.7 UN and National Human Rights Institutions
National Human Rights Institutions (NHRI) are central to human rights protection
system and are equivalent to the OHCHR. They are also in compliance with
Paris Principles. They are involved in promoting, monitoring and implementing
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human rights standards at national level. NHRIs with the support of OHCHRs
focus on protection of issues like: prevention of torture, degrading treatment,
summary executions, arbitrary detention, and disappearance and protection of
human of human right activists. They also play an important in spreading
awareness about the judiciary, law enforcement and correctional system.
OHCHRs play an important role in strengthening and establishing NHRIs along
with the National Institutions and Regional Mechanisms Section (NIRMS).
3.7.1 The International Coordinating Committee of NHRIs (ICC)
In 1993, Paris Principles Compliant NHRIs constituted the International
Coordinating Committee(ICC), in Tunis, Tunisia,with an aim to organise their
activities. In 1998, the guidelines for ICC were developed and the membership
was extended to four per geographical region making a total of 16 members.
Ten years later ICC decided to incorporate the role of NHRIs to better cope with
changing environment. It also decided to incorporate itself as a legal entity
under Swiss Law with 16 bureau members. In 2009. ICC discussed issues
related to the governance of its working groups, sub committees, as well as
implementation of Nairobi Declaration, the Durban Review Conference and the
Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights. The meetings of sub-committee on Accreditation (SCA), bureau
meetings and general meetings of the Committee are held under protection and
cooperation of OHCHR. The SCA consists of four members from each
geographical region which includes: Africa, Americas, Asia Pacific and Europe.
The Bureau consists of the following NHRIs:
The New Zealand Human Rights Commission ( ICC Chair)
Kenya National Commission on Human Rights ( ICC Secretary )
The Conseil Consultatif des Droits de LHomme du Maroc or Chair of the
African Network of NHRIs
South African Human Rights Commission
National Commission for Human Rights of Togo
Comisin Nacional para los Derechos Humanos of Mexico
Ombudsman of Ecuador Chair of the NHRIs of the Americas
Procuraduria de Defensa de los Derechos Humanos of El Salvador
Defensora del Pueblo de la Nacin Argentina
Australian Human Rights Commission Chair of the Asia Pacific Network
of NHRIs
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National Human Rights Commission of India
National Centre for Human Rights of Jordan
Scottish Human Rights Commission Chair of the European Group of NHRIs
The Commission consultative des droits de lhomme of Luxembourg
German Institute for Human Rights
The Office of the Ombudsman of Croatia
3.7.2 National Institutions for the Promotion and Protection of
Human Rights
The Sub-Committee on Accreditation (SCA) of ICC of National Institutions for
the Promotion and Protection of Human Rights is authorised to review and
analyse accreditation applications and also make suggestions to the 16 member-
bureau on the compliance of applicants with Paris Principles. OHCHR is the
permanent member of ICC and works as its secretariat; rest other members
are nominated by regional groups and this is renewed every three years.
9th International Conference of NHRIs
In 2008, between 21 and 24 October the 9th International Conference for National
Human Rights Institutions was held in Nairobi, Kenya which was organised by
the Kenya National Commission on Human Rights, the ICC and OHCHR; and
was supported by the Organisation Internationale de la Francophonie, the Swedish
International Development Corporation Agency (SIDA) and UNDP. The topic of
the 9th Conference was: National Human Rights Institutions and the
administration of justice and itw as attended by over 120 representatives of
NHRIs from across the world. The conference also unanimously accepted the
Nairobi Declaration which furnished NHRI with guidelines in performing their
role in the administration of justice.
10th International Conference of NHRIs
In 2010, between 8 and 10 October the 10th International Conference of National
Human Rights Institutions on Business and Human Rights: The Role of NHRIs
was held in Edinburgh, Scotland. The conference was organised by the Scottish
Human Rights Commission, the Scottish Parliament, OHCHR and ICC. The
conference which was attended by about 250 delegated, adopted the Edinburgh
Declaration. The delegates stressed on promoting its Protect, Respect, Remedy
framework and on the need to work in collaboration with the special
representative on human rights and transnational corporation and other business
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enterprises. The NHRI committed itself to empowering human rights defenders
and civil society participation in business and human rights and carry on activities
for creation of focal points, supporting victims of corporate abuse.
Guidance Notes for NHRIs
NHRIs can participate in the international human rights system and follow up on
results and recommendations at the national level. The role of NHRI is three-
fold:
(iv) United Nations human rights treaty bodies;
(v) the UPR mechanism of the Human Rights Council, and;
(vi) Special Procedures of the Human Rights Council.
Fellowship for NHRI staff
In 2008, OHCHR introduced a fellowship programmes to allow A-status members
of National Institutions and Regional Mechanisms Section (NIRMS) to work for
six months and gain experience with UNs human right system. The programme
allows OHCHR to find experts and get in direct contact with NHRIs global staff.
Self-Assessment Questions
11. Fill in the blanks with appropriate words
(a) The 9th International Conference for National Human Rights
Institutions was held in _______, from 21 to 24 October 2008.
(b) NHRIs have clearly defined roles and opportunities to participate in
the international human rights system and to follow-up to results and
recommendations at the _________level.
12. State whether the following statements are true or false:
(a) The 10th International Conference of National Human Rights
Institutions on the theme of Business and Human Rights: the Role
of NHRIs was held in Edinburgh, Scotland, from 8 to 10 October
2010.
(b) The National Institutions and Regional Mechanisms Section (NIRMS)
is the main entry point for OHCHRs efforts for the establishment
and strengthening of NHRIs, as well as for the cooperation with NHRIs.
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3.8 Regional Commissions on Human Rights
Regional commissions on human rights strengthen respect not only for human
rights but for rule of law. Regional commissions assist governments by providing
them indispensable support in the form of legal services
3.8.1 African Human Rights Treaties and their Implementation
Human rights evolved in African with the founding of the Organization of Unity
(OAU) in 1963. The OAU was based on the principles of non-interference and
state sovereignty. The decolonization of Africa was one of its main motives.
Africa saw a number of laws being formulated in the form of Charters, such as
The African Charter on Human and Peoples Rights, 1981, which has been
discussed in detail below.
The African Charter on Human and Peoples Rights, 1981
The adoption of the African Charter on Human and Peoples Rights in 1981
marked the beginning of a new era in the field of human rights in Africa. It was
enacted on 21 October 1986, and as of 29 April 2002 had 53 state members.
Although strongly inspired by the Universal Declaration of Human Rights, the
two International Covenants on human rights and the regional human rights
conventions, the African Charter reflects a high degree of specificity due in
particular to the African conception of the term right and the place it accords to
the responsibilities of human beings. The Charter contains a long list of rights,
covering a wide spectrum not only of civil and political rights, but also of economic,
social and cultural rights.
The African Charter further created the African Commission on Human
and Peoples Rights, to promote human and peoples rights and ensure their
protection in Africa (Article 30). In 1998, the Protocol to the Charter on the
Establishment of an African Court of Human Rights was also adopted, but, as of
30 April 2002, this Protocol had not yet entered into force, having secured only 5
of the required 15 ratifications. Lastly, work on the elaboration of an additional
protocol concerning the rights of women in Africa is in progress within the
framework of the African Commission on Human and Peoples Rights, the
Commission being assisted in this task by the Office of the United Nations High
Commissioner for Human Rights.
The undertakings of the state parties: The States parties to the Charter shall
recognize the rights, duties and freedoms enshrined [therein] and shall undertake
to adopt legislative or other measures to give effect to them (Article 1).
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It is further provided that they shall have the duty to promote and ensure
through teaching, education and publication, the respect of the rights and
freedoms contained in the present Charter, and to see to it that these freedoms
and rights as well as corresponding obligations and duties are understood (Article
25). Moreover, the States parties shall have the duty to guarantee the
independence of the Courts and shall allow the establishment and improvement
of appropriate national institutions entrusted with the promotion and protection
of the rights and freedoms guaranteed by the ... Charter (Article 26). These two
latter provisions thus emphasize the need for education, information and an
independent administration of justice in order to ensure effective protection of
human rights.
Lastly, several provisions of the Charter are also couched in the form of
duties of the States parties to ensure certain rights, such as, for instance, the
promotion and protection of morals and traditional values recognized by the
community ( Article17(3)) and the right to development (Article 22(2)).
The individual and collective rights recognized: The African Charter on
Human and Peoples Rights recognizes the following civil, political, economic,
social and cultural rights of individual human beings, in particular:
the right to freedom from discrimination on any grounds in the enjoyment
of the rights and freedoms guaranteed in the CharterArticle 2;
the right to equality before the law and to equal protection of the law
Article 3;
the right to respect for ones life and personal integrityArticle 4;
the right to respect for ones inherent dignity as a human being, including
freedom from slavery, the slave trade, torture, cruel, inhuman or degrading
punishment and treatmentArticle 5;
the right to liberty and to the security of ones person; freedom from arbitrary
arrest or detentionArticle 6;
the right to have ones cause heard, and the right to an appeal to competent
national organs against acts of violating ones human rights; the right to
be presumed innocent until proved guilty by a competent court or tribunal;
the right to defence; and the right to be tried within a reasonable time by
an impartial tribunal;
freedom from ex post facto lawsArticle 7;
freedom of conscience, the profession and free practice of religionArticle
8;
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the right to receive information and the right to express and disseminate
ones opinions within the law. Article 9;
the right to freedom of association (Article 10) and the right to assemble
freely with othersArticle 11;
the right to freedom of movement and residence within the borders of a
State; the right to leave any country including ones own and to return to
ones country; the right to asylum in case of persecution; prohibition of
mass expulsionsArticle 12;
the right to participate freely in the government of ones country, either
directly or through freely chosen representatives; the right to equal access
to the public service of ones country and to access to public property and
servicesArticle 13;
the right to propertyArticle 14;
the right to work and the right to equal pay for equal workArticle 15;
the right to enjoy the best attainable state of physical and mental health
Article 16;
the right to education, and freely to take part in the cultural life of ones
countryArticle 17;
the right of the family, the aged and the disabled to special measures of
protectionArticle 18.
Next, the African Charter recognized the following rights of peoples,
namely:
the right of peoples to equalityArticle 19;
the right to existence of all peoples, including the right to self-determination;
the right of all peoples to assistance in their liberation struggle against
foreign domination, be it political, economic or cultural. Article 20;
the right of all peoples freely to dispose of their wealth and natural
resourcesArticle 21;
the right of all peoples to their economic, social and cultural development
Article 22;
the right of all peoples to national and international peace and security
Article 23;
the right of all peoples to a general satisfactory environment favourable to
their development. Article 24.
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The individual duties: Without providing any details, Article 27(1) deals with
individual duties toward certain groups by stipulating, in general terms only, that
every individual shall have duties towards his family and society, the State and
other legally recognized communities and the international community. Next,
Article 28 concerns the individuals duty towards other individuals, providing that
every individual shall have the duty to respect and consider his fellow beings
without discrimination, and to maintain relations aimed at promoting, safeguarding
and reinforcing mutual respect and tolerance. Lastly, Article 29 enumerates
several other specific individual duties, such as the duties:
to preserve the harmonious development of the familyArticle 29(1);
to serve ones national communityArticle 29(2);
not to compromise the security of the StateArticle 29(3);
to preserve and strengthen the social and national solidarityArticle 29(4);
to preserve and strengthen the national independence and territorial
integrity of ones countryArticle 29(5);
to work to the best of ones abilities and competence, and to pay taxes
Article 29(6);
The implementation mechanism
The African Commission on Human and Peoples Rights comprises of eleven
members serving in their individual capacity-Article 31. It has two-fold function,
first, of promoting human and peoples rights, and, second, of protecting these
rights (Article 30), including the right to receive communications both from States
and from other sources.
As to the function of promoting human and peoples rights, the Commission
shall, in the first place, in particular, collect documents, undertake studies and
researches on African problems, organize conferences, encourage domestic
human rights institutions, and, should the case arise, give its views or make
recommendations to Governments; second, it shall formulate and lay down
principles and rules aimed at solving legal problems relating to human and
peoples rights. And lastly, it shall cooperate with other African and international
institutions concerned with the promotion and protection of these rights (Article
45(1)).
With regard to the Commissions function of ensuring the protection of
human and peoples rights under conditions laid down by the ... Charter (Article
45(2)), the Commission not only has competence to receive communications
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from States and other sources, but is also authorized to interpret all the provisions
of the ... Charter at the request of a State Party, an institution of the OAU or an
African Organization recognized by the OAU (Article 45(3)).
Inter-State communications
If a State party has good reasons to believe that another State Party to this
Charter has violated the provisions thereof, it may draw, by written
communication, the attention of that State to the matter (Article 47). The State
to which the communication is addressed has three months from the receipt of
the communication to submit a written explanation. If the matter has not been
settled to the satisfaction of the two States involved through bilateral negotiation
or by any other peaceful procedure, either State can bring it to the attention of
the Commission (Article 48). Notwithstanding these provisions, a State party
can refer the matter directly to the Commission (Article 49). However, the
Commission can only deal with the matter after all domestic remedies have
been exhausted in the case, unless ... the procedure of achieving these remedies
would be unduly prolonged (Article 50). The States concerned may be
represented before the Commission and submit written and oral statements
(Article 51(2)). When in possession of all necessary information and after having
tried all appropriate means to reach an amicable solution based on the respect
of Human and Peoples Rights, the Commission shall prepare a report stating
the facts and its findings, which shall be sent to the States concerned and to the
Assembly of Heads of State and Government (Article 52). In transmitting its
report, the Commission may make to the aforesaid Assembly such
recommendations as it deems useful (Article 53).
Communications from sources other than those of States parties
The Charter does not specify whether the Commission is competent to deal
with individual complaints, as such, but merely provides that, before each session
of the Commission, its Secretary shall make a list of the communications other
than those of States Parties ... and transmit them to the members of the
Commission, who shall indicate which communication should be considered
by the Commission (Article 55(1)). However, certain criteria have to be fulfilled
before the Commission can consider the case. The criteria are as follows:
(i) the communication must indicate the author;
(ii) it must be compatible both with the Charter of the OAU and with the African
Charter on Human and Peoples Rights;
(iii) it must not be written in disparaging or insulting language;
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(iv) it must not be based exclusively on news disseminated through the mass
media;
(v) it must be submitted only after all domestic remedies have been exhausted,
unless it is obvious that this procedure is unduly prolonged;
(vi) it must be submitted within a reasonable period from the time local
remedies are exhausted;
(vii) the communications must not deal with cases which have been settled
by these States involved in accordance with the principles of the Charter
of the United Nations, the Charter of the OAU or the African Charter on
Human and Peoples Rights (Article 56).
There is no specific provision in the Charter allowing individuals or groups
of individuals to appear in person before the Commission. Before a substantive
consideration is made of a communication, it must be brought to the attention of
the State concerned (Article 57). Subsequently, when it appears after deliberations
of the Commission that one or more communications apparently relate to special
cases which reveal the existence of a series of serious or massive violations of
human and peoples rights, the Commission shall draw the attention of the
Assembly of Heads of State and Government to these special cases; the latter
may then request the Commission to undertake an in-depth study of these
cases and make a factual report, accompanied by its findings and
recommendations (Article 58(1) and (2)). Lastly, the Charter provides a procedure
for emergency cases which shall be submitted by the Commission to the
Chairman of the Assembly, who may request an in-depth study (Article 58(3)).
Periodic reports
The State parties to the Charter also undertake to submit, every two years, a
report on the legislative or other measures taken with a view to giving effect to
the terms of the Charter (Article 62). Although, the Charter provides no explicit
procedure for the examination of these periodic reports, the African Commission
on Human and Peoples Rights has proceeded to examine these reports in public
sessions.
3.8.2 American Human Rights Treaties and their Implementation
The American Convention on Human Rights, 1969 are also commonly called
the Pact of San Jose, Costa Rica, as it was adopted in that capital city. It was
enacted on 18 July 1978 and, as of 9 April 2002, had 24 States parties, following
the denunciation of the treaty by Trinidad and Tobago on 26 May 1998. The
Convention reinforced the Inter-American Commission on Human Rights, which
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since 1960 had existed as an autonomous entity of the Organization of American
States. It became a treaty-based organ which, together with the Inter-American
Court of Human Rights, shall have competence with respect to matters relating
to the fulfilment of the commitments made by the States Parties to the Convention
(Article 33). In 1988, the General Assembly of the OAS further adopted the
Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights, also called the Protocol of San Salvador.
This Protocol develops the provisions of Article 26 of the Convention whereby
the States parties in general terms undertake to adopt measures, both internally
and through international co-operation, ... with a view to achieving progressively,
by legislation or other appropriate means, the full realization of the rights implicit
in the economic, social, educational, scientific, and cultural standards set forth
in the Charter of the Organization of American States as amended by the Protocol
of Buenos Aires. This Protocol entered into force on 16 November 1999 and, as
of 9 April 2002, had 12 States parties. Finally in 1990, the General Assembly also
adopted the Protocol to the American Convention on Human Rights to Abolish
the Death Penalty, which entered into force on 28 August 1991. The States parties
to this Protocol shall not apply the death penalty in their territory to any person
subject to their jurisdiction (Article 1). No reservations may be made to this
Protocol, although States parties may declare at the time of ratification or
accession that they reserve the right to apply the death penalty in wartime in
accordance with international law, for extremely serious crimes of a military
nature (Article. 2(1)). As of 9 April 2002 this Protocol had 8 States parties.
The undertakings of the States parties: The States parties to the American
Convention on Human Rights undertake to respect the rights and freedoms
recognized [therein] and to ensure to all persons subject to their jurisdiction the
free and full exercise of those rights and freedoms, without any discrimination
on certain cited grounds (Article 1).
As defined by the Inter-American Court of Human Rights, the legal duty of
the States parties to the Convention to respect and to ensure is multi-faceted
and goes to the very heart of the entire State structure, including the particular
conduct of the Governments themselves.
The rights recognized: As to the civil and political rights guaranteed by the
Convention, they comprise the following:
the right to juridical personalityArticle 3;
the right to life, including careful regulation of the death penalty from an
abolitionist perspectiveArticle 4;
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the right to humane treatment, including freedom from torture and cruel,
inhuman or degrading treatment or punishmentArticle 5;
freedom from slavery, servitude, forced and compulsory labourArticle 6;
the right to personal liberty and security, including freedom from arbitrary
arrest or detentionArticle 7;
the right to a fair trialArticle. 8;
the right to freedom from ex post facto lawsArticle 9;
the right to compensation in the event of a miscarriage of justiceArticle
10;
the right to privacyArticle 11;
the right to freedom of conscience and religionArticle 12;
the right to freedom of thought and expressionArticle 13;
the right of reply in case of dissemination of inaccurate and offensive
statementsArticle 14;
the right to peaceful assemblyArticle 15;
the right to freedom of associationArticle 16;
the right to marry freely and to found a familyArticle 17;
the right to a nameArticle 18;
the rights of the childArticle 19;
the right to a nationalityArticle 20;
the right to propertyArticle 21;
the right to freedom of movement and residenceArticle 22;
the right to participate in governmentArticle 23;
the right to equality before the law and equal protection of the lawArticle
24;
the right to judicial protectionArticle 25
Apart from recognizing these civil and political rights, the American
Convention on Human Rights also contains an article whereby the States parties
in general terms undertake to adopt measures, both internally and through
international co-operation, ... with a view to achieving progressively, by legislation
or other appropriate means, the full realization of the rights implicit in the
economic, social, educational, scientific, and cultural standards set forth in the
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Charter of the Organization of American States as amended by the Protocol of
Buenos Aires (Article 26). As the title to this article indicates, it is more concerned
with the Progressive development of these rights than with their immediate
enforcement through judicial means. However, with the entry into force of the
Additional Protocol to the Convention in the Area of Economic, Social and Cultural
Rights, these rights have been given a more detailed legal definition, although
the full observance thereof is still to be achieved progressively (Article 1).
The Additional Protocol recognizes the following economic, social and
cultural rights:
The principle of non-discrimination in the exercise of the rights set forth in
the Protocol-Article 3;
the right to workArticle 6;
the right to just, equitable and satisfactory conditions of workArticle. 7;
trade union rightsArticle 8;
the right to social security Article 9;
the right to health Article 10;
the right to a healthy environment Article 11;
the right to food Article 12;
the right to education Article 13;
the right to the benefits of culture Article 14;
the right to the formation and protection of families Article 15;
the rights of children Article 16;
the right of the elderly to protection Article 17;
the right of the handicapped to protection Article 18.
The implementation mechanism: The inter-American system for the protection
of human rights comprises, in the first instance, the Inter-American Commission
on Human Rights and, in the second instance, the Inter-American Court of Human
Rights for those States parties having accepted its jurisdiction. In the present
context the procedures concerned will be explained in general terms only:
The competence of the Inter-American Commission on Human Rights:
The Inter-American Commission is composed of seven members elected in
their personal capacity (Articles. 34 and 36(1)) whose main functions are to
promote respect for and defence of human rights by, inter alia, (1) developing
an awareness of human rights in the Americas; (2) making recommendations
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to Governments of the member States, when it considers such action advisable;
(3) preparing such studies and reports as it considers advisable in the
performance of its duties; and, (4) taking action on petitions and other
communications pursuant to its authority under the Convention (Article 41(a),
(b), (c) and (f)).
The right of individual petition to the Commission is mandatory under the
Convention, according to which any person or group of persons, or any non-
governmental entity legally recognized in one or more member States of the
Organization [of American States] may lodge petitions ... containing denunciations
or complaints of violation of this Convention by a State Party (Article 44). On the
other hand, inter-State complaints require a specific declaration whereby the
State concerned recognizes the competence of the Commission to examine
communications brought against another State party having made the same
declaration (Article 45(1) and (2)). The admission of an individual petition or
inter-State communication submitted to the Commission is subject to several
requirements, such as the exhaustion of domestic remedies rule (Article 46(1)
(a)). Moreover, the petition or communication must be lodged within six months
from the date on which the alleged victim was notified of the final judgement,
and the subject of the complaint must not be pending in another international
proceeding for settlement (Article 46(1) (b) and (c)).
Individual petitions must of course also contain information such as the
name, address and signature of the alleged victim or his or her legal
representative (Article 46(1) (d)). The exhaustion of domestic remedies rule is
not, however, applicable (a) where the domestic legislation does not afford due
process of law for the protection of the right or rights that have allegedly been
violated; (b) where the alleged victim has been denied access to domestic
remedies; and (c) where there has been unwarranted delay in rendering a final
judgement (Article 46(2)).
If a petition or communication does not fulfil these conditions or if, for
instance, it is manifestly groundless, the Commission declares the petition or
communication concerned inadmissible (Article 47). Otherwise, it shall be
declared admissible, which implies that the Commission will proceed to request
more information from the parties in order to be enabled to make a more in-
depth analysis of the complaints (Article 48(1) (a)). It can also make an on-the-
spot investigation and hear oral statements in addition to written submissions
(Article 48(1) (d) and (e)). At this stage the Commission can also declare the
petition or communication inadmissible or out of order or unsubstantiated (Article
48(1) (c)). Alternatively, it will place itself at the disposal of the parties concerned
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with a view to reaching a friendly settlement of the matter on the basis of respect
for the human rights recognized in this Convention (Article 48(1)(f)). If a settlement
is not reached, the Commission will draw up a report setting forth the facts and
stating its conclusions, a report that will be submitted to the States parties,
which shall not be at liberty to publish it (Article 50(1) and (2)). If, after a prescribed
period, the matter has not been settled or submitted to the Court, the Commission
may set forth its opinion and conclusions concerning the question submitted
for its consideration and may in cases where the stateconcerned fails to take
adequate measures, ultimately decide to publish its report (Article 51).
With regard to those OAS Member States which have not yet ratified the
American Convention on Human Rights, the Commission is competent to receive
petitions alleging violations of the American Declaration on the Rights and Duties
of Man. Another interesting aspect of the Commissions powers is its
competence to request advisory opinions from the Inter-American Court of Human
Rights (Article 64). The important Advisory Opinion on Habeas Corpus in
Emergency Situations was thus given by the Court following a request by the
Commission.
The competence of the Inter-American Court of Human Rights
As of 16 April 2001, the compulsory jurisdiction of the Court had been accepted
by 21 States. The Court consists of seven judges elected in their individual
capacity (Article 52). It has its Secretariat in San Jos, Costa Rica. Before the
Court can hear a case, the procedure before the Commission must be completed
(Article 61(2)). In cases of extreme gravity and urgency, the Court shall adopt
such provisional measures as it deems pertinent, and, at the request of the
Commission, it may in fact also do this with respect to cases not yet submitted
to it (Article 63(2)). The Courts judgments are final and the States parties
undertake to comply with the terms thereof in any case to which they are parties
(arts. 67 and 68(1)).
The enforcement mechanism under the Additional Protocol in the Area of
Economic, Social and Cultural Rights differs from the procedures under the
Convention in that the States parties only undertake to submit periodic reports
on the progressive measures they have taken to ensure due respect for the
rights set forth therein (Article 19(1) of the Protocol). Only with regard to the
right to organize and join trade unions (Article 8(a)) and the right to education
(Article 13) does the Protocol provide for application of the complaints procedure
before the Commission and Court, and then only in cases where the alleged
violation is directly attributable to a State party (Article 19(6)). Both the
Commission and the Court have dealt with a considerable number of cases,
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which can be found in their respective annual reports. The annual report of the
Inter-American Commission on Human Rights also provides important
information about the Commissions activities in general, which reach far beyond
the framework of the American Convention on Human Rights.
3.8.3 European Human Rights Treaties and their Implementation
The European Convention on Human Rights, 1950, and its Protocols Nos.
1, 4, 6 and 7
The European Convention of Human Rights was adopted by the Council of Europe
in 1950, and entered into force on 3 September 1953. As of 29 April 2002, it had
43 States parties. The Convention originally created both a European
Commission and a European Court of Human Rights entrusted with the
observance of the engagements undertaken by the High Contracting Parties to
the Convention, but with the entry into force of Protocol No. 11 to the Convention
on 1 November 1998, the control machinery was restructured so that all
allegations are now directly referred to the European Court of Human Rights in
Strasbourg, France. This Court is the first, and so far only, permanent human
rights court sitting on a full-time basis.
The rights protected by the Convention have been extended by Additional
Protocols Nos. 1, 4, 6 and 7, all of which will be dealt with below. Protocol No. 12
concerning the prohibition of discrimination was opened for signature on 4
November 2000 in Rome, in the context of the fiftieth anniversary celebrations
of the Convention itself, which was signed in the Italian capital on 4 November
1950. Finally, Protocol No. 13 was opened for signature in Vilnius on 3 May
2002. This protocol concerns the abolition of the death penalty in all
circumstances.
The undertakings of the States parties: The High Contracting Parties shall
secure to everyone within their jurisdiction the rights and freedoms defined in
Section I of [the] Convention (Article 1). This means, inter alia, that they also
have to provide everyone whose rights and freedoms guaranteed by the
Convention have been violated, with an effective remedy before a national
authority notwithstanding that the violation has been committed by persons acting
in an official capacity (Article 13).
The rights guaranteed: The European Convention guarantees the following
civil and political rights:
the right to lifeArticle 2;
the prohibition of torture, inhuman or degrading treatment or punishment
Article 3;
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the prohibition of slavery, servitude, and forced or compulsory labour
Article 4;
the right to liberty and securityArticle 5;
the right to a fair trialArticle 6;
prohibition of ex post facto lawsArticle 7;
the right to respect for ones private and family lifeArticle 8;
the right to freedom of thought, conscience and religionArticle 9;
the right to freedom of expressionArticle 10;
the right to freedom of assembly and associationArticle 11;
the right to marry and to found a familyArticle 12;
the right to an effective remedyArticle 13;
prohibition of discriminationArticle 14.
Protocol No. 1 was adopted in 1952 and entered into force on 18 May
1954. As of 29 April 2002 it had 40 States parties. This Protocol provides the
following rights and undertakings between the States parties thereto:
the right to peaceful enjoyment of ones possessionsArticle 1;
the right to education and the right of parents to ensure such education
and teaching in conformity with their own religious and philosophical
convictionsArticle 2;
the holding of free elections at reasonable intervals by secret ballotArticle
3.
Protocol No. 4 of 1963 entered into force on 2 May 1968. As of 29 April
2002 it had 35 States parties. Protocol No. 4 added the following rights to be
protected:
the right not to be deprived of ones liberty merely on the ground of inability
to fulfil a contractual obligationArticle 1;
the right to freedom of movement and of residence; the right to leave any
country, including ones ownArticle 2;
the right not to be expelled from the country of which one is a national and
the right not to be refused entry into the State of which one is a national
Article 3;
prohibition of the collective expulsion of aliensArticle 4.
Protocol No. 6 of 1983 came into force on 1 March 1985. As of 29 April
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2002 it had 40 States parties. Protocol No. 6 concerns the abolition of the death
penalty (Article 1), but a State may nonetheless make provision in its law for the
death penalty in respect of acts committed in time of war or of imminent threat
of war (Article 2). No derogations can be made from the provisions of these
articles under Article 15 of the Convention, nor can any reservations be made to
this Protocol (Articles 3-4).
Protocol No. 7, adopted in 1984, entered into force on 1 November 1988.
As of 29 April 2002 there were 32 States parties to this Protocol, which extended
the scope of the Convention by providing for the following additional protection:
certain protections against arbitrary expulsion of aliens lawfully resident in
the territory of the High Contracting PartiesArticle 1;
the right to appeal against a criminal convictionArticle 2;
the right to compensation in case of a miscarriage of justiceArticle 3;
the right not to be tried again for the same offence within the jurisdiction of
the same Statea provision which cannot be derogated from under Article
15 of the ConventionArticle 4; and
equality of rights and responsibilities between spouses as to marriage,
during marriage and in the event of its dissolutionArticle 5.
As indicated above, Protocol No. 12 to the European Convention provides
a general prohibition of discrimination, which is independent of the other rights
and freedoms guaranteed by the Convention. According to Article 1(1) of the
Protocol, the enjoyment of any right set forth by law shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national minority,
property, birth or other status. Article 1(2) of the Protocol specifies that no one
shall be discriminated against by any public authority on any ground such as
those mentioned in paragraph 1. As of 29 April 2002, however, this Protocol had
not entered into force, having received only one out of the necessary ten
ratifications.
The implementation mechanism: As from 1 November 1998, when the
restructuring of the control machinery established under the Convention entered
into force, all alleged violations of the rights and freedoms guaranteed by the
Convention and its Protocols are referred directly to the European Court of Human
Rights, which shall ensure the observance of the engagements undertaken by
the High Contracting Parties (Article 19). The Court is permanent, and consists
of a number of judges equal to that of the Contracting Parties, that is, 43 as of 30
April 2002 (Article 20). The Court can sit in committees of three judges, in
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Chambers of seven judges or in a Grand Chamber of seventeen judges (Article
27(1)). Apart from being competent to receive and examine inter-State complaints
(Article 33), the Court may receive applications from any person, non-
governmental organization or group of individuals claiming to be the victim of a
violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto (Article 34). The High Contracting Parties
undertake not to hinder in any way the effective exercise of this right (Article 34,
in fine). The right to bring inter-State and individual complaints to the Court does
not depend on any specific act of acceptance.
The Court may not, however, deal with an application of any kind unless
domestic remedies have been exhausted and the application has been submitted
within six months from the date on which the final decision was taken (Article
35(1)). Further criteria of admissibility exist with regard to individual applications,
which must not, for instance, be anonymous or substantially the same as a
matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and
contains no relevant new information (Article 35(2)).
The Court decides on the admissibility and merits of the case and, if
necessary, undertakes an investigation. After having declared a case admissible,
it also places itself at the disposal of the parties concerned with a view to securing
a friendly settlement of the matter on the basis of respect for human rights as
defined in the Convention and the protocols thereto (Article 38(1)(b)). Hearings
before the Court are public, unless it decides otherwise in exceptional
circumstances (Article 40).
Within a period of three months from the date of the judgment of the
Chamber, any party to the case may, in exceptional circumstances, request
that the case be referred to a Grand Chamber. If the request is accepted, the
Grand Chamber shall decide the case by means of a judgment that shall be
final (Articles 43-44). Otherwise, the judgment of the Chamber will be final when
the parties declare that they have no intention of requesting referral to the Grand
Chamber; or three months after the judgment in the absence of such a request;
or, finally, when the request for referral has been rejected (Article 44).
The High Contracting Parties undertake to abide by the final judgment of
the Court in any case to which they are parties; the execution of the final judgment
is supervised by the Committee of Ministers of the Council of Europe (Article
46).
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Activity 2
Research the National Human Rights Commission of India on the Internet
and give an example of their recent achievement.
Self-Assessment Questions
13. Fill in the blanks with appropriate words:
(a) The African Charter on Human and Peoples Rights was adopted in
______.
(b) The African Commission on Human and Peoples Rights consists of
___________members serving in their individual capacity.
14. State whether the following are true or false:
a) The American Convention on Human Rights, 1969, was also
commonly called the Pact of San Jos, Costa Rica.
(b) The European Convention on Human Rights was adopted by the
Council of Europe in 1935.
3.9 Summary
Let us recapitulate the important concepts discussed in this unit:
Specialized agencies are autonomous bodies that work with the UN and
with each other.
Some of the specialized agencies of the UN are FAO, ICAO, IFAD, ILO,
IMO, IMF, ITU, UNESCO, UNIDO and UPU.
The United Nations General Assembly (UNGA/GA) is one of the five principal
organs of the United Nations with equal representation from the member
nations.
The General Assembly meets under its president or Secretary-General in
regular yearly sessions.
The General Assembly is the main planning body of the UN that takes
decisions on critical issues such as budget, peace and security, and
admission of new members that requires a two-thirds majority.
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The Security Council has primary responsibility, under the Charter, for the
maintenance of international peace and security.
The Security Council consists of five permanent members namely China,
France, Russian Federation, United Kingdom and United States of
America, and ten non-permanent members.
In 1945, India joined the UN and since then it has been the third largest
contributor of troops to the UN Peace keeping missions and main
contributors to the UN budget.
Under United Nations Charter, the United Nations Economic and Social
Council (ECOSOC) was established as the primary body to manage
economic and social work of the specialized agencies of the UN, functional
commissions and regional commissions. Fourteen specialized agencies,
five regional commissions and 11 UN funds and programmes also report
to ECOSOC.
To fulfill its responsibilities, ECOSOC can consult business sector
representatives, intellectuals and around 3,200 registered non-
governmental Organizations.
Since the inception of the UN in 1945, ECOSOC has undergone over a
dozen proposals for reforms.
The conclusion of 62nd Session in Peru marked the end of the Commission
on Human Rights and the beginning of the Human Rights Council, under
the General Assembly resolution A/RES/60/251.
When the Commission was destroyed, it consisted of delegates of 53
member states, elected by the members of ECOSOC.
Compliant with the Paris Principles, National Human Rights Institutions
(NHRI) are central to human rights protection system and are equivalent
to the Office of the High Commissioner for Human Rights (OHCHR).
The adoption of the African Charter on Human and Peoples Rights in
1981 marked the beginning of a new era in the field of human rights in
Africa.
The African Commission on Human and Peoples Rights comprises of
eleven members serving in their individual capacity-Article 31.
The State parties to the Charter also undertake to submit, every two years,
a report on the legislative or other measures taken with a view to giving
effect to the terms of the Charter (Article 62).
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The European Convention of Human Rights was adopted by the Council
of Europe in 1950, and entered into force on 3 September 1953.
Within a period of three months from the date of the judgment of the
Chamber, any party to the case may, in exceptional circumstances, request
that the case be referred to a Grand Chamber.
3.10 Glossary
United Nations: International organization whose stated aims are
facilitating cooperation in international law, international security, economic
development, social progress, human rights, and achievement of world
peace
General Assembly: One of the five principal organs of the United Nations
and the only one in which all member nations have equal representation
Security Council: Permanent peacekeeping organ of the United Nations,
composed of five permanent members (China, France, Russia, the United
Kingdom, and the United States) and ten elected members
Sustainable Development: Pattern of resource use that aims to meet
human needs while preserving the environment so that these needs can
be met not only in the present but also for generations to come
Interventionism: Political term for significant activity undertaken by a state
to influence something not directly under its control
3.11 Terminal Questions
1. Briefly discuss the various organizations of United Nations in relations to
human rights development.
2. Discuss the function and powers of the General assembly.
3. Discuss the establishment, functions and powers of the Security Council
of UN.
4. Discuss the establishment, functions and powers of the ECOSOC.
5. Explain the subsidiary bodies of ECOSOC.
6. Briefly state about the UN Commission on Human Rights.
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3.12 Answers
Answers to Self Assessment Questions
1. (a) Food and Agriculture Organization; (b) World Health Organization
(WHO)
2. (a) False; (b) True
3. (a) Five; (b) 1945
4. (a) False; (b) True
5. (a) Security Council; (b) Seven
6. (a) True; (b) False
7. (a) Economic and Social Council (ECOSOC); (b) General Assembly
8. (a) False; (b) True
9. (a) 10 December 1946; (b) Australia
10. (a) False; (b) True
11. (a) Nairobi (b); National
12. (a) True; (b) True
13. (a) 1981; (b) Eleven
14. (a) True; (b) False
Answers to Terminal Questions
1. Refer to Section 3.2
2. Refer to Section 3.3
3. Refer to Section 3.4
4. Refer to Section 3.5
5. Refer to Section 3.5.2
6. Refer to Section 3.6
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3.13 Further Reading
1. Freeman, Melvyn, Soumitra Pathare. WHO resource book on mental
health, human rights and legislation. Geneva: World Health Organization,
2005.
2. Malone, David. The UN Security Council: From the Cold War to the 21
st
century. Colorado: Lynne Rienner Publishers, 2004.
3. MacFarlane, S. Neil, Yuen Foong Khong. Human Security and the UN: A
Critical History. Bloomington: Indiana University Press, 2006.
Unit 4 State of Human Rights in India
Structure
4.1 Introduction
Objectives
4.2 Genesis of Human Rights in India
4.3 Rights of Minorities
4.4 Human Rights in India
4.5 Regional Analysis
4.6 A Balance Sheet of Human Rights in India
4.7 Judicial Protection for Human Rights
4.8 Summary
4.9 Glossary
4.10 Terminal Questions
4.11 Answers
4.12 Further Reading
4.1 Introduction
The awareness of human rights had emerged many years ago, along with the
emergence of the concept of natural rights that are associated with the law of
nature. The main principle of a democratic and representative government is to
safeguard the rights of the citizens. This unit discusses the right to equality,
political rights, rights related to a person and right to privacy that every citizen of
India is entitled to.
The state of affairs of human rights in India is very composite. This is due
to the countrys large size and its extreme diversity. It is a developing country
and a sovereign, secular and democratic republic. India in the past was a colony
of western countries. Each citizen of India has several fundamental rights given
by the constitution of the country. Freedom of speech is one of the basic rights
of each citizen. Other rights are the freedom to move anywhere within the nation
and also outside the nation and the right to separate the judiciary from the
executive.
In this unit, you will study about the rights of minorities as paraphrased in
the Constitution of India. The study of human rights in India has been categorized
under human rights in ancient India, human rights in Islamic era, human rights
in British India and human rights in India after independence.
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The unit also gives a balance sheet of human rights with respect to the
constituent assembly, an overview of the judicial protection given to human rights.
Objectives
After studying this unit, you should be able to:
Discuss the genesis of human rights in India
Identify the rights of minorities in India
Evaluate human rights in India
Explain the judicial protection for human rights
4.2 Genesis of Human Rights in India
The perception of human rights is as ancient as the perception of natural rights
that are focused around natural law. The term, human rights, has originated
from international charters and conventions, particularly after the World War II.
4.2.1 Right to Equality
The right to equality is one of the six rights that have been granted to us. In the
Indian Constitution this right has been described in the Article 14 of the
Constitution of India as:
1. The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex and place of birth or any of them.
2. No citizen shall, on grounds only of religion, race, caste, sex, place of
birth or any of them, be subject to any disability, liability, restriction or
condition with regard to access to shops, public restaurants, hotels and
places of public entertainment; or the use of wells, tanks, bathing ghats,
roads and places of public resort maintained wholly or partly out of State
funds or dedicated to the use of the general public.
3. Nothing in this article shall prevent the State from making any special
provision for women and children.
4. Nothing in this article or in clause (2) of article 29 shall prevent the State
from making any special provision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes.
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Equal prospects for every one
All citizen have the same rights when it comes to getting a job in any government
office The right to employment in any State office is not dependent on the
religion, race, sex, descent, residence or place of birth of the candidate. All will
be treated on equal footing. Nothing can stop the parliament from passing laws
regarding any class of employment to any particular office of the Government,
whether the post is in the State, the union territory or local body. The Parliament
cannot be stopped from making any changes with respect to the clause of
which state or union territory the candidate resides in with regard to a particular
employment before the appointment has been made.
The Government has every right, irrespective of this article, to make
provisions for promoting certain sections of the citizens like schedules castes
and scheduled tribes, who according to the state have not so far had adequate
opportunities for gainful employment in the state. The state has every right
irrespective of this article to fill any unfilled posts during the said year using the
reservation policies as stated in clause (4) or clause (4A), in a separate category,
in the coming year or years. The separately created divisions of posts will not
be taken into account for that particular years vacancies for fulfilling the
requirement of the stipulated reservation quota, and will be taken separate from
the total jobs for that year.
Nothing in this article affects any legal provision which states that when a
person is appointed to a particular post and that post deals with any specific
religion or institution serving some denomination he or she shall belong to that
particular religion or institution that serves the particular section of the citizens.
4.2.2 Political Rights
Political rights are those rights by which citizens are given share in the political
life of the community, including that of the management of government. They
generally consist of the following rights:
Right to vote
It is an important political right in a democracy. It implies that every adult citizen
has the right to express his opinion by casting a vote at the time of election.
Aliens, bankrupts, minors and certain criminals are often denied the right to
vote. However, at present there is a tendency favouring universal adult suffrage.
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Right to be elected
This implies that the law should not forbid any citizen from holding any of public
offices. One can contest in the election and represent himself in the government.
The State can, of course prescribe certain minimum qualifications for the
representatives. This is the gift of democracy, which gives equal right to all citizens.
Right to public offices
No citizen should be prohibited to hold any public office under the State, on the
grounds of religion, caste, race, sex or language or any of them. All are equally
eligible for the highest office. This is a gift of democracy which gives equal right
to all citizens.
Right to petition
Citizens have the right to send petitions individually or collectively to the competent
authority, either executive or legislative, for the redressal of grievances. In a
democracy, the rulers cannot ignore the legitimate grievances of the people.
The legislative chamber in the democracy serves as a forum for ventilation of
public grievances.
Right to criticize government
Democracy is said to be a government by discussion and criticism. The right to
criticize the government should not be restricted. There should be free and frank
criticism of policies of the government on the proper path. This is what is meant
by saying that eternal vigilance is the price of liberty.
Right to residence
A citizen is free to live in any part of the country provided it does not endanger
the safety of the State. This right is regarded as a political right because of the
fact that it is exclusively reserved for the citizens and denied to aliens who have
no access to political rights, whereas citizens have it in full. Permanent
membership of the State, therefore, depends on permanent residence.
Right to protection while staying abroad
This is again enjoyed only by the citizens. Every citizen, while staying abroad,
can seek protection from the home state, in a difficult situation. If an Indian staying
in America suffers injuries due to an American and the American State does not
redress his grievances, the Indian Government may intervene on behalf of its
citizen.
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Right to public meeting
Last but not the least is the right to public meeting. A citizen should have the
freedom to prohibit anyone from holding a meeting in the public interest. John
Stuart Mill has gone to the extent of saying that the entire world has no right to
silence a fool.
4.2.3 Rights Relating to Person
The various rights granted to a person being arrested by various statutes in
India:
1. The most basic provision relating to arrest has been incorporated in Article
21 of the Constitution. It lays down that no person can be deprived of his/
her right to liberty, except in accordance with procedure established by
law.
2. The arrested person has right to be informed about the full particulars or
reasons for the arrest.
3. The arrested person has right to consult a legal practitioner of his/her
choice and to be defended by him.
4. The accused must be produced before the nearest magistrate within 24
hours of arrest (The time period excludes the time consumed in travel.)
5. The arrested person has right to inform a friend or relative or any other
person, who is known to him/her and is likely to take interest in his/her
welfare, about his arrest and the place where he is being detained.
6. A woman cannot be arrested before sunrise or after sunset except with
prior permission of a magistrate.
7. A woman can only be taken into custody in presence of a woman police
officer as far as practicable and the arrest must be affected with proper
dignity.
8. No beatings or force can be administered while arresting a juvenile or a
child.
4.2.4 Right to Privacy
Taking the ruling of Supreme Curt in the case of Kharak Singh v State of Punjab
as precedence, the top judiciary uses the right to privacy to interpret its true
essence by giving a broader interpretation of what this right means critically to
the citizens of the state. New Oxford English Dictionary gives the meaning of
privacy as a state in which one wishes to avoid any public appearances or be
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absent from public display, or the wish to withdraw from the society or stay as a
recluse or not get involved in the interest of the public. As defined in the Blacks
Law Dictionary, privacy is right of a person to be left alone without any publicity
or interference from the public at large in any of his or her concerns, that does
not affect the larger public with any implications what so ever. That is the right to
privacy is regarded as private to an individual.
To what extent privacy shall be allowed or protected is also part of the
right. Privacy has not been defined by the law but what have been stated are the
instances in which the law shall accord this right. What needs to be taken note
of is that the common law of the land has not yet brought in the right of privacy
into its fold and even the Parliament of India has so far not passed any law
regarding privacy and its implications.
Privacy and the Indian Constitution
The Constitution of India grants rights to the legislatures of the Centre and States
to enact and pass laws. The three lists of included in the Seventh Schedule of
the Constitution of India have enumerated many topics or areas in which laws
can be enacted and passed.
1. List I : Union List
2. List II : State List
3. List III : Concurrent List
The authority to pass legislations on a variety of subjects that have been
listed therein emerges from the following Articles of the Constitution of India:
Article 246 (1) of the Constitution of India provides the Parliament the special
powers to create laws pertaining to any of the matters specified in List I in the
Seventh Schedule (Union List). This control of Parliament is unregulated by
Article 246(2) and (3) and Article 246 (2) of the Constitution of India. It provides
the Parliament and the State Legislature the authority to create laws pertaining
to any matter that has been listed in List III, in the Seventh Schedule (Concurrent
List). The authority of the State Legislature is subject to Article 246(1), on the
other hand, the power of Parliament is unfettered by Article 246(3) and Article
246 (3) of the Constitution of India. It provides the State Legislature the special
authority to create laws in relation to any matter that has been listed in List II in
the Seventh Schedule (State List). This authority of the State Legislature is
according to Article 246(1) and (2).
Privacy is not a topic in any of the three lists in Schedule VII of the
Constitution of India. But Entry 97 of List I states: any other matter not enumerated
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in List II and List III .. Therefore, only the Indian Parliament is capable to
legislate on privacy since it can be elucidated as any other matter that has not
been specified in List II and List III. Till date there is no precise ratification on
Privacy. However, the Constitution of India has personified many Rights in Part
III, which are known as fundamental rights. These are listed in Article 14-30 of
the Constitution. Article 13 (2) make it illegal for the Indian State (Parliament and
State legislatures) to make any law, which removes or abbreviates the rights
conferred by Part III. Article 32 gives an assurance of the right to move the
Supreme Court of India for enforcing the rights conferred by Part III. This right is
accessible against the State, which has been clarified in Article 12, as inclusive
of the Government and Parliament of India, Government and Legislatures of
each State and every local and other authority in India.
The Indian Constitution has many fundamental rights which, even though
do not directly pertain to the matter of privacy, contain in them the inherent rights
of the citizen to guard their privacy in various areas, which cannot be infringed
by the government and its authorities and if done then legal proceedings can be
initiated against the same.
Historical tracing of the concept of privacy
For each individual to assert his independence and self-respect the basic civil
right of privacy is important. Lousie Brandeis said, The Right to Privacy is the
characteristic of sophisticated existence and a right most valued by civilized
men. India is a member of the International Covenant on Civil and Political Rights
and the European Convention of Human Rights. Both these bodies affirm the
right to privacy. The basic characteristic of the right to privacy as stated in the
above conventions is the right given to the citizens to take legal action against
the state for upholding the right. It is on the same grounds as other different
human rights. However the Constitution of India has so far not been able to truly
specify or define what Right to Privacy is. There is much difference of opinion
and perception even among intellectuals as to what it really entails. For some
like Winfiled, transgressing into ones seclusion or private property is infringement
of right to privacy. It appears that the legal acceptance of an individuals personal
space or identity is not normal to the culture of India.
Judicial activism and the right to privacy
A lot of judicial activism has been trying to set precedents for making the right to
privacy a fundamental right in the Constitution of India. And since the judgements
passed by the Supreme Court are legally binding on all courts of the country, as
stated by Article 141 of the Constitution of India, it is being seen that Supreme
Court and its landmark judgements are becoming the norm for legal changes.
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By time and again passing judgements to protect the privacy of the citizens
of India, the Supreme Court has been actively asserting the essence of personal
liberty and protection of life as stated in the Article 21 of the Constitution to be a
part of the basic right to privacy. Article 21 states, no person shall be deprived
of his life or personal liberty except according to procedures established by
law. Supreme Court has repeatedly asserted that if any individual or authority
is being asked in the course of any conceivable duty to infringe upon the liberty
or freedom of privacy of another person, that individual or authority must at
every point question such orders and actions in light of the law of the land.
Article 19 (1)(a) of the Indian Constitution as certain restrictive clauses to
the basic right to Freedom of Speech and Expression. This right cannot be used
for the following (i) defamation; (ii) contempt of court; (iii) decency or morality;
(iv) security of the State; (v) friendly relations with foreign states; (vi) incitement
to an offence; (vii) public order; (viii) maintenance of the sovereignty and integrity
of India. As long as the freedom of speech and expression does not in any way
resort to the above, it shall be protected by the law. The following Supreme
Court cases have reiterated the nature of this fundamental right.
1. Kharak Singh v. State of UP: In this case the UP police under the
Regulation 236(b), that gives the police to call on homes at night, was
harassing the plaintiff at odd hours. The Supreme Court held that Regulation
236 was not constitutional and violated Article 21. It inferred that the Article
21 of the Constitution comprised right to privacy as a constituent of the
rights to protection of life and personal liberty. The Court brought personal
liberty with privacy on the same level and came to the observation that
the concept of liberty in Article 21 was comprehensive enough to include
privacy and that a persons house, where he lives with his family is his
castle and that nothing is more deleterious to a mans physical happiness
and health than a calculated interference with his privacy.
2. Gobind v. State of M.P.: This was also a case were the plaintiff was
being paid visits at his residence. The Supreme Court laid down that
privacy-dignity claims deserve to be examined with care and can be denied
only when an important countervailing interest is shown to be superior. If
the Court does find that a claimed right is entitled to protection as a
fundamental privacy right, a law infringing it must satisfy the compelling
State interest test
3. State v. Charulata Joshi: The Supreme Court held that the constitutional
right to freedom of speech and expression conferred by Article 19(1) (a)
of the Constitution which includes the freedom of the press is not an
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absolute right. The press must first obtain the willingness of the person
sought to be interviewed and no court can pass any order if the person to
be interviewed expresses his unwillingness.
4. R. Rajagopal v. State of Tamil Nadu: The Supreme Court clarified that
whatever the petitioners have used as the material for autobiography of
auto Shankar from any public document, can be used even without the
plaintiffs permission. But if they use information which is not part of any
public document and has not been disclosed by the plaintiff willingly then
it amounts to infringement of his privacy and he has every right to hold the
petitioners for legally accountable. And if the petitioners are using material
already available as public document then the State cannot stop it from
being published. The Supreme Court stated that A citizen has a right to
safeguard his own privacy, that of his family, marriage, procreation,
motherhood, child bearing and education, among other matters. None
can publish anything that concerns the above matters without his consent,
whether truthful or otherwise and whether laudatory or critical. If he does
so, he would be violating the right to privacy of the person concerned and
would be liable in an action for damages.
5. Peoples Union for Civil Liberties (PUCL) vs Union of India: In this
case the Supreme Court observed that Article 21 of the Indian constitution
is violated if the Government uses Section 5(2) of Telegraph Act, 1885 to
tap phone lines. The apex court stated that right to privacy is a part of the
right to life and personal liberty as inherently stated in Article 21 of the
Indian Constitution and that this right cannot be altered except according
to procedure established by law.
6. In Mr. X v. Hospital Z: In this case the Supreme Court outlined its
opinion on delicate health related data being made public. In this case the
appellant had got his blood tested at the respondents hospital and it was
found that he was HIV (+). This information was disclosed by the hospital
to his family members and the family of the woman he was to be married
to. This unfortunately resulted in him being ex-communicated.. He
approached the National Commission to claim compensation against the
hospital for disclosing private information that was meant only for him and
claimed what the hospital did was unethical.
He had to approach the Supreme Court as the National Commission had
rejected his plea. He pleaded that the medical profession was not only
responsible for doing their duty towards caring but also for maintaining
utmost privacy as to the patients medical condition and since the right of
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secrecy had been violated he had right to compensation. Right of privacy
may, apart from contract, also arise out of a particular specific relationship,
which may be commercial, matrimonial, or even political. Doctor-patient
relationship, though basically commercial, is professionally, a matter of
confidence and therefore, doctors are morally and ethically bound to
maintain confidentiality.
The court resorted to jurisprudence and stated that every right has a
correlative duty and every assumed duty has a correlative right, the rule
was not complete and was subject to selected exemptions in the sense
that a person may have a right, but there may not be correlative duty and
the instant case fell within exceptions.
The Supreme Court stated that there were exception to the code of medical
ethics and permitted disclosure of medical data in certain circumstances,
under which public interest would override the duty of confidentiality
typically in cases where there exists a direct or imminent health risk to
others. According to the court, the right to confidentiality, if any, vested in
the appellant could not be forced in the current state of affairs, as the
projected marriage had with it the health risk of being infected with the
communicable disease from which the appellant suffered. While making
reference to the argument put forth by the complainant that his private
medical information was disclosed and therefore the hospital must pay
for damages, the Supreme Court stated that right to privacy was not
absolute and needed interpretation depending on the case, subject to
such action as may be legally taken for the prevention of offence or disorder
or for protecting health, morals, or rights and freedom of individuals.
7. District Registrar and Collector vs Canara Bank: It was ruled, that
exclusion of illegitimate intrusions into privacy depends on the nature of
the right being asserted and the way in which it is brought into play; it is at
this point that the context becomes crucial, to inform substantive judgment.
If these factors are relevant for defining the right to privacy, they are quite
relevant whenever there is invasion of that right by way of searches and
seizures at the instance of the State.
If one were to analyse the rulings made by the Apex Court. Then the
following three points come to the fore.
1. That any individual has a legal right to privacy and any infringement of this
right can hold the infringer liable as offender and hence legally accountable.
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2. That the right to privacy is a constitutional right and hence can be used as
defense against any infringement even by the State and its officials.
3. That this right is not an absolute right and hence where there is possibilities
of danger to other lives, others health, ethics or freedom or for prevention
of any crime it can be curbed.
In the case of ADM Jabalpur vs Shivakant Shukla,

the Supreme Court in
order to state if the right to liberty is restricted to any boundaries other than
those mentioned in the Constitution or other laws, made the following
observation. As observed by Khanna J:
Article 21 is not the sole repository of the right to personal liberty..no
one shall be deprived of his life and personal liberty without the authority
of laws follows not merely from common law, it flows equally from
statutory law like the penal law in force in India.
Hence it is clearly ascertained that even if not specifically assured, the
right to privacy, could be implied because of the implications of any general law.
The supreme Court has in the form of judicial activism interpreted the right to
privacy as mentioned in the Constitution as equivalent to right to life as stipulated
in the Article 21 of the Indian Constitution.
Protection of data and privacy
Protection of personal data is a common form of privacy. Various places like
schools, banks, directories, surveys, internet sites, universities etc have in their
databank information of personal nature regarding an individual like address,
phone numbers, email ids, name of relatives, occupation, interests etc.
Disclosing such personal information to interested parties could be lead to
infringement of privacy through unwanted calls or mails etc.
It is not that India does not a have any laws to protect data. There is a law
that protects data and it comes under the Information Technology Act, 2000.
However, it is not exclusively for data protection. None of the three list of the
Schedule VII of the Indian Constitution states data protection as a topic. However,
any matter not included in the three lists is included in List ones Entry 97 any
other matter not enumerated in List II and List III. So only the parliament of India
can pass any law relating to data protection as a matter not mentioned in either
List II or List III of the Schedule VII. Since it is a topic of importance the competency
to pass any legislation on data protection lies only with the Central Government.
The Information Technology Act, 2000 is the first stipulated legal data protection
provision as enacted by the Parliament of India.
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Origin of the Right to Privacy in India
The struggle or strive to uphold the right to privacy as a right under the Constitution
can be attributed to the ambiguous nature of the right. In the case of M.P. Sharma
v. Satish Chandra in which the various ways in which the police can exercise its
power to investigate and scrutinize were discussed, it was observed by the
Supreme Court that the right to privacy was not explicitly present in the
Constitution. Before coming to the conclusion, the Supreme Court explained it
in a not so open way and thus restricted itself to normal statutory provisions.
Thus the judiciary took a positive step towards stopping itself from too much
interpretation of the law. The court stated that it was not simply going to impose
the right of privacy on to a completely different set of rights by some forced
interpretation.
By making reference to the Fourth Amendment of the US Constitution, the
courts adopted a less broader and less formal path indicating that there was
lack of provision in the constitution for the same with reference to protecting the
privacy of Indians from improper legal scrutiny. In the case of Kharak Singh v
State of Punjab, the implications of this ruling were again used to tackle the
issues of police scrutiny and investigation on an accused person.. The argument
that followed is pertaining to the interpretation of right to privacy vis--vis personal
liberty as outlined in Article 21 of the Constitution. References were also made
to the debate and ruling in the cases of Munn v Illinois as observed by Field, J
pertaining to the fifth and fourteenth amendment to the American Constitution.
References were also made to other American and English judgements of which
the case of Wolf v Colorado is pertinent. The court in order to broaden the scope
of Article 21 with reference to personal liberty, stated that as a compendious
term to include within itself all varieties of rights which go to make up the personal
liberty of man, other than those dealt with in several clauses of Article 19(1). It
also stated that the constitution of India does not include explicitly the right to
privacy in its rights. And Ayyangar, J. stated this:
The right of privacy is not guaranteed under our Constitution and therefore
the attempt to ascertain the movements of an individual which is merely a manner
in which privacy is invaded is not an infringement of fundamental right guaranteed
by Part III.
The Supreme Court here seems to be lacking in any reference to the
prohibition on irrational search and seizure just like in the case of M.P. Sharma,
similar to what is provided in the fourth amendment to the American Constitution.
And due to this lack of reference in the Indian Constitution many misinterpreted
prohibition on unreasonable search and seizure as a single interpretation of
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right to privacy. It is still baffling as to how did the court conclude that secretly
conducting surveillance does not amount to violation of personal liberty as implied
in the Constitution. There is an absence of clarification as well, as to how the
conclusion that secret surveillance is not infringement of personal liberty was
arrived at by the court. Nevertheless the court cited from the case of Semayne
and stated that, the house to everyone is to him as his castle and fortress.
When taking into consideration the provisions as stated in scheme of Part III in
a broader way, the view of the minority became that every act of secret
surveillance, when interpreted under Article 21 and Article 19(1) (d) violated
Articles 21 and 19(1) (d), because any movement which is being monitored by
secret surveillance of police cannot be really free as per the essence and spirit
of the Constitution.
And hence the judgements as made by the minority were of the opinion
that any secret surveillance was an infringement of the right to freedom of
movement since they believed that it was against the true spirit of Article 21 of
the Constitution as any restriction that stopped a person from even mentally
move freely was a violation of the right to freedom of movement as stated by the
Constitution.
Even though the judgement passed by the minority negated the explicit
presence of the right to privacy it also said that it was against the Constitution to
conduct secret surveillances on someone. One must also keep in mind the
rationalization that went into the majority ruling in the Kharak Singh case. It took
into account the fact that Article 21 does not have the rights that are present in
Article 19, however this was rejected by the Supreme Court in the famous case
of Maneka Gandhi, in which. the respected bench ruled referring to the Kharak
Singh case:
In our view this is not the correct approach. Both are independent
fundamental rights, though they are overlapping. The fundamental right
to life and personal liberty has many attributes and some of them are
found in Article 19.
Most of the opinion as given in the Kharak Singh case depended on the
carving out theory as interpreted in Article 19. The verdict that succeeded the
dismissal in the famous Maneka Gandhi case elaborated different varied
interpretations of personal rights as per the Constitution and its provisions and
thus ruled that Article 21 cannot be a left over clause.
In the case of All India Bank Employees Association the Supreme Court
rejected the pleas of the employees to have the right to strike based on the
interpretation of Article 19(1) that the Article no matter how liberally one were to
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apply, in no way gives trade unions the liberty to go on strike as a basic right. It
also expressed that the right to privacy is not indirect and that cannot be a ground
for appeal to make it explicit. After ten years again in the case of Govind v State
of MP, the Supreme Court was faced with the issue of whether secret
surveillance by police is constitutional or not, and this time its ruling was different
from it ruling in the cases of Kharak Singh and M.P. Sharma. Referring to the
root of the purpose for such a right as mentioned in the Constitution, Matthew J
of the Supreme Court observed:
There can be no doubt that the makers of our Constitution wanted to
ensure conditions favorable to the pursuit of happiness. They certainly
realized, as Brandeis, J. said in his dissent in Olmstead v. US, the
significance of mans Spiritual nature, of his feelings and his intellect
(...). They sought to protect [Individual] in their beliefs, thoughts, their
emotions and their sensations. Therefore they must be deemed to have
conferred upon the individual as against the government a sphere where
he should be let alone.
The apex court was one with the notion that the basic right to privacy and
the principle behind it was intrinsic to the vary nature of the clause of liberty.
Taking into reference the various rulings of the American Supreme Court on
these matters, the Indian Supreme Courts rulings tried to be one with implied
right to privacy as mentioned in Part III of the Indian Constitution. And thus it was
able to include the right to privacy as part of the jurisprudence determining the
interpretation of the Indian Constitution regarding this matter. However it also
remained cautious and observed that this ruling is not a blanket ruling and every
time observations will be based on the nature of each case.
In the case of Govind the verdict was given by a Bench of three judges of
the Apex Court as compared to the verdict given by a Bench of six judges in the
case of Kharak Singh. The ruling in the Govind case however does not make
any reference to earlier rulings on the issue of privacy and therefore much is left
open for further interpretation.
Maneka Gandhi case
In the celebrated case of Maneka Gandhi the Honourable Justice Bhagwati
observed the difference between a direct right as stated in any law and indirect
right that stems from rights which in essence and spirit imply the presence of
similar rights. The Honourable Judge made a clear distinction between implied
right and explicit rights. He categorically stated that for a right to be admitted it
was not sufficient that it stem from an explicit right, but also that such a right be
implied in the right from which it flows. In this case referring to the rights mentioned
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in the Indian Constitution., he stated that integral to the named right or must
partake of the same basic nature or character of the named right. In his view,
any action that leads to the exercise of any listed fundamental right is not always
present in that particular right and needs to be looked into deeply..
As no right mentioned in the Indian Constitution explicitly names a right to
privacy as a right, it has to be proved that it is integral to personal liberty or
partaking the same basic character as individual liberty for it to be accepted as
part of the basic right to liberty. And it can be observed that the ruling in the case
of Govind, interprets the right to privacy as a right that is fundamental and
stemming from the rights as mentioned in the Constitution. Justice Mathew in
the case of Govind did not use the same interpretation as that of Justice Bhagwati,
and yet a similar interpretation was available in the All India Bank Employees
Associations case.
Other cases related to right of privacy post the Maneka Gandhi case:
The Supreme Court in the case of R. Rajagopal v State of Tamil Nadu, ruled
that right to privacy is an integral part of rights named in the Article 21 of the
Constitution. This is the case of a convict on death row, whose life story was to
be published. When the convict was in jail he wrote his life story and passed it
on to his wife without the knowledge of the jail authorities, and asked her to get
it published. Serious questions were raised on the conduct of many senior officers
in this autobiography. And so the editor of the publishing firm stopped by the
police from publishing the book. Verdicts given in cases, those came up in the
American Supreme Court, namely, Griswold v. Connecticut, Roe v. Wade and
New York Times Co. v. Sullivan, were used as references.
The right to privacy is implicit in the right to life and personal liberty
guaranteed to the citizens of this country by Article 21. It is a right to be
let alone. A citizen has a right to safeguard the privacy of his own, his
family, marriage, procreation, motherhood, child bearing and education
amongst other matters. None can publish anything concerning the above
matters without his consent.
The court made two exceptions to the rule with respect to publication of
matter which was already available to the public and the requisite behaviour of
public officials as being important for them to perform their duties. And hence it
can be seen as the first ruling which clarifies the stance of the court in relation to
the implicitness of right to privacy with respect to right to liberty as mentioned in
Article 21. According to the ruling given by majority in the case of Kharak Singh
the term personal liberty was not seen as an integral part of right to privacy. And
therefore there is no guarantee that even after the case of Maneka Gandhi cases
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that argue the nature of personal liberty will be seen as part of the basic
fundamental right as mentioned in the Constitution or not, the right to privacy
may be seen as part of the basic right to freedom.
In the case of Peoples Union for Civil Liberties v Union of India right to
privacy was discussed in relation to tapping of phone lines. The Supreme
Court ruled that right to privacy was an integral part of Article 21 and hence
could not be separated from it unless proper legal proceeding was followed. It
was observed by the Apex Court that conversation on the phone were private in
nature and part of that indivuduals personal life and therefore to tap phone lines
was in violation of Article 21. However the Court also held that if needed, the
right as mentioned in Article 21 could be curbed, but only by bringing in proper
Amendments to the Constitution and not otherwise.
If one were to dispassionately analyse the various rulings of the courts,
one could see that the courts have made an indirect and implicit connection
between the right to privacy and the rights as stated in the Constitution of India.
The Supreme Court in the cases of MP Sharma and Kharak Singh, as seen
earlier, rejected the existence of right to privacy, but in the cases of Govind,
Rajagopal and PUCL lower courts have clearly acknowledged the existence of
such a right. After the Maneka Gandhi case the stance of the judiciary is worth
taking note of regarding the right to privacy, despite the limitations that were laid
down by the Court. However it seems unlikely that if the courts were to go over
the issue of right to privacy from the beginning they would actually reach any
conclusion as to its inclusion or existence in the Article 21 of the constitution.
And even if there did exist some chance then also unless a full bench of six
judges unanimously ruled in its favour, the verdict in the Kharak Singh case
cannot be overruled. Based on some of the observations made by Supreme
Court, one could reach a conclusion that Part III of the Constitution does contain
the right to privacy. In the case of Kahrak Sing, the first observation was made,
in which the Supreme Court stated, personal liberty as per Article 21 is a
compendious term to include within itself all varieties of rights which go to make
up the personal liberty of man other than those dealt with in several clauses of
Article 19(1).
In the case of Maneka Gandhi two more principles were laid out. One
stated that any law which interferes with the right to personal liberty needs to do
so without any bias, it must be not unreasonable and must not be unrealistic.
And the other stated that even if the right is not stated explicitly it can be interpreted
as being part of the stated right and that the nature of the stated right to privacy
is characteristic of an individuals right to dignity that the Constitution guarantees,
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to all. Therefore one can see how the right is not only a deterrent to stop the
State from curbing an individuals private space but is also a step to help the
State to enable its official mechanism to safeguard its private life. One can observe
that the constitution very strongly supports the right to privacy and this is
appropriated by the required bench of Supreme Court, the ambiguity of this
clause can be resolved.
Self-Assessment Questions
1. Fill in the blanks with the appropriate words.
(a) There shall be equal opportunity for every citizen in issues related to
employment or appointment of any office under a _____.
(b) ______ is said to be a government by discussion and criticism.
2. State whether the following statements are true or false.
(a) A citizen is free to live in any part of the country provided it does not
endanger the safety of the State.
(b) A woman can be arrested before sunrise or after sunset without prior
permission of a magistrate.
4.3 Rights of Minorities
The Constitution has passed various bills in order to safeguard the rights of
minorities in India.
1. Constitutional rights to safeguard religious and linguistic minorities in India
It has been noted that the Constitution of India does not define the term
Minority. However, it refers to Minorities and clearly discusses those
which are based on religion or language. Even though the Constitution
does not make any mention of Minority, the rights of minorities have been
written in great detail.
2. Rights of minorities with regard to Common Domain and Separate
Domain mentioned in the Constitution of India.
The Constitution of India has given the minorities two sets of rights which
are distinguished as Common Domain and Separate Domain. The rights grouped
under Common Domain are the rights which are valid for all the citizens of India,
whereas, the rights under Separate Domain are only applicable to the minorities
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and are reserved in order to protect their identity. The difference between
Common Domain and Separate Domain has been vividly described in the Indian
Constitution. The Preamble to the Constitution asserts India to be a secular
state which is deemed relevant for the religious minorities. This is equally
significant to all minorities as the Preamble to the Constitution also secures
liberty of thought, expression, belief, faith and worship along with equality of
status and worship.
4.3.1 Common Domain: Directive Principles of State Policy-Part IV of
the Constitution
The Indian Constitution has made provisions of Fundamental Rights which falls
under Part III. It is imperative for the State to comply with these rights as they are
also judicially enforceable. The Constitution also has another set of rights which
are non-justiciable in nature. These rights are stated in Part IV and are related to
social and economic rights of people. These rights are referred to as Directive
Principles of State Policy and are not legally binding upon the state. They are
however, fundamental in the governance of the country and it shall be the duty
of the State to apply these principles in formulating laws.
Article 37, Part IV of the Indian Constitution covers non-justifiable Directive
Principles of State Policy and included the following provisions having significant
implications for the minorities:
Obligation of the State to endeavour to eliminate inequalities in status,
facilities and opportunities amongst individuals and groups of people
residing in different areas or engaged in different vocations; Article 38 (2)
Obligation of State to promote with special care the educational and
economic interests of the weaker sections of the people (besides
Scheduled Castes and Scheduled Tribes); Article 46
4.3.2 Common Domain: The Fundamental Duties Part IVA of the
Constitution
Part IVA of the Constitution, relating to Fundamental Duties as provided in Article
51 A applies in full to all citizens, including those belonging to Minorities. Article
51A which is of special relevance for the Minorities stipulates as under:
Citizens duty to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and
regional or sectional diversities
Citizens duty to value and preserve the rich heritage of our composite
culture
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4.3.3 Common Domain: The Fundamental Rights Part III of the
Constitution
The Constitution has provided a definite space for both the domains, i.e., common
as well as separate. In Part III of the Constitution, which deals with the
Fundamental Rights, is divided into two parts viz. (a) the rights which fall in the
common domain and (b) the rights which go to the separate domain. In the
common domain, the following fundamental rights and freedoms are covered:
i. Peoples right to equality before the law and equal protection of the laws;
[Article 14]
ii. Prohibition of discrimination against citizens on grounds of religion, race,
caste, sex or place of birth; [Article 15 (1) & (2)]
iii. Authority of State to make any special provision for the advancement of
any socially and educationally backward classes of citizens (besides the
Scheduled Castes and Scheduled Tribes); [Article 15 (4)]
iv. Citizens right to equality of opportunity in matters relating to employment
or appointment to any office under the State and prohibition in this regard
of discrimination on grounds of religion, race, caste, sex or place of birth;
[Article 16(1)&(2)]
v. Authority of State to make any provision for the reservation of appointments
or posts in favour of any backward class of citizens which, in the opinion
of the State, is not adequately represented in the services under the State;
[Article 16(4)]
vi. Peoples freedom of conscience and right to freely profess, practice and
propagate religion subject to public order, morality and other Fundamental
Rights; [Article 25(1)]
vii. Right of every religious denomination or any section thereof subject to
public order, morality and health to establish and maintain institutions
for religious and charitable purposes, manage its own affairs in matters
of religion, and own and acquire movable immovable property and
administer it in accordance with law; [Article 26]
viii. Prohibition against compelling any person to pay taxes for promotion of
any particular religion; [Article 27]
ix. Peoples freedom as to attendance at religious instruction or religious
worship in educational institutions wholly maintained, recognized, or aided
by the State. [Article 28]
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4.3.4 Separate Domain of Minority Rights
The Minority Rights provided in the Constitution which fall in the category of
Separate Domain are as under:
i. right of any section of the citizens to conserve its distinct language,
script or culture; [Article 29(1)]
ii. restriction on denial of admission to any citizen, to any educational
institution maintained or aided by the State, n grounds only of religion,
race, caste, language or any of them; [Article 29(2)]
iii. right of all Religious and Linguistic Minorities to establish and administer
educational institutions of their choice;[Article 30(1)]
iv. freedom of Minority-managed educational institutions from discrimination
in the matter of receiving aid from the State;[Article 30(2)]
v. special provision relating to the language spoken by a section of the
population of any State;[Article 347]
vi. provision for facilities for instruction in mother-tongue at primary
stage;[Article 350 A]
vii. provision for a Special Officer for Linguistic Minorities and his duties; and
[Article 350 B]
viii. Sikh communitys right of wearing and carrying of kirpans; [Explanation 1
below Article 25]
4.3.5 Multiculturalism in Indian Constitution
The numerous articles of the Indian Constitution, which grant rights to the
minorities, clearly represent India as a multi-religious, multi-cultural, multi-lingual
and multi-racial nation. National integration and communal harmony in the Indian
society further strengthen the nation in a strong bond of unity. Besides being an
assembly of individual citizens, India also comprises of two separate categories
of constituents. The commonwealth of the country is divided into two levels,
which include every citizen of India individually and a large number of religious,
cultural, linguistic and ethnic groups among its citizens. In India, which is a vast
country, every citizen is also a member of his/her own respective branch
including cultural, religious, linguistic and ethnic groups. Like the citizens of India,
these groups also enjoy the same fundamental rights and have the same
fundamental duties to execute.
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4.3.6 Security of Weaker Sections in Secular India
The concept of secularism in the Indian Constitution strengthens the nations
social pluralism, which highlights the need for the security, welfare and growth
of the weaker sectionswhether social, economic or educational status of any
particular groupof the country. Therefore, the Constitution talks about the
weaker sections of the Indian society, comprising of religious and linguistic
minorities, scheduled castes, scheduled tribes and backward classes. It either
formulatesor leaves room for formulatingspecial provisions of different nature
and varying import for these sections of the society.
Activity 1
India has a stronger right to privacy over telephone records than many other
countries. Do you agree with this statement? Give reasons to support your
answer.
Self-Assessment Questions
3. Fill in the blanks with the appropriate words.
(a) The Constitution of India has given the minorities two sets of rights
which are distinguished as Common Domain and ______ Domain.
(b) The Indian Constitution has made provisions of Fundamental Rights
which falls under _____.
4. State whether the following statements are true or false.
(a) Article 17, Part IV of the Indian Constitution covers non-justifiable
Directive Principles of State Policy and included the following
provisions having significant implications for the minorities.
(b) Part IVA of the Constitution, relating to Fundamental Duties as provided
in Article 51 A applies in full to all citizens, including those belonging
to Minorities.
4.4 Human Rights in India
The situation of human rights in India as come a long way since ancient times,
the British period and the period after independence.
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4.4.1 Human Rights in Ancient India
In its endeavour of putting the ancient law at par with the modern legal systems
of civilized world the legal scholarship conveniently equated dharma with law
the Dharmasastra simply became a code of law and texts like Manusmriti
became laws of Manu. Having being labeled law, the element of dharma lost
its inherent flexibility and situation-specificity. Further, the essence of Dharmic
understanding the inherent link of all individual actions with the cosmic system
of righteousness, as the ultimate arbiter of what was the right thing to do at any
given moment was lost. It was reduced to a positivist legal construct of law as
a command of a supreme human agency. The ancient law, as we view it today,
has gone through smooth evolution from the pre-classical Vedic law to the late-
classical Hindu law; the four major stages of development of traditional Hindu
law are summarized as follows:
Cosmic order in pre-classical Vedic law
The ancient Vedic concept of Rta (macrocosmic universal order system) reflected
the awareness of people that there is a superhuman, macrocosmic form of
order in the world which is not directly subject to human influence, but to which
mankind, in its quest for good life should relate and to an extent, submit. In this
macrocosmic order, all individual beings (gods, humans and others) needed to
contribute to the sustainability of this superhuman order.
The Vedic literature of this period is adorned with vast and complex Vedic
rituals to provide support to the cosmic order, but there is hardly any text in the
nature of the prescriptive legal texts or binding doctrines. In the Vedas, law is an
entity beyond direct human control... (it) does not claim institutional loyalty as a
State legal system would do. It was never thought in the Vedic period that the
rulers are regulating the world by a legal order, as any human law would be
conceptually inferior. Everyone was subject to the all pervasive macrocosmic
force and could contribute by ritually correct action to this macrocosmic order.
The Vedic people cooperated to sustain the existence as a whole in both, visible
and invisible ways through sacrifices to gods who were the upholders of Rta,
like fire rituals which were sacrifices to Agni, the fire god.
Dharma and the classical Hindu Law
The complex rituals of the Vedic period had become the monopoly of a small
elite class of literate ritual performers, mainly the Brahmins. Thus, these were
gradually replaced by simpler forms to make them accessible to the masses.
The concept of Rta gradually metamorphosed into dharma (microcosmic order
or duty), which became the core concept of Hinduism, wherein Hindus
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contributed to cosmic order not only through their ritual action, but also through
their individual right action and appropriate behaviour. Thus karma (which includes
inaction) became related to dharma.
Dharma is one of those Sanskrit words that defy all attempts at an exact
rendering in English or any other language. Dharma is much wider than positive
law. Dharma is not mere religion or simply law, as pointed out by Robert Lingat.
It requires performance of both social and religious duties. It is not a creation of
the king or the State but is above them, so if a king ever deviated from his dharma,
he was compelled to abdicate. Dharma is known as the way of righteousness
but it was not an absolute concept that depicts goodness; it was not akin to
Moses absolute commandments of Thou Shall Not nature. No authority ever
listed the steps on how to follow dharma. So, there was no cosy life raft of
simple prescriptions or a legally binding system to stay upright on the principle
of righteousness.
Salient features of the justice system in ancient India
1. Judicial institutions
There is no clear reference to the existence of judicial organization in the Vedic
period. It appeared that village elders acted as judges and punishments were
awarded according to the nature of offence, in accordance with local usages
and customs. But gradually the king became the fountain head of law and
dispensed justice. The administration of justice was then delegated and entrusted
to experts.
Kautilya mentions two types of courts - Dharmasthiya (civil courts) and
Kantakasodhana (criminal courts). The criminal courts, according to Kautilya,
took care of the following cases:
(i) Protection of artisans, merchants, etc.
(ii) Suppression of the undesirables
(iii) Detecting criminals by means of spies
(iv) Arresting the suspicious or real culprits
(v) Post-mortem examinations
(vi) Discipline in various state departments
(vii) Punishment for mutilation
(viii) Capital punishment
(ix) Ravishment of immature girls
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(x) Examination by word and action thereon
(xi) Miscellaneous offences
Kantakasodhana was in the nature of the doctrine of police power. Hence,
the king, in order to regulate the liberties of its people and to ensure peaceful
enjoyment of their rights, was obliged under this doctrine to remove all anti-
social elements that acted against the established social order. It is interesting
to see that Kautilya envisages torture to elicit confession for criminals who were
cruel in their offences.
However, it was not without safeguarding them, as no person could be
arrested till three days after commission of a crime. There was a severe
punishment for one who kept an innocent man in confinement. The young, the
aged, the diseased, the intoxicated, the mad, those suffering from hunger, thirst
or fatigue due to journey, those who confessed their guilt, the physically unfit,
the pregnant women and those who had not passed a month after delivery were
generally exempted from torture.
2. Secret agents
Kautilya visualizes a country riddled from top to bottom with spies. Spies and
agents were employed to detect criminals, whether in the service of the State or
among the people. They were to ascertain the fair and foul dealings of villagers
or of the superintendents of villages and report the matter to higher authorities.
The spies also detected the false witnesses. As a detective, it was the duty of
the spy to seek out sedition, whether in the brothel or in the palace of the king.
They served as a machinery to guard the interests of law and order and the
interest of people concerned.
3. History of punishments in India
As pointed out before, varna considerations dominated the prescription of
punishments by Manu. For instance, if a sudra teaches a brahmana his duties,
the king shall order for hot oil to be poured into his mouth and ears but if a
brahmana killed a sudra, it amounted to killing a frog or a dog, a sin off which he
could get rid off by mere penance. Manu prescribed admonition, fine, corporeal
punishment and banishment. Brahmanas were exempted from capital
punishment, but in extreme cases banishment was recommended.
At the same time, Manu thought punishment to have both retributive and
deterrence value and wanted that the king should fully ascertain the motive,
place of occurrence, ability of the offender to suffer penalty, nature of crime and
then only impose the penalty which the accused deserves as unjust punishment
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destroys reputation among men and fame (after death) and causes the loss of
heaven even in the life after death. According to many historians, this feature of
the ancient Indian jurisprudence was a great development in the field of
administration of justice. However, Manus legal code was not accredited with
this sense of justice because of the inherent caste-ridden bias throughout the
scheme of the text.
In contrast with Manus code is Arthasastras criminal code, which is rather
severe as characterized by Lex Talionis, i.e., eye for an eye and tooth for a
tooth. A person who insulted his father, mother, son, brother, teacher or an ascetic
had his tongue cut off; if he bites any limb of these persons, he shall be depraved
of the corresponding limb. Kautilya even brings in the Brahmana within the scope
of capital punishment by providing him the death penalty by drowning, if he is
guilty of high treason. For spreading false rumours, housebreaking and stealing
war animals of the king, hanging was the penalty. A person would be set on fire
alive , if he tried to enter the kingdom, or forcibly tried to get into the kings
harem, or provoked tribes that are not civilized or provoked enemies, or who
created disharmony in the forts or in any port of the country or amongst the
soldiers. Kautilya treated sexual offences in a lenient way, in comparison to
most of the offences that are punishable with fines.
Colonial rampage and a lost civilization
The vastness and intricacies of the ancient regulatory order suffered a deathblow
with the codification of law in the colonial period. The codification is applauded
as a great step towards reformation of the patriarchal and caste biases of the
previous order (which it indeed was, as is evident from revolutionary steps like
abolition of sati and similar punishment for similar crimes for all Indians) without
realizing that it also wiped off ancient Indian morality, simply to replace it with
Victorian morality.
The Indian legal texts were discarded on the pretext of being either
regressive or primitive without any effort to appreciate some radical notions
stored in them. The following example will make this point more clear:
Suicide in ancient India
In the Dharmasastras, killing of self i.e., Atmaghata, has always been considered
as something reprehensible a fall (pataka) from the normal human existence.
But there were certain exceptional cases in which killing of self was permitted.
These sanctioned suicides lost their existence and were criminalized with the
colonial penal code, 1960. This was due to the western view that crime could
never fathom the metaphysical nature of the Act.
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The first exception is called tatvajana, i.e., negation of ones temporal self
in an endeavour to understand the nature of universal self or cosmic
consciousness, in the pursuit of ultimate essential knowledge of human
existence. However, this sacred space was never shared with women, as these
bigger questions of life were always considered to be beyond the reach of their
understanding. For the lesser beings called women, the other category of
permitted suicide was the recourse to reach Parmatma. This second category
included the suicides that were committed at places of pilgrimage (for instance,
Jal Samadhi, which meant immersion of self in sacred river) or other sacred
places. For a woman, her husbands funeral pyre was the sacred place, as it
was believed that as long as a woman does not burn herself in fire on the death
of her husband, she is never released from the female body (Sati).
The above forms of sanctioned suicide only related to metaphysical,
esoteric and other worldly notions. Suicide was also acceptable to attain some
non-spiritual ends, like when it acquired the form of resistance. Self-immolation
or Jauhar by Rajput war-widows to save their honour was a very common practice
of resistance exhibited by the brave Rajput queens. Thus, with the criminalization
of every attempted act of suicide, not only the ancient spiritual space denied to
the Indians but all types of resistance-suicide also became criminal. Here, it is
relevant to look at Gandhijis tool of Satyagraha, which became the most dreaded
weapon for the empire. The Gandhian notion of Satyagraha or hunger strike to
express deep resistance against the exploitative colonial regime was a much
desiderated revival of the sanctioned suicide of the ancient India, but Section
309 was the perfect colonial tool that thwarted all forms of such protest.
4.4.2 Human Rights in Islamic Era
Before coming to the topic of human rights in Islamic era, one should first look at
the pre-Islamic era to fully understand the human rights granted by Islam.
Pre-Islamic era
Cultures, countries, nations that existed before the Islamic era, were ruled by
kings, sultans and monarch. They were mostly kingdoms. The rulers had full
autocratic power over the people of the kingdom and executed and threw out of
the kingdom anyone they felt like and could not be even held responsible for
their actions.
In that era, the social structure was caste and class based. Descendents
and blood relatives of the ruling family were considered as nobility and enjoyed
unlimited privileges. The rest of the people, who even though made for a vast
majority were looked down upon by the noble men and women. There existed
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wide gaps amongst the different classes. Human beings were used as slaves
and were treated with extreme indignity and cruelty. Most people were mistreated
like animals and subjected to discrimination based on race, class, caste and
colour. Line of descent implied a certain excellence of origin. People were divided
and separated on the basis of their families; abilities, knowledge and morality.
Virtues did not mean anything.
There were no fundamental rights and freedom. Fundamental rights and
freedom such as freedom of religion and conscience, right of property, latitude
of thought, were not in use. People had to face unprecedented torture because
of their beliefs and thoughts.
The essential principle of law was trampled. Equality before the law was
the last thing that could exist. There was no such thing as fair and impartial trial.
Rights in law were not absolute, personal wishes and interests did for law.
Different penalties were imposed on different caste members, who committed
the same crime.
While the world was in such a situation, Islam came and implemented the
greatest development in the history of the human kind. If examined fairly, long
before the declaration of the human rights in western cultures, it will be seen
that the ultimate humane objectives were ascertained in both, the Holy Quran
and in the Sunnah of Prophet Muhammad (Peace Be Upon Him). In fact, Prophet
Muhammads farewell sermon during his farewell pilgrimage has distinctive
principles on the basis of Human rights.
Humans have distinctive value from other creations. This value increases
with their belief in God and by obeying his rules. By this way, humans become
the most dignified guests of the universe. Because of this belief, value encircles
every human being, woman or man, young or old, white or black, weak or strong,
poor or rich, irrespective of the religion or race he or she belongs to, this shadow
of clemency covers all of them.
Islam, by this way, prevented people from shedding blood unlawfully,
protected peoples chastity, properties and protected all of them from being
exposed to such assaults like breaking into their houses and moral pressure.
Human dignity, honor and the right to have their dignity and honor respected is
protected by Islam in the literal sense than ever before.
Islam brought following principle rights and freedoms
Any discrimination based on any ground such as race and color has been abated
by Islam. All men are descendants of Hazrath Adam. No one can choose his
race or the color of his skin. It all happens with Gods decision. Discriminating
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people on the basis of race, skin color and links with someone superior in
comparison to others is wrong and harmful according to both Islam and Humane
reasons. In the Quran, God states:
O humankind! Surely We have created you from a single (pair of) male
and female and made you into tribes and families so that you may know
one another (and so build mutuality and cooperative relationships, not
so that you may take pride in your differences of race or social rank and
breed enmities). (Al-Hujurat Surah, 49:13)
As it is clearly seen in this verse, being different should not be simulated
as a means of superiority but for building mutuality and cooperative relationships.
The following Hadith focuses more on the matter. Abu Zarr Ghifari, when, once
in rage, called Bilal, O son of a Negress, the Prophet did not tolerate this
intemperance. He admonished him and said, You still smack of the evil traits of
Jahiliyah, (that you tried to disgrace him by lowering the dignity of his mother on
the basis of color). Abu Zarr regretted and asked Bilal to forgive him.
Islam has abated the claims of superiority, based on descent. Further,
Islam has given the public the right to control the administrators. It aimed at
abating arbitrary managements and unjust, unlawful acts of the administrators.
Abu Bakr, when he was elected as the first Caliph, did not claim any privileges.
In fact, he clearly refuted any special status in the opening words (after the pre-
amble) of his inauguration sermon: I was assigned to rule you and I am not the
best amongst you. He also went on to tell people that they should obey him as
long as he does his duty properly and that if he does not, then he commands
them not to obey him. Once Omar who was an elected leader of his people
while giving a sermon in the mosque told the people gathered that even though
they had elected him he did nto think he was best. He told them that he would
try his best to rule according to the teachings of the prophet and that if he made
any error the people must help him to rectify it. As he said that one man from
the gathering stood up and said the only way they would correct him if he did
not follow the holy book was by beheading him. He became delighted with the
answer.
Freedom of thoughts and conscience are the second most important rights
of humans after having right to live. Not avowing this right of any individual means
decreasing his rank to that of animals. It advocates both, freedom of thought
and freedom of conscience. The principle of there being no compulsion in religion,
does not allow coercion of anyone to the Islam.
Islam has given great importance to abolish the institution of slavery. Before
Islam, slavery was in use with the utmost savagery. There was no reason to
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anticipate that slavery would be abated completely, which was widespread in
every corner of the world. For this reason, Islam was not able to abrogate slavery
completely, so it improved it in the most civilized and humane way. Additionally,
Islam made the transition from slavery to freedom possible. However, Islam did
develop efficient systems to abate slavery completely.
Islam also had a different outlook on the freedom of having property, as
well as all feelings. Islam preached that God gave us the feeling of ownership
and it is a part of our human nature. The Holy Quran states its meaning clearly.
Islam let individuals have possessions and laid the groundwork for having
possessions lawfully. The right of individual property that Islam acknowledges
cannot be intervened without the permission of the owner.
1. Equality before the law
All people are equal before the law (regardless of their ethnicity, belief, etc.) as
equal as the teeth of a comb. The rule of law is an essential principle in Islam. A
state leader and a commoner are equal before the law. Even if the felon is a
state leader he receives punishment. Sultan Mehmed II the conqueror with a
Greek architect, Hazrath Ali with a Jew, Salaaddin Ayyubi with an Armenian, all
came before the judge. During Prophet Muhammads era in Mecca, a woman of
a tribe called Banu Makhzum was caught stealing and the people brought her
to the Prophet. The people of her tribe tried to plead for her release. They sent
Usama, Zayads son, to Muhammad, as Zyad was very close to the Prophet.
But when Usma asked for mercy for the woman, Muhammad was angry and
furious and scolded Usama. Then he gave this historic sermon:
O people! Know of a certainty that the Almighty ruined many of the peoples
before you because they did not observe justice. When an influential
person among them who had powerful backing committed a crime, they
ignored it, but if the same crime was committed by a weak one, they
applied the necessary punishment. I swear by God, that if my daughter
Fatima steals, I will not hesitate to cut off her hand. (Bukhari 8:6800;
Muslim 3:4187 and 4188) Abu Bakr
In Islam, there is no unlawful punishment. No one is responsible for another
persons crime. This principle is stated in the Quran as follows, Say:
Am I, then, to seek after someone other than God as Lord when He is
the Lord of everything? Every soul earns only to its own account; and no
soul, as bearer of burden, bears and is made to bear the burden of another.
Then to your Lord is your return and He will inform you concerning that
over which you used to differ. (Al-Anam Surah, 6:164)
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Islam also preaches differently on the topics of impartiality and
independence of the courts principle. Judicial authority in Islam is impartial and
independent. Courts are the judicial authority in Islamic countries. Like
commoners, the ruler of the States came before the court and were punished, if
found guilty of a crime.
2. Domiciliary inviolability and privacy of the individual
In Islam, no one or no authority has right to intervene the privacy of the individual.
No one has right to enter any ones private property. Inquiring about the private
lives of individuals is strictly impermissible.
3. Freedom of travel
In Islam, it is stated that traveling is both, an exemplary and a healthful act, so
was always prompted.
4. Right to live
Protection of life, property and chastity: This matter has been put forward in
the farewell sermon of Prophet Muhammad (PBUH) in the most perfect sense.
O people: your lives and your property, until the very day you meet your
Lord, are as inviolable to each other as the inviolability of this day you
are now in and the month you are now in. Have I given the message?
O God, be my witness. So let whoever has been given something for
safekeeping give it back to him who gave him it.
5. Social insurance
Islam provided for the needy, in view of the facts such as age, sickness,
calamities, disasters and accidents. It secured their futures by institutions like
Zakat (Almsgiving) and social foundations.
6. Freedom to work, wage equality and justice
In Islam, working and making an effort for livelihood are valued and encouraged.
In fact, working for the livelihood of ones family is regarded as a form of prayer
with the condition of fulfilling obligatory prayers. In addition, Prophet Muhammad
(PBUH) has instructed people to pay wages to their workers before their sweat
dries out. Workers, on the other hand, should be honest and sincere in their
work for the best of the income.
7. Protecting the children
In Islam, from the very moment of birth, propagates help to be given to the parents
for raising the child and an allowance to be granted from the treasury. Today, in
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most of the wealthy Islamic countries, child support enforcement services help
needy families.
8. Free and obligatory basic education
In the Hadith, to seek knowledge is obligatory unto every Muslim, be it man or
woman. Islam makes basic education necessary. Besides, religious, moral and
literary education, professional education should also be given.
4.4.3 Human Rights in British India
The various struggles for liberty and freedom were aimed at bringing about radical
changes in the functioning of various practices and formal bodies. The main
purposes of these movements were to bring about sweeping changes within
existing systems to enhance the right of people. Most of the struggles for freedom
were to bring about democratic ways into the system and propagate the cause
of human and civil rights The main focus of the freedom movement was not
only to free the country from a colonial rule but also to bring about changes in
civil and human rights so that the movement for independence got a balanced
support from the masses. All movements related to civil rights and human rights,
in India, were influenced heavily by western thinking and philosophy. And most
such movements had very successful beginnings in the country.
The civil rights movement in the colonial days was the intellectual product
of nationalist ideas and had the privilege of having nationalism as a strong,
supporting force. But their present day standard-bearers have to reckon, not
with foreign rule, but with their own elected sovereign government as the other,
the latter having the advantage of using nationalist discourse against the civil
rights activists, branding them as subversive and anti-national. The civil
libertarians movement was influenced by the Manga Carta, the American Bill of
Rights or the French Declaration of the Rights of Man and yet remain nationalists.
In the initial phase, the consciousness about the civil liberties was
manifested in the demands for equal opportunity in employment, freedom of the
press and the abolition of racial discrimination in legal proceedings. One of the
many causes which led to the organization of the Indian National Congress in
1885 was the failure of Indians to get the Ilbert Bill passed in its original form,
proposing to give Indian magistrates the power to try British subjects in criminal
cases. By the turn of the century, this consciousness crystallized in a new
generation with new thoughts and new ideas, impatient of its dependent position
and claiming its rights as free citizens of the British Empire.
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As the colonial State regularly crushed human rights and civil autonomy of
the people, the Indian National Movement continually struggled to protect and
sustain these values. In reality, bringing down British imperialism was perceived
by the leader of national movement as a prerequisite to the progress of India
along the lines of democracy and civil liberties. Here, people would have the
power to defend their fundamental rights. Obviously, the human rights that the
people of India enjoy, in however restricted degree, is a legacy of our national
movement. The significance that was accorded to the subject of civil liberties
and human rights by our national movement can be effortlessly comprehended
by the following statement of Mahatma Gandhi in 1922:
We must make good the rights of free speech and free association. We
must defend these elementary rights with our lives. Liberty of speech
means that it is unassailed even when the speech hurts, Liberty of press
can be said to be truly respected when the press can comment in the
severest term upon and even misrepresent matters. Freedom of
association is truly respected when assemblies of people can discuss
even revolutionary projects.
In 1939, Gandhiji stated, Civil liberty consistent with the observance of
non-violence is the first step towards Swaraj. It is the foundation of freedom.
There is no room there for dilution or compromise. It is the water of life. I have
never heard of water being diluted.
Indian Civil Liberties Union (ICLU)
In the year 1936 on the 24
th
August in Bombay, the first civil rights body came
into existence under the leadership of Rabindranath Tagore and Sarojini Naidu
was the working president. It was called The Indian Civil Liberties Union (ICLU).
K.B. Menon was the General Secretary. Later branches were set up in Calcutta,
Madras and Punjab. The organization collected information about any violation
of human rights that was underway in prisons or to monitor any suppression of
the press or any ban on literature that amounted to restriction of basic human
rights.
As a result of the ICLUs campaigns, considerable consciousness about
civil rights was created within the major party of the national movement, the
Congress. In 1937, when the Congress came to power in some provincial
governments for a short period, a circular was sent to all ministries regarding
the preservation of civil rights.
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4.4.4 Human Rights after Independence
In India the status of human rights is not very simplistic. And this is due to the
very vastness of this country and its complex diversity. It being a developing
nation along with its vibrant democracy and secular nature, adds to the
complexities.
Freedom to practice any religion is a provision of the constitution of India.
Other rights provided by the Constitution are freedom of movement within and
outside India and freedom of speech and expression. The separation in the
executive and judiciary is also provided for by the Indian Constitution.
Even though American Congress Library states that there exists much
human rights problems in India, if one were to compare with some other countries
in South-Asia, it would seem less in magnitude. While taking all these factors
into consideration, the 2010 report of Freedom in the World by Freedom House
rated India second in the category of political rights and third in matters of civil
rights and thus fetching India the highest rating of a free nation.
However the Human Rights Watch reported that India had some grave
human rights problems. It reported how India had very low accountability when
it came to the armed forces and its actions on civil societies, it had no control
over police atrocities and abuses. The brutality and torture that the enforcement
bodies subjected the citizens to was not held accountable. The ill-treatment and
brutalities met out towards human rights workers in India was closely condemned
in 2011 by the United Nations.
The concept of human rights is one of those concepts about which one
can say that the main ambit is well understood, but the boundaries are often
found to be obscure and its area is expanding with judicial activism. In a broad
manner, one can say that human rights are those rights which may be legitimately
claimed by a person by reason of the fact that he or she is born as human being.
In this sense, they are to be considered as common to every human being and
do not require any further condition or ingredient for their recognition. Wealth,
status, age, gender, nationality, race, religion all these are irrelevant for claiming
the enjoyment of human rights. Once it is established that a person is a human
being, he or she would certainly be entitled to enjoy human rights. Of course,
this does not imply that there may not be any legitimate classifications when
human rights are the issue. The exact content and scope of any right may often
depend on differentia. In fact, every law that has been enacted by the legislature
indicates selection of a particular class of persons for regulation or benefit and
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exclusion of others. How far this is permitted or is ought to be permissible, are
matters on which many legal contests have been won or lost.
The differences in various characteristics of human beings will often justify
a difference in treatment. The profession of prostitution cannot claim the same
benefits and treatment as does the profession of a doctor or a teacher. The
duties of a doctor may be higher than those of ordinary citizens. A public servant
may have to sacrifice his or her freedom, in comparison with a person in private
employment. In this manner, differences in so many matters may justify
differential treatment in relevant sphere. Nevertheless, while all such legislations
may justify themselves on the basis of certain special considerations or elements,
there will still be need to remember that surpassing the special features of a
situation or class of persons, there still survives the basic human element which
has to be respected within legitimate limits.
Human rights education is universally neglected due to enormous human,
social and political costs. Respect for human rights is the very basis of a civilized
society and of the republican democratic form of government enshrined in the
preamble of the Indian Constitution. A republic is a polity which treats the citizens
as sovereign, upon whose consent power becomes legitimate authority. The
first lesson in human rights education is that in India there are no subjects but
only citizens. The subject is a political inferior who has to render obedience to a
political superior, while a citizen is being endowed and defined by possession of
certain inherent basic rights limited and holds accountable power of the State
howsoever manifested. Accordingly, a major grounding in the concept of
citizenship in a republic form of government is indispensable to any human
rights education.
So, many basic rights of men and women are available to persons who
may not be citizens. The very notion of being human carries with it certain rights
and immunities, violation of which deprives human persons of their humanity.
Even though, it may look philosophical, no process of human rights education
can begin without a full understanding of the complexity of idea of being human
or being a person. It should be clear that the expression human rights itself
requires that the bearer of the rights must be a human being. Therefore, it may
even be necessary to postulate universal human rights of a person to be and to
remain human.
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4.5 Regional Analysis
India is an diverse nation having a dynamic press and a powerful judiciary for
the protection of fundamental rights. Additionally, the Indian Government has
lately set up a human rights commission for taking care of the human rights of
each and every Indian citizen. Despite this, almost every state in India has been
facing the problem of human rights violations . The Government is under pressure
from various human rights organizations to take stringent measures to check
and reduce the number of violations.
4.5.1 Rights Situation in North-East
Three regions of India Punjab, J&K and N-E states have been demanding
separation from the Indian republic since independence. The Khistani movement
of Punjab was a menace in the 1980s but the state mechanism managed to
curb that with military and political action by 1990. Yet the insurgency problems
due to demands of separation in J&K and North Eastern States, continue to
challenge the India government. Official spokesperson often term people seeking
secession in various states as terrorists and such activities are termed as
terrorist activities in national and local media since journalists depend heavily on
official sources for news feed. The two regions of J&K and the North East are
often termed by Indian government as troublesome areas due to secession
demands and related activities. The seven North-East states of Assam, Manipur,
Nagaland, Tripura, Mizoram, Arunachal Pradesh and Meghalaya, have been
since independence, in the grip of multiple conflicts. There is demand for
secession, terrorism, insurgency, ethinic issues, cultural clashes, local autonomy,
tribal conflicts, the problem of illegal cross- border migration from neighbouring
countries, etc. And the nature of these conflicts is more often than not violent
and hence the Indian officials have to resort to counter insurgency measures
which often lead to human rights violation.
More than 50,000 lives have been lost since 1947 due to various conflicts
in this region. The differences between the mainland and the states of North
East exist in the region of ethnicity, religion, language, culture and much more. It
has created a scenario of them versus us. The basis of these conflicts is
historical. The separateness of the regions often influences debates in the political
groups and policy makers. The uniqueness of the regions is also not highlighted
in the mainstream English and Hindi media which is mostly interested in Hindu-
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Muslim politics or news on celebrities. The media generally neglects responsible
reporting from these areas due its preoccupation with other more entertaining
news.
Strong reactions are often evoked from the rest of India whenever demad
for separate states are made by the north eastern states and huge number of
military forces is applied to counter this uprising. This however has resulted in
various forms of human right violation, some which can be proved some which
cannot be, Human right violation reports range from burning, torture, killing or
even gutting of whole villages. International Human Rights bodies have been
reporting such violations and the Indian Government has also set up the National
Human Rights Commission to look into atrocities committed by the Indian military
and security forces. The state officials however counter this by saying that
murders and killings committed by the insurgency groups are also human rights
violation and need to be looked into on equal footing.
The Human Rights bodies see the Armed Forces (Special Power) Act
1958 as a major culprit. This law is used to enforce draconian rules in any State
that faces distrubance. The law permits any military or para-military officer to
arrest, shoot or kill anyone who is simply suspected of being a terrorist. An
Amnesty International briefing on the law stated: The AFSPA empowers security
forces to arrest and enter property without warrant and gives the security forces
power to shoot to kill in circumstances where members of the security forces
are not at imminent risk. It facilitates impunity because no person can start legal
action against any members of the armed forces for anything done under the
Act, or purported to be done under the Act, without permission of the Central
Government (Amnesty 2005).
The power to declare any area as troubled is vested in Section 3 of AFSP
Act. The section states, If, in relation to any state or Union Territory to which this
act extends, the Governor of that State or the administrator of that Union Territory
or the Central Government, in either case, if of the opinion that the whole or any
part of such State of Union territory, as the case may be, is in such a disturbed
or dangerous condition that the use of armed forces in aid of the civil power is
necessary, the Governor of that State or the Administrator of that Union Territory
or the Central Government, as the case may be , may by notification in the
Official Gazette, declare the whole or such part of such State or Union territory
to be a disturbed area. (have not rewritten since this seems to exactly how the
act is states so no need to rewrite)
Amendments to the AFSPA made in 1972 granted the authority to the
Central Govenrment, to declare any area as disturbed as per the main Act.
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Earlier this power vested with the State Governments. The Supreme Court in
the case of Inderjit Barua v State of Assam, AIR 1983 Del. 514, held that the
Governor is empowered to declare any area of the State as disturbed area and
yet it could not be an arbitrary decision without any legislative guildlines. The
Court also held in the case of Naga Peoples Movement of Human Rights v
Union of India, AIR 1998 SC 431, that Section 3 cannot be construed as conferring
a power to issue a declaration without any time limit. There should be periodic
review of the declaration before the expiry of six months.
The special powers of the military forces are stated in the Section 4 of the
AFSP Act. According to this section, Any commissioned officer, warrant officer,
non-commissioned officer or any other person of equivalent rank in the armed
forces may, in a disturbed area: (a) If he is of opinion that it is necessary so to do
for the maintenance of public order, after giving such due warning as he may
consider necessary, fire upon or otherwise use force, even to the causing of
death, against any person who is acting in contravention of any law or order for
the time being in force in the disturbed area prohibiting the assembly of five or
more persons or the carrying of weapons or of things capable of being used as
weapons or of fire-arms, ammunition or explosive substances; (b) If he is of
opinion that it is necessary so to do, destroy any arms dump, prepared or fortified
position or shelter from which armed attacks are made or are likely to be made
or are attempted to be made, or any structure used as a training camp for armed
volunteers or utilized as a hide-out by armed gangs or absconders wanted for
any offence; (c) Arrest, without warrant, any person who has committed a
cognizable offence or against whom a reasonable suspicion exists that he has
committed or is about to commit a cognizable offence and may use such force
as may be necessary to effect the arrest; (d) enter and search without warrant
any premises to make any such arrest as aforesaid or to recover any person
believed to be wrongfully restrained or confined or any property reasonably
suspected to be stolen property or any arms, ammunition or explosive substances
believed to be unlawfully kept in such premises and may for that purpose use
such force as may be necessary.
In the case of InderjitBarua v State of Assam, AIR, 1983 Del 514, the
Supreme Court held that conferment of power on non-commissioned officers
like a Havaldar cannot be said to be bad and unjustified. Further, in Luithukia v
Rishang Keishing, (1988) 2 Gau LR 159, the Court held that the armed forces
must act in cooperation with the district administration and not as an Independent
body. Armed Forces could work in harmony when they are deployed in disturbed
area. According to Section 5 of the AFSP Act, Any person arrested and taken
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into custody under this Act shall be made over to the officer in charge of the
nearest police station with the least possible delay, together with a report of the
circumstances occasioning the arrest. In the case of Horendi Gogoi v. Union of
India, (1991) Gau CR 3081, the Apex Court held that in case of arrest of any
person, army authority is duty bound to handover to the officer-in-charge of the
nearest police station with least possible delay. In the case of Naga Peoples
Movement for Human Rights etc. v. Union of India, the Supreme Court held that
a person arrested and taken into custody in exercise of the powers under Section
4(c) of the Central Act should be handed over to the officer in charge of the
nearest police station with least possible delay so that he can be produced
before nearest Magistrate within 24 hours of such arrest excluding the time
taken for journey from the place of arrest to the court of magistrate. As you have
seen in Unit 1, the above is in conformity with Article 22 (2) of the Constitution.
(In this para I did not rewrite since they are judgments lifted straight out of cases)
The people performing actions under the orders of the AFSP Act are
protected by the Section 6 of this Act. It states that No prosecution, suit or other
legal proceeding shall be instituted, except with the previous sanction of the
Central Government, against any person in respect of anything done or purported
to be done in exercise of the powers conferred by this Act. The sate of Maniour
has been under the enforcement of this Act since 1980 due to several insurgency
issues. And since then numerous human rights violation have been recorded in
this state. Cases of murders, killingsm torture destruction of property and much
more have been recorded by the internation human right bodies. Voices have
been raised several times for the lifting of the act from this state. And a chain of
events like the bombing of a convoy of Assam Rifles, a security force involved in
counter-insurgency operations, in Malom on 2 November 2000 in retaliation to
which, Assam Rifles soldiers reportedly went berserk and killed 10 civilians,
have further intensified the campaign for the the lifting of the AFSPA from the
state.
An online campaign to repel the act from the state intensified after these
events. Websites such as Manipuronline.com, E-Pao.net (pao stands for mail
in Manipuri), Kanglaonline.com and The SangaiExpress.com started to display
and broadcast news on various insurgency and counter insurgency issues. Online
reporting and social networking sites created awareness among human rights
activists from all over the country and this helped to motivate protests. Irom
Sharmila Chanu, the Maniouri poet, who has been on a unique form of protest to
seek the attention of national and international human rights bodies on the state
of affairs in the Manipur, has been helping the movement to gain momentum.
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After the death of 10 civilians she has gone on a hunger strike till death, similar
to Gandhiji. She is now in jail and being force fed.
4.5.2 Rights Situation in Kashmir
Along with the damage to life caused by militancy and terrorism in Kashmir, the
violation of human rights as inflicted by the Indian military forces has been also
been very disturbing. Human rights violation in Kashmir by the Indian army has
been documented as amounting murder, torture, rape, detentions and illegal
killings. These have been documented in detail by Human Rights Watch, PUCL
(Peoples Union for Civil Liberties) and others. Much of the violation goes un-
noticed, unrestricted or without any reprieve later on. The official say this is
required to counter a proxy war waged by Pakistan on India. Very few violations
have seen the daylight of justice.
Exhibit
Indian Express
Mon May 16 2011, 16:04 hrs
Srinagar
Zero tolerance for human rights violations in Kashmir: Army
Calling for Zero Tolerance regarding human rights violations, a senior Army
commander said power does not flow from the barrel of the gun but by
upholding the dignity of people and respecting their sentiments.
Power does not come from the muzzle of the gun, but by upholding the
dignity of the people and respecting their sentiments, General Officer
Commanding of the Srinagar-based Chinar Corps Lt General S A Hasnain
said at a seminar on human rights.
Lt Gen Hasnain also said Army would try to win over hearts and use that as
its main weapon in combating insurgency in Kashmir.
Chief of Armys Northern Command Lt General K T Parnaik in his address
commended the track record of Indian Army in upholding human rights despite
challenges.
He stressed on the use of minimum force and acting in good faith.
Spread over two sessions, several personalities including former Army
Generals, High Court Judges, Vice Chancellors, journalists and writers took
part in the seminar.
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4.5.3 Rights Situation in Uttar Pradesh
Uttar Pradesh continues to be lawless and has prevalent instances of widespread
human rights violations. According to the state police figures, a total of 1, 18,
195 cases were recorded under the Indian Penal Code (IPC) in the year 2006 in
comparison to 1, 17, 748 cases in the year 2005. These comprised 5,482
murders, 3,420 insurgencies, 109 abductions for money, 1,795 dowry killings
and 1,161 rapes, etc. Human rights violations also involved desecration of the
right to life, owing to alleged fake encounters, torture and unrestricted utilization
of weapons.
The state of Dalits continued to be appalling in Uttar Pradesh. On the
basis of the State Polices records, a total of 4,104 crimes against the Scheduled
Castes (SCs) and Scheduled Tribes (STs) had been recorded during the year
2006. These comprised 312 murders, 302 serious injuries, 212 rapes, 50 cases
of arson and 1,320 cases under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act.
Child employment was widespread in Uttar Pradesh. The Moradabad
brassware manufacturing units perpetually exploited children regardless of the
ban on child labour. There were approximately 18,000 children who worked in
furnaces and additional 20,000 - 25,000 children who worked in the in casting
and scrapping operations of the brassware industry. These children were
exposed to vapours and gases which affected the respiratory track resulting in
various diseases of the lungs such as tuberculosis. Nevertheless, the wages
they were paid ranged only from `7 to `15 per day.
Self-Assessment Questions
5. Fill in the blanks with the appropriate words.
(a) The ________ simply became a code of law and texts like Manusmriti
became laws of Manu.
(b) The complex rituals of the _____ period had become the monopoly
of a small elite class of literate ritual performers, mainly the Brahmins.
6. State whether the following statements are true or false.
(a) Karma is one of those Sanskrit words that defy all attempts at an
exact rendering in English or any other language.
(b) There is a very clear reference to the existence of judicial organization
in the Vedic period.
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4.6 A Balance Sheet of Human Rights in India
Human rights are the common standard of achievement for all people and all
nations. Human rights can related to right to life liberty, equality and dignity of
the individual and any other right that is guaranteed by the International
Declarations, Covenants, or the National Laws. They are declared in various
conventions and declarations such as the United Nations Declaration and
International Covenant (i.e., the Universal Declaration of Human Rights, 1948
and Agreement on Civil and Political Rights (1966) and Agreement on Economic,
Social and Cultural Rights (1966) and U.N Convention on the Rights of the Child
(1989), the Constitution of India, Special human rights legislation like the
Protection of Human Rights Act, 1993, the Code of Criminal Procedure 1973,
etc.
These rights take into account diverse needs of human beings and each
declaration works to serve the other. But in order to makes sure that these right
are enforced one particular body needs to recognize them. For example India is
a signatory to the UN Declarations and International Covenants, but this only
has binding effect at the inter-governmental level. The courts may or may not
take this into notice while deciding any human right violation case. Fundamental
rights as enumeraeted in Articles 14, 19, 21, or 22 of constitution of India can be
used to enforce human rights by remedies found in Article 32, 226 and 227. The
Code of Crimimal Procedure or Indian Evidence Act also recognize some deeper
forms of human rights violations. Human Rights Act, 1993 under Section 12, 18,
19, 20 also protect human right violation in the society by specialized procedures.
4.6.1 Human Rights and the Constituent Assembly
As rational living beings human beings have a few basic and fundamental rights
that are collectively known as Human Rights. These rights are intrinsic to the
very nature of all human beings and hence the moment a human being is born
they come into existence. The Constitution of India also provides certain basic
rights to tis citizens and these are called fundamental rights and are stated in
Part III of the Constiotution in Articles 14 to 35. These rights stated in Universal
Declaration of Human Rights and also those which are provided in International
Covenant on Civil and Political Rights and International Rights on Social,
Economic and Cultural Rights are similar to the Fundamental Rights as stated
in the Indian Constitution.
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Self-Assessment Questions
7. Fill in the blanks with the appropriate words.
(a) ______ rights are the common standard of achievement for all people
and all nations.
(b) Human rights that are recognized under the provisions of Code of
Criminal Procedure or the Indian ______ Act may go deeper and
vitiate the criminal proceeding itself.
8. State whether the following statements are true or false.
(a) For the purpose of legal enforcement, the fact of recognition by a
particular source is least important.
(b) The Constitution of India, as adopted in 1950, provides certain rights
to its citizens known as fundamental rights.
4.7 Judicial Protection for Human Rights
Human rights are legal entitlement possessed by all by virtue of being humans.
They stand for human dignity. They are universal but inalienable. They are
protected by international treaties and instruments, customary laws, constitutions
domestic laws and are enforceable. Human rights are available to all humans
against the excesses of state. Human rights are not an exclusively Eurocentric
idea. They have evolved with each religion, culture and customs. In the Indian
culture, from Rigveda to Manusmiriti to Ashoka Human Rights, humanitarian
principles have been the cornerstone of our national culture. The Indian freedom
movement is a saga of struggle for the basic rights of a man.
The UN has enacted numerous multilateral treaties and instruments for
giving human rights a legal base and also an enforcement mechanism to ensure
compliance by the involved states. The most prominent among them are
i. International Bill of Rights
ii. UDHR-1948, ICCPR and ICESCR of 1966 and 1st Optional Protocol to
ICCPR
iii. Convention on Genocide
iv. The Refugee Convention
v. ICERD
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vi. CEDAW
vii. CAT
viii. CRC
The UN has also passed many guidelines and directives for effective
implementation of human rights. UNs Tehran Conference adopted structural
approach in 1968, by recognizing the diversity of political systems, cultural
differences and varying levels of development and application of human rights
standards accordingly. Human Rights are a dynamic concept allowing its three
generations to coexist simultaneously. At the same time, it allows varying
emphasis on effectiveness according to capabilities of states party to implement
them.
The UN has effective enforcement machinery built in each of the legal and
specialized instruments. Respective high powered committees oversee their
working and can investigate noncompliance of major deviations. The UN also
has various investigative procedures to examine gross violations of human rights.
India has enacted the Protection of Human Rights Act 1993 and has constituted
the National Human Rights Commission to look after all individual complaints
against the acts of the State. Most states in India have state human rights
commissions whose functions are similar to those of the NHRC in a State.
4.7.1 Three pioneer principles as the essence of human rights
From the viewpoint of the Criminal Justice Administration, the spirit of human
rights is preserved in three great rules or principles. All three principles may
have a number of sub-principles. Out of these principles, legality is the first. It
means that predetermined laws decide the substantive standards pertaining to
behaviour and sanctions as well as procedural standards. Also, limitations and
restrictions valid to substantive procedural laws that favour the human rights
shall be adequately clear and specific to eliminate illogical executive action.
Besides, it means that individuals subjected to the criminal procedure shall be
treated by the same token without consideration of wealth. In the ambit of legality,
personal freedom restricting processes must abide by some law emerging from
both, the exercise of statutory power or through judicial procedure.
The second principle refers to the due respect to the individual involved in
the criminal procedure, which means that at the substantive and procedural
levels, the dignity of the accused (the victim, witness, etc.) must be regarded. It
implies that measures such as torture, inhuman and degrading treatment or
punishment must be prohibited. It calls for the equal interest shown by the accused
as well as the victims in case they want to be safeguarded. It also implies that
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the accused is presumed to be innocent, until he is proven guilty of the crime
following legal rules.
Last but not the least; the third principle refers to the equality of criminal
justice. It implies the observance of some minimum standards that are followed
in several criminal procedures, for instance, independent and unbiased judiciary,
trial to be held in open or in front of public, equal access to officially authorized
counsel and free of charged legal aid in case of poor, information about grounds
of arrest and accusation and access to data or facts, right to be set free on bail
and immediate trial.
4.7.2 Custodial Violence in Brief
Torture
Laws related to torture such as customary law, domestic laws, constitutions,
Geneva Conventions, etc., prohibit torture in any form, as it de-humanizes people.
This prohibition is non-derogable in any circumstances including emergency
and war. Torture, in which a person is intentionally subjected to extreme physical
pain or emotional distress, is mainly used to elicit information, break the will to
resist, intimidate, humiliate and degrade, unless is arises from, or is inherent in
or is incidental to lawful sanctions.
The convention against torture and other cruel, inhuman or degrading
treatment or punishment is a specialized legal UN multilateral treaty. It stipulates
the following:
1. Exceptional circumstances or superior orders will not be valid excuses or
mitigating circumstances
2. No limitations as to nationality of accused or place of crime
3. Acts of torture be promptly and impartially investigated and timely, fair and
adequate compensation be given
Article 20(3) and 21 of Indian Institution, Section 29 of the 1861 Police Act,
Sections 330 348 of IPC, Sections 24, 25 and 163 of Evidence Act, Articles 14 &
15 of Covenant of Civil and Political Rights, Art 5 of the Code of Conduct for Law
Enforcement Officers and Rule 6 & 21 of UN Body of Principles for Protection of
all Persons Under Any Form of Detention or Imprisonment contain provisions
prohibiting torture.
Custodial death
Custodial violence and custodial death cause a chasm between police and public
and it is further widened due to increase in the number of such cases, media
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exposure and public awareness. There are administrative, social, professional,
psychological etc factors. Lack of probity in public life, lack of specialized
investigating skills, incentives and rewards, sheer callousness etc are other
reasons. Transparency in arrests, medical examination at given intervals, honest
maintenance of records, increasing of awareness about human rights, improving
interrogation skills, etc., are some of the means of reducing incidences of
custodial violence and deaths.
(1) Human Rights vs Role of a Police Officer
The police force is a service created by law and is responsible for:
1. Maintaining and enforcing law
2. Maintaining public order
3. Rendering aid and assistance in emergencies
There are no standard problems or solutions in police work. Understanding
the responsibilities and spirit of law and the art of applying it to the unique
circumstances of the problem in hand, is the hallmark of a police officer. This
gives him a lot discretion which must not be illegal, indiscriminate or arbitrary.
To effectively manage its mandate the police force has been given many
powers and authorities, which one must know. It is also important to know their
potentially harmful and corrupting effects. The code of conduct, value system
and ethics are the beacon and the cherished goal is public trust. Self-ethics,
group ethics and professional ethics affect the attitude and performance of the
police force.
While performing a law enforcement task one must question:
Its legality
Its necessity
Its proportionality
There are many national and international guidelines which set out
directives and codes for professional ethics. Most of them are not legally binding
but enjoin upon all law enforcement officials to conduct their professional lives
by these codes. Some of the important ones are:
1. A code of conduct for police in India
2. UN code of conduct for law enforcement officials
3. UN basic principles for the use of force and firearms
4. Convention against torture
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5. Effective prevention and investigation of extra legal, arbitrary and summary
executions
6. Basic principles of medical ethics
7. Body of principles for the protection of all persons under any form of
detention or imprisonment
8. UN basic principles of justice for victims of crime and abuse of power
Activity 2
List a few acts of human rights violation in your city/town, which you know
of.
Self-Assessment Questions
9. Fill in the blanks with the appropriate words.
(a) Human rights are not an exclusively ______ idea.
(b) The convention against torture and other cruel, inhuman or degrading
treatment or punishment is a specialized legal UN _______ treaty.
10. State whether the following statements are true or false.
(a) From the viewpoint of the Criminal Justice Administration, the spirit
of human rights is preserved in five great rules or principles.
(b) Understanding the responsibilities and spirit of law and the art of
applying it to the unique circumstances of the problem in hand, is the
hallmark of a police officer.
4.8 Summary
Let us recapitulate the important concepts discussed in this unit:
The issue of human rights is an intricate and multi-faced phenomenon.
Through different periods of history, human rights have always preserved
their political and legal identity, although they were now and then given a
religious, ethnic or philosophical colour.
The Right to Equality has been described in Article 14 of the Constitution
of India.
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Political rights are those rights the which citizens are provided with in the
political life of the community, including those related to the management
of government. They generally comprise the following rights: Right to vote,
Right to be elected, Right to public offices, Right to petition, Right to criticize
government, Right to residence, Right to protection while staying abroad
and Right to public meeting.
The right to privacy offers itself as an exhibit of the higher judiciarys
capacity to interpret and the right originating as an effect of the bigger
process of stretching the realm of particularly listed fundamental rights.
which shall be critically scrutinized in the perspective of the Supreme
Courts verdict, in the case of Kharak Singh.
Although the Constitution of India provides no definition of the word Minority
and only talks about Minorities and those groups, on religious or linguistic
grounds, the rights of the minorities have been elaborated within the
Constitution, in detail.
The Constitution provides two categories of rights of minorities. These
two categories can be divided into common and separate domains. The
rights which are part of the common domain are those that apply to every
Indian citizen. The rights which are categorized as separate domain are
those which apply to the minorities only and these are directed at protecting
their identity.
A significant characteristic of the Constitution are the Directive Principles
of the State Policy. Though the Directive Principles are affirmed to be the
base of the governance of the country. They cannot be legally enforced.
However, they are the guiding principles for building a social order
distinguished by social, economic and political justice, liberty, equality and
fraternity as articulated in the preamble of the constitution.
This unit also gave an overview of the human rights scenario in ancient
India and the salient features of the justice system in ancient India, with
respect to the cosmic order in pre-classical Vedic law, Dharma and the
classical Hindu law.
The Islamic viewpoint of human rights can be evaluated by the fact that in
the basic feature of Islam is that it allocates some rights to man as a
human being. To put it across more precisely, it states that every human
being, irrespective of whether he is a citizen of this country or not, whether
he is a Muslim or a non-Muslim, whether he lives in the woods or a desert,
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some basic human rights are applicable to him just because he is a human
being. These rights should be recognized by every Muslim. In fact it is the
duty of every Muslim to fulfil these obligations.
In the British-ruled India, the State consistently exploited human rights
and civil autonomy of the people, the Indian National Movement was involved
in a frequent struggle to defend and uphold these values.
The Constitution of India came into existence on 26th January 1950. The
affect of the Universal Declaration of Human Rights (UDHR) is evident in
Part III of the Constitution and in other sections too. Pertaining to this topic
it is vital that a focused reference be given to Article 21 of the Constitution.
4.9 Glossary
State of affairs: A combination of circumstances that are applicable within
a society, or a group, or a country, at a particular time
Colonial territory: A territory that falls under direct political control of a
State
Scheduled castes: Economi cal l y and soci al l y di sadvantaged
communities of India
Public office: A position or occupation established by law for the purpose
of exercising the authority of the government in the service of the public
Petition: A officially documented request, especially one that is signed by
a large number of people with the purpose to appeal to the authority
concerning a specific cause
Right to Privacy: Law that is concerned with the function of protecting
and preserving of privacy rights of individuals
Article 21: An Article of the Indian Constitution that says that No person
shall be deprived of his life or personal liberty, except according to
procedure established by law.
Minorities: A section of people who are racially or politically different from
a larger group of which it is a part
Multiculturalism: The act of accepting or promoting multiple ethnic
cultures, applicable to the demographic set-up of a specific region or
country
Dharma: A term in Hinduism that stands for ones righteous duty
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4.10 Terminal Questions
1. What do you mean by political rights?
2. What is right to privacy? State the right to privacy in India.
3. How the rights relating to minorities are protected in the constitutional
scheme of India?
4. Discuss the role of human rights in ancient India.
5. What was the position of human rights in India after independence?
4.11 Answers
Answers to Self-Assessment Questions
1. (a) State; (b) Democracy
2. (a) True; (b) False
3. (a) Separate; (b) Part III
4. (a) False; (b) True
5. (a) Dharmasastra; (b) Vedic
6. (a) True; (b) False
7. (a) Human; (b) Evidence
8. (a) False; (b) True
9. (a) Eurocentric; (b) Multilateral
10. (a) False; (b) True
Answers to Terminal Questions
1. Refer to Section 4.2.2
2. Refer to Section 4.2.4
3. Refer to Section 4.3.5
4. Refer to Section 4.4.1
5. Refer to Section 4.4.4
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4.12 Further Reading
1. Nangia, S.B. Human Rights in India Issues and Perspectives. New Delhi:
A.P.H. Publishing Corporation, 2000.
2. Das, Asish and Prasant Kumar Mohanty. Human Rights in India. New
Delhi: Sarup and Sons, 2007.
References
Brandeis, Louis;Warren, Samuel(1890). The Right to Privacy.Harvard Law Review, 1890.
Collected Works of Mahatma Gandhi. University of Virginia, 2011.
Unit 5 Indian Constitution and Human Rights
Structure
5.1 Introduction
Objectives
5.2 Critical Evaluation of Human Rights in the Constitution of India
5.3 Human Rights and Relevant Articles in Indian Constitution: An Appraisal
5.4 Indian Constitution and UN Declaration on Human Rights
5.5 International Covenant on Economic, Social and Cultural Rights
(ICESCR) and India
5.6 Human Rights: Chinese and US Constitutions
5.7 Summary
5.8 Glossary
5.9 Terminal Questions
5.10 Answers
5.11 Further Reading
5.1 Introduction
In this unit, you will learn about the constitutional protection to human rights in
India. The Constitution of India was inspired by the goals set out in the Universal
Declaration of Human Rights (UDHR), 1948. The Preamble to the Constitution
of India underlines the need to secure to all citizens justice, liberty, equality and
also dignity of the individual as important values. A number of civil and political
rights, such as the right to equality, freedom of speech, right to life and personal
liberty, prohibition of traffic in human beings and forced labour, freedom of
conscience and free profession, and freedom of practice and propagation of
religion, have been enshrined in our Constitution . In case of infringement of any
Fundamental Right, the right to move the Supreme Court for issuing appropriate
directions or orders or writs is also a Fundamental Right. A number of economic,
social and cultural rights (based on the Directive Principles of State Policy),
such as the right to education, health and work, have been provided by the
Constitution of India . The principles laid down in the Directive Principles of State
Policy are fundamental in the governance of the country.
This unit will also introduce you to various international human rights
instruments and their application in India. India was actively involved in the drafting
of the UDHR. The Indian delegation at the UN meet on human rights, headed by
Dr Hansa Mehta, gave significant inputs in the preparation of the Declaration.
India completely adheres to the rights established by the UDHR. Today, the
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country is a party to six core human rights instruments of the UN, including the
International Commission on Human Rights (ICHR), the International Covenant
on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR), and two optional protocols to
the convention of the rights of the child.
Objectives
After studying this unit, you should be able to:
Evaluate the role of the Constitution of India in protecting human rights in
the country
Describe the provisions under the various Articles of the Indian Constitution
that cover the Fundamental Rights, Directive Principles of State Policy
and Fundamental Duties
Discuss how Indian Constitution has promoted the UN Declaration on
Human Rights
Identify the various international human rights instruments and describe
their application in India
Compare the human rights provisions in the Chinese Constitution with
those in the US Constitution
5.2 Critical Evaluation of Human Rights in the Constitution
of India
The Fundamental Rights, Directive Principles of State Policy and Fundamental
Duties in the Constitution of India lay down the fundamental obligations of the
State to its citizens and vice versa. These include a constitutional bill of rights
for government policy-making as well as the behaviour and conduct of citizens.
5.2.1 Fundamental Rights
The Indian Constitution, which came into effect in 1950, has provisions for specific
rights for the citizens of India. These rights are referred to as Fundamental Rights.
Fundamental Rights resemble the rights which have been given in the UDHR
and those which are a part of the International Covenant on Civil and Political
Rights (ICCPR). They are also very much similar to the rights listed in the
International Agreement on Social, Economic and Cultural Rights (ICESCR).
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The Part III Fundamental Rights of the Indian Constitution is a charter
of rights. It contains a pledge that grants civil rights to every Indian so that he can
live peacefully and pleasantly as a citizen of India. Fundamental Rights contain
individual rights which are universal to almost every liberal democracy, such as
equality before law, freedom of speech and expression, freedom of association
and peaceful assembly, freedom to practise religion and the right to constitutional
remedies for safeguarding civil rights through writs like habeas corpus. Those
who violate these rights are penalized according to the Indian Penal Code. These
punishments are subject to discretion of the judiciary. Fundamental Rights are
referred to as basic liberties of human beings which all citizens of India are
entitled to avail for a constructive and amicable personal growth. These rights
are commonly applicable to every citizen, irrespective of tribe/ethnic group, region
of origin, religious conviction, social background, caste/creed, colour or sex.
They are made mandatory by the court of law, subject to certain restrictions.
These rights have originated from various sources, including Englands Bill of
Rights (1689), the US Bill of Rights (1791) and Frances Declaration of the Rights
of Man (1789).
The Indian Constitution provides for the following six basic rights:
1. Right to equality, including equality before law, prohibition of discrimination
on grounds of religion, race, caste, sex or place of birth; equality of
opportunity in matters of employment; and abolition of untouchability and
titles.
2. Right to freedom, which involves freedom to speak and express; right to
assemble, associate or form unions; right to movement and residence;
and right to practise any profession or occupation .
3. Right against exploitation, which prohibits every category of enforced
labour, child labour and trafficking of human beings.
4. Right to freedom to practise ones religion, which includes freedom of
conscience and free profession; freedom of practice and propagation of
religion; liberty to manage religious matters, exemption from certain taxes;
and freedom from religious instructions in selected academic institutions.
5. Cultural and educational rights, which protect the right of citizens from all
walks of life to preserve their traditions, language or script. Right of
minorities empowers them to set up and run educational institutes
according to their preferences.
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6. Right to constitutional remedies, which gives the citizens the power to
move the Supreme Court of India for seeking enforcement, or to protect
their Fundamental Rights from being violated.
Note: Articles covering the Fundamental Rights are discussed in detail in
sub-section 5.3.1.
Evolution fundamental human rights
The evolution of constitutionally guaranteed fundamental human rights in India
may be summarized as follows:
Rowlatt Act (1919): The Rowlatt Act empowered the British government
and the police extensively, such that they could indefinitely arrest and detain
individuals, carry out searches without warrants and seize anything. They
could restrict public gatherings and censor the media and publications
extensively. The public opposed this Act and demanded a guarantee of
civil freedoms and restrictions on government power. Indians were
specifically affected by the independence of Ireland and the growth and
progress of the Irish constitution. In addition to this, the directive principles
of state policy in Irish constitution were considered as an inspiration by
Indians.
Nehru Commission (1928): The Nehru Commission (comprising
representatives of Indian political parties) recommended the fundamental
rights , representation for religious and ethnic minorities and restriction on
the powers of the government.
Karachi Congress (1931): In 1931, the Indian National Congress passed
resolutions to commit itself to defend fundamental civil rights, as well as
socio-economic rights like that of minimum wages and the abolition of
untouchability and serfdom.
Constituent Assembly (1947): When India achieved independence on
15 August 1947, the task of creating a constitution for the nation was taken
up by the Consti tuent Assembl y of Indi a (compri si ng el ected
representatives). A noteworthy change in that period, which deeply
influenced the members of the Constituent Assembly, was the adoption
by the United Nations General Assembly of the Universal Declaration of
Human Rights on 10 December 1948. The General Assembly ordered all
member states to incorporate these rights in their respective constitutions.
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Significane
The Constitution has fundamental rights, as part of it, since they are considered
to be very critical for the personal progress and development of all individuals
and for safeguarding their dignities. The people who wrote the Constitution
considered that democracy would be of no use if civil liberties, such as freedom
of speech and religion, were not acknowledged and protected by the State.

It
was their viewpoint that democracy in essence was a government by opinion,
and hence, the people of a democratic nation should be able to access and
avail the means to formulate public consensus. This was the purpose for the
constitution providing a guarantee to every citizen of India the freedom of speech
and expression and various other freedoms in the form of the fundamental rights.
Every individual, irrespective of race, religion, caste or sex, has been given
the right to move the Supreme Court and the High Courts for the purpose of
enforcing his/her fundamental rights. A grievance is not a necessity for any person
or group to do so. Poor people do not have the resources or are not able to
afford to do so. Hence, anyone has the option to commence litigation in the
court on their behalf. This facility has been introduced keeping public interest in
mind. This can be defined as public interest litigation. In a few of the cases,
High Court judges have taken their own initiatives, based on the reports in
newspapers.
The function of Fundamental Rights is not just to protect but also to prevent
widespread violation of human rights. Their focus is on the basic unity of India,
by assuring that every citizen is able to gain equal accessibility and use of the
same facilities, without any discrimination on the basis of background. There
are a few Fundamental Rights that are applicable to people of every nationality,
while others are applicable only to Indian citizens. Every person has the right to
life and personal liberty as equally as he has the right to freedom of religion. On
the other hand, freedom of expression and freedom of residence and settlement
in any region or territory of India are reserved only for Indian citizens, which
include non-resident citizens of India. The right to equality in issues related to
public employment cannot be bestowed upon Indian citizens who live abroad.
The prime goal of Fundamental Rights is to protect individuals from any
random actions of the State. However, there are certain rights which can be
enforced against individuals, for example, the Constitution abolishes
untouchability and also prohibits begging. These provisions suffice to check
both, the action of the state as well as the action of private individuals.
Nevertheless, these rights are not unconditional or beyond jurisdiction and are
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subject to rational limitations, as essential for protecting the overall progress. A
process of selective curtailing cannot be ruled out. The Supreme Court has
given a verdict that all provisions of the Constitution, inclusive of Fundamental
Rights, can undergo amendments. Nevertheless, the Parliament cannot
incorporate changes to the fundamental structure of the Constitution. Aspects
like secularism and democracy fall in this category. Since it is only possible to
alter Fundamental Rights by a constitutional amendment, including them acts
as a check not only on the executive branch but also on the Parliament and
state legislatures.
A state of national emergency adversely affects the Fundamental Rights.
In such a state, the rights conferred by Article 19 (freedoms of speech, assembly
and movement, etc.) continue to be suspended. Hence, in these circumstances,
the legislature may frame laws which oppose the rights listed in Article 19. In
addition to this, the President may by order suspension of the right to move
court for enforcing other rights as well.
Criticism
The Fundamental Rights have been criticized for many reasons.
The right to work; the right to economic assistance in case of unemployment
and old age; and similar rights should be enshrined as constitutional
guarantees to address issues of poverty and economic insecurity.
The right to freedom and personal liberty has a number of limiting clauses,
which have been criticized for failing to check the sanctioning of excessive
powers.
Fundamental Rights can be suspended during emergency. The Acts, such
as the Maintenance of Internal Security Act (MISA) and the National Security
Act (NSA), provide for excessive powers to the executive to fight internal
and cross-border terrorism and political violence. While implementing
these Acts, the government and its agencies often fail to defend civil rights.
The phrases security of State, public order and morality in MISA and
NSA are of wide implications. The meaning of phrases like reasonable
restrictions and the interest of public order have not been explicitly stated
in the constitution, and this ambiguity leads to unnecessary litigation.
The freedom to assemble peaceably and without arms is exercised, but
in some cases, these meetings are broken up by the police through the
use of non-fatal methods.
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5.2.2 Directive Principles of State Policy
The Directive Principles of State Policy contained in Part IV of the Constitution
were adopted from Ireland. These directives set out aims and objectives to be
taken up by the states in the governance of the country. They are the ideals
which the Union and State governments must keep in mind. They are in the
form of instructions/guidelines to the governments at the center as well as states.
Though these principles are non-justifiable, they are fundamental in the
governance of the country. They are incorporated in our Constitution in order to
provide economic justice and to avoid concentration of wealth in the hands of a
few people. Therefore, no government can afford to ignore them. They are, in
fact, the directives to the future governments to incorporate them in the decisions
and policies to be formulated by them.
Note: The various Articles covering the Directive Principles of State Policy are
discussed in detail under sub-section 5.3.2.
Fundamental object behind the Directive Principles
The founding fathers of the Constitution were keen on providing socio-economic
justice. With this aim, they wanted to include in the Constitution several rights,
which are included in Part III in the form of Fundamental Rights. But all the rights
could not be enlisted in the category of Fundamental Rights therefore Part IV
was included in the form of Directive Principles of State Policy. Under the Directive
Principles of State Policy, the state is directed to secure a social order for the
promotion of welfare of the people; to promote social and economic justice; to
provide just and humane conditions at work places; and to promote internal
peace and security. The idea of welfare state can be achieved if the states
endeavor to implement them with a high sense of moral duty.
5.2.3 Fundamental Duties
Fundamental duties were added under Part IV-A of the Constitution of India by
the 42nd Amendment in 1976. This part originally specified ten duties to followed
by the citizens of India, but later a new duty was added by the 86th Amendments
Act 2001, which added Clause (K) to Article 51-A.
Note: Article 51-A is discussed in detail under 5.3.3.
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Self-Assessment Questions
1. Fill in the blanks with appropriate words.
(a) resemble the rights which have been given in the Universal
Declaration of Human Rights.
(b) The Directive Principles of State Policy in the Constitution of India
have been adopted from.
2. State whether the following statements are true or false.
(a) The right to economic assistance in case of unemployment and old
age is a Fundamental Right.
(b) Fundamental Duties were added in the Constitution of India by the
44
th
Amendment.
5.3 Human Rights and Relevant Articles in Indian Constitution:
An Appraisal
As already mentioned, the Fundamental Rights are defined as the basic human
rights of all citizens. These rights apply irrespective of race, place of birth, religion,
caste, creed or gender. The Directive Principles of State Policy function as
guidelines for the government to frame laws . The Fundamental Duties are the
moral obligations of all citizens to help in promoting a spirit of patriotism and
upholding the unity and integrity of India.
5.3.1 Articles Covering the Fundamental Rights
Articles 12 to 35 of the Indian Constitution cover the Fundamental Rights of the
citizen of the country. According to Article 12, the term State, for the purposes
of the chapters on Fundamental Rights and Directive Principles, includes all
authorities within the territory of India. According to Article 13, the State shall not
make any law which takes away or abridges the rights conferred by the Part III of
the Constitution and any law made in contravention of this clause shall, to the
extent of the contravention, be void. Other Articles can be classified as follows:
1. Right to Equality: Articles 14, 15, 16, 17 and 18
Right to equality is an important right of the constitution. It is the principal foundation
of all other rights and liberties.
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General principle of right to equality before law (Article 14)
Article 14 embodies the general principle of right to equality before law. It says:
The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. Article 14 talks about equality
before law and equal protection of law. The equality before law does not mean
absolute equality among all the human beings. It means that every one shall be
treated as equals and not receive any special privileges on the ground of birth
creed, etc. According to Dr Jennings: Equality before law means that among
equals the law should be equal and should be equally administered, that like
should be treated alike. The right to sue and be sued, to prosecute and be
prosecuted for the same kind of action should be same for all citizens of full age
and understanding without distinction of race, religion, wealth, social status or
political influence. On the other hand, equal protection of law means that all the
persons should be treated alike in the similar circumstances.
The equal protection of law guaranteed by Article 14 does not mean that
all the laws should apply to all persons. It does not mean that every law must
have universal application for all persons or not by nature, attainment or
circumstances in the same position. The varying needs of the different classes
of persons often require separate treatment.
In case of Abdul Rehman v Pinto, 1951, the Andhra Pradesh high court
held that from the very nature of the society, there should be different laws in
different places and the legislature controls the policy and enacts laws in the
best interest of the safety and security of the state. The court further held that, in
fact identical treatment in unequal circumstances would amount to inequality.
So a reasonable classification is necessary for the progress of society. So Article
14 talks about equality and forbids class legislation but it does not forbid
classification. However the classification must not be arbitrary, artificial or evasive
and must be just and reasonable.
In case of E.P. Royappa v State of Tamil Nadu, 1974, the Supreme Court
of India held: Equality is a dynamic concept with many aspects and dimensions
and can not be cribbed, cabined or confined within traditional or doctrinaire
limits. From a positive point of view, equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one belong to the rule of law in a
republic while the other, to the whim and caprice of an absolute monarch. Where
an act is arbitrary it is implicit in it. That is unequal both according to political
logic and constitutional law and therefore violative of Article 14.
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In case of Maneka Gandi v Union of India, 1978, Bhagwati J. said : Equality
is dynamic concept with many aspects and dimensions and it cannot be
imprisoned within traditional and doctrinaire limits. Article 14 strikes at
arbitrariness in state action and ensures fairness and equality of treatment. The
principle of reasonableness, which legally as well as philosophically is an
essential element of equality or non-arbitrariness, pervades Article 14 like a
brooding omnipresence.
So, the doctrine of classification is just a judicial formula to determinine if
the legislative or executive action is arbitrary and hence constitutes denial of
equality. Article 14 is a guarantee against arbitrariness and if an action of state
is arbitrary it cannot be justified even on the basis of doctrine of classification.
So if an act of state is arbitrary it is unequal and therefore violative of Article 14.
Prohibition of discrimination on grounds of religion, race, caste, sex
or place of birth or any of them (Article 15)
According to Article 15:
(1) The State shall not discriminate against any citizen on grounds only
of religion, race, caste, sex, place of birth or any of them. (2) No citizen
shall, on grounds only of religion, race, caste, sex, place of birth or any
of them, be subject to any disability, liability, restriction or condition with
regard to (a) access to shops, public restaurants, hotels and places of
public entertainment; or (b) the use of wells, tanks, bathing ghats, roads
and places of public resort maintained wholly or partly out of State funds
or dedicated to the use of the general public.(3) Nothing in this Article
shall prevent the State from making any special provision for women and
children. (4) Nothing in this Article or in clause (2) of Article 29 shall
prevent the State from making any special provision for the advancement
of any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.(5) Nothing in this Article
or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from
making any special provision, by law, for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special provisions
relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other
than the minority educational institutions referred to in clause (1) of Article
30.
Article 15 provides for a particular application of the general principle let
down in Article 14. When the discrimination is based upon any of the ground
mentioned in Article 15, the reasonableness of classification will be tested under
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Article 14. The guarantee under Article 15 is available only to the citizens of India
and not every person whether citizen or not as in Article 14. Clause (1) of Article
15 directs the state not to discriminate against a citizen only on the ground of
religion, race, caste, sex, place of birth or any of them. The second clause
prohibits sate as well as citizens from making such discrimination on access to
shops, public restaurants, hotels and places of public entertainment or on the
use of wells, tanks, bathing ghats, roads and places of public resort which are
maintained wholly or partly out of State funds or which dedicated to the use of
the general public. Third clause empowers the sate to make special provisions
for the benefit of women and children. Fourth clause which was added by
Constitution (First Amendment) Act, 1951 is an exception to Article 15 and 29(2)
and empowers the state to make special provision for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes. Article 15 was once again amended in 2005
by the Constitution (Ninety-third Amendment) Act, 2005, to add clause 5. Under
clause 5 the state is enabled for making any special provisions relating to the
admission to educational institutions including private educational institutions,
whether aided or unaided by the State, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the
Scheduled Tribes, other than the minority educational institutions referred to in
clause (1) of Article 30.
Equality of opportunity in matters of public employment (Article 16)
Article 16 of the constitution talks about equality of opportunity in matters of
public employment. It says that,
(1) there shall be equality of opportunity for all citizens in matters relating
to employment or appointment to any office under the State. (2) No citizen
shall, on grounds only of religion, race, caste, sex, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against
in respect of, any employment or office under the State. (3) Nothing in
this Article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office
under the Government of, or any local or other authority within, a State or
Union territory, any requirement as to residence within that State or Union
territory prior to such employment or appointment. (4) Nothing in this
Article shall prevent the State from making any provision for the reservation
of appointments or posts in favour of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the
services under the State. (4A) Nothing in this Article shall prevent the
State from making any provision for reservation 3[in matters of promotion,
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with consequential seniority, to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and the
Scheduled Tribes which, in the opinion of the State, are not adequately
represented in the services under the State.(4B) Nothing in this Article
shall prevent the State from considering any unfilled vacancies of a year
which are reserved for being filled up in that year in accordance with any
provision for reservation made under clause (4) or clause (4A) as a
separate class of vacancies to be filled up in any succeeding year or
years and such class of vacancies shall not be considered together with
the vacancies of the year in which they are being filled up for determining
the ceiling of fifty per cent. reservation on total number of vacancies of
that year. (5) Nothing in this Article shall affect the operation of any law
which provides that the incumbent of an office in connection with the
affairs of any religious or denominational institution or any member of the
governing body thereof shall be a person professing a particular religion
or belonging to a particular denomination.
Article 16 provides equality of opportunity for all citizens in matters relating
to employment or appointment to any office under the State. It prohibits the state
from making any discrimination on the grounds of only of religion, race, caste,
sex, descent, place of birth, residence or any of them, in respect of any
employment or office under the State. Article 16 (1) and (2) applies only in respect
of employment or office under the state. Clauses (3), (4), (4A), (4B), (5) provide
exception to the general rule of equality of opportunity. Clause 4 enables the
State for making any provision for the reservation of appointments or posts in
favour of any backward class of citizens which is not adequately represented in
the services under the State, in the opinion of the State. Clause (4A) enables the
State from making any provision for reservation in matters of promotion, in favour
of the Scheduled Castes and the Scheduled Tribes which, are not adequately
represented in the services under the State in the opinion of the State. Article 16
was amended in 2000 by the Constitution (Eighty-first Amendment) Act, 2000,
and clause 4B was inserted seeks to end 50% limit for Scheduled Castes, the
Scheduled Tribe and other backward classes in backlog vacancies which could
not be filled up due to the non-availability of eligible candidates of these categories
in the previous year or years. Clause (5) saves a law from the operation of
clauses (1) and (2) which provides for the incumbent of any religious qualification
for appointment and the state is required to appoint a person professing a
particular religion or belonging to a particular denomination for being the
incumbent of an office in connection with the affairs of any religious or
denominational institution or any member of the governing body.
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Article 16 deals with the employment and appointment under the state
and does not deal with the discrimination like Article 15. Article 16 guarantees
equality of opportunity in matter of appointment in state services. It does not
prevent the state from prescribing the necessary qualifications and selective
tests for recruitment of government services. The qualification prescribed may
besides mental excellence include physical fitness sense of discipline , moral
integrity and loyalty to the state.
Abolition of untouchability (Artilce 17)
Article 17 provides that, Untouchability is abolished and its practice in any form
is forbidden. The enforcement of any disability arising out of Untouchability shall
be an offence punishable in accordance with law.
Article 17 abolishes untouchability and forbids its practice in any form. If
untouchability is practiced then it is an offense and punishable in accordance
with the law. The Parliament has enacted Untouchability (Offences) Act, 1955
amended by Untouchability (Offences) Amendment Act, 1976 in order to make
the law more stringent to remove untouchability from the society.
Abolition of titles (Article18)
According to Article 18 :
(1) No title, not being a military or academic distinction, shall be conferred by
the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any office of
profit or trust under the State, accept without the consent of the President
any title from any foreign State.
(4) No person holding any office of profit or trust under the State shall, without
the consent of the President, accept any present, emolument, or office of
any kind from or under any foreign State.
Article 18 prohibits the state from conferring titles to anybody whether
citizen or non-citizen. However, military and academic distinctions are exempted
from the prohibition. This Article not only prohibits the sate from conferring the
titles but also prohibits the citizens from accepting title form any foreign state.
Constitution, under Article 18, also prohibits anyone who is not a citizen of India
who is holding any office of profit or trust under the State to accept any title from
any foreign State without the consent of the President.
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2. Right to Freedom: Articles 19, 20, 21 and 22
The Constitution of India contains the right to freedom, given in articles 19, 20,
21 and 22, with the view of guaranteeing individual rights that were considered
vital by the framers of the constitution.
Protection of certain rights regarding freedom of speech, etc. (Article
19)
Article 19 provides:
(1) All citizens shall have the right (a) to freedom of speech and
expression; (b) to assemble peaceably and without arms; (c) to form
associations or unions; (d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; (g) to practice
any profession, or to carry on any occupation, trade or business. (2)
Nothing in sub-clause (a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such
law imposes reasonable restrictions on the exercise of the right conferred
by the said sub-clause in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States,
public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence. (3) Nothing in sub-clause (b) of
the said clause shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law imposing, in the
interests of 4[the sovereignty and integrity of India or] public order,
reasonable restrictions on the exercise of the right conferred by the said
sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect
the operation of any existing law in so far as it imposes, or prevent the
State from making any law imposing, in the interests of 4[the sovereignty
and Protection of certain rights regarding freedom of speech, etc. (5)
Nothing in 1[sub-clauses (d) and (e)] of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the State
from making any law imposing, reasonable restrictions on the exercise
of any of the rights conferred by the said sub-clauses either in the interests
of the general public or for the protection of the interests of any Scheduled
Tribe. (6) Nothing in sub-clause (g) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the State
from making any law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right conferred by the said
sub-clause, and, in particular, nothing in the said sub-clause shall affect
the operation of any existing law in so far as it relates to, or prevent the
State from making any law relating to, (i) the professional or technical
qualifications necessary for practicing any profession or carrying on any
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occupation, trade or business, or (ii) the carrying on by the State, or by
a corporation owned or controlled by the State, of any trade, business,
industry or service, whether to the exclusion, complete or partial, of citizens
or otherwise.
The rights granted under Article 19 are available only to the citizen of India.
Article 19 guarantees following six fundamental freedoms to the citizens of India:
(i) Freedom of speech and expression
(ii) Freedom of Assembly
(iii) Freedom to form Association
(iv) Freedom of Movement
(v) Freedom to reside and to settle
(vi) Freedom of profession, occupation, trade or business.
However, these six freedoms are not absolute and reasonable restrictions
can be imposed upon these freedoms. The restrictions to restrain these freedoms
cannot be arbitrary therefore a restriction to be constitutionally valid must fulfill
these two tests:
(i) The restriction must be for the purpose mentioned in clauses 2 to 6 of
Article 19.
(ii) The restriction must be reasonable.
Test of reasonable restriction: The restrictions on the rights under Article 19
can only be imposed by law and not executive or departmental instructions.
Reasonable restriction under Article 19 (6) means that the restriction imposed
on a person in the enjoyment of his right should not be arbitrary or of an excessive
nature beyond what is required in the interest of public. In case of Chintamani
Rao v State of M. P.,1951, the Supreme Court of India held that a law which
arbitrarily or excessively invades the rights if a person cannot be said to contain
the quality of reasonableness and unless it strikes a proper balance between
the right guaranteed under Article 19(1) and the social control in 19(6), it must
be held to be wanting in quality. In this the Supreme Court has down the following
guidelines for determining the reasonableness of restrictions:
(1) It is the courts and not the legislature which has to judge the finally whether
a restriction is reasonable or not.
(2) The term reasonable restriction in Article 19(6) implies that the restrictions
imposed on a person in the enjoyment of his right should not be arbitrary
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or of an excessive nature beyond what is supposed to be in the interest of
public. The word reasonable means intelligent care and deliberation i.e.,
the choice which reason dictates.
(3) There is no exact standard or general pattern of reasonableness that can
be laid down for all cases. Each case is to be judged on its own merits.
The standard varies with the nature of the rights infringed, the underlying
purpose of the restriction imposed, the extent and the urgency of the evil
sought to be remedied, the disproportion of the imposition, and the
prevailing conditions at the time.
In case of N.B Khare v State of Punjab, 1960, the Supreme Court held
that the restriction must be reasonable from the substantial as well as procedural
standpoint.
(i) Freedom of speech and expression [(Articles 19(1)(a) and 19 (2)]
Freedom of speech and expression is indispensable. Freedom of speech and
expression means to express one own opinion freely by words of mouth, writing,
printing, pictures or by any other means. The freedom of speech and expression
includes the expression of one idea through any communicable medium or visible
representation. In case of Romesh Thaper v State of Madras, 1950, the Supreme
Court observed : Freedom of speech lay the foundation of all democratic
organizations, for without free political discussion no public education so essential
for the proper functioning of the process of popular government is possible.
Freedom of speech and expression also includes freedom of press. The
Supreme Court, in the Romesh Thaper case, said:
The expression connotes publication and thus the freedom of press is
included in this category. Free propagation of ideas is the necessary objective
and this may be done through the press. The freedom of propagation of ideas is
secured by freedom of circulation. Liberty of circulation is essential to that freedom
as the liberty of publication.
The freedom of speech and expression helps the individuals in attaining
the self fulfillment and assist in the discovery of truth. It strengthens the capacity
of individuals to participate in decision making and also provides a mechanism
by which it would be possible to establish a reasonable balance between the
stability and social change.
The freedom of speech and expression includes right to propagate ones
views: the Supreme Court examined the scope of freedom of speech and
expression in Life Insurance Corporation of India v Manubhai D. Shah(1992)
and observed: The freedom of speech and expression must be broadly construed
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to include the freedom to circulate ones views by words of mouth or in writing or
through audio visual instrumentalities. It therefore includes the right to propagate
ones views through any other communication channel, e.g. the radio and the
television. Every citizen of this country therefore has the right to air his views
through the printing and o electronic media subject to permissible restrictions
imposed under Article 19 (2) of the Constitution.
The freedom of speech and expression includes freedom to silence: The
supreme court of India has held in National Anthem case that the freedom of
speech and expression also includes the freedom to silence.
In this case three children belonging to Jehovah were expelled from the
school for refusing to sing the national anthem. The circular issued by the director
of Public instruction Kerala had made it obligatory for the students to sing national
anthem in the school. In this case the children stood up respectfully when the
national anthem being sung at their school but they did not join in singing it. They
refused to sing the national anthem as according to them it was against their
religious belief which does not permit them to join any ritual except their prayer
to Jehovah, their god. They challenged the validity of their expulsion before the
Kerala High Court which upheld their expulsion as valid on the ground that it was
their fundamental duty to sing the national anthem. On appeal the Supreme
Court held that there was no law under which their fundamental right under
Article 19(1) (a) could be curtailed. The right under Article 19(1)(a) can only be
regulated by law and on the grounds mentioned in the Constitution and not by
executive instructions. They did not commit any offence under the Prevention of
Insults National Honour Act, 1971, because they stood up respectfully when the
national anthem was being sung. Accordingly, it was held that the childrens
expulsion from the school was a violation of their fundamental right under Article
19(1) (a) which also includes the freedom of silence. The judgment of the will
have far reaching consequences. It is likely to be interpreted as a license by all
to disregard the national anthem which is the symbol of our national unity in the
name of religion. Freedom of speech and expression has nothing to do with a
person refusing to sing the national anthem.
Commercial advertisement: Commercial advertisement is also a part of
freedom of speech and expression. In case of Tata Press Ltd. v Mahanagar
Telephone Nigam Ltd. (1995), the Supreme Court held the commercial speech
(advertisement) is a part of the freedom of speech and expression granted under
Article 19(1)(a) of the Constitution. It can only be restricted on the grounds
specified in Clause 2 of Article 19, such as in the interests of the sovereignty
and integrity of India, the security of the state, friendly relations with foreign states,
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public order, decency or morality, or in relation to contempt of court, defamation
or incitement to an offence. The court made it clear that the commercial
advertisements which are deceptive, unfair, misleading, and untruthful could be
regulated by the government. Commercial speech cannot be denied the
protection of Article 19 (1)(a) of the Constitution merely because the same are
issued by businessmen.
Freedom of the press: Freedom of the Press is also included under Article
19(1)(a) of the Constitution. In case of Indian Express News Papers v Union of
India (1985), the Supreme Court speaking about the freedom of press observed:
The expression freedom of the press has not been used in 19, but it is
comprehended with in 19(1)(a). The expression means freedom from
interference, from authority, which would have the effect of interference with the
content and circulations of newspapers. There cannot be any interference with
that freedom in the name of public interest. The purpose of the press is to advance
the public interest by publishing facts and opinions without which a democratic
electorate cannot make responsible judgments. Freedom of press is the heart
of social and political intercourse. It is the primary duty of the courts to uphold
the freedom of the press and invalidate all laws or administrative actions which
interfere with it contrary to the constitutional mandate.
In another case Printers (Mysore) Ltd. v Assistant Commercial Tax Officer
(1994), the Supreme Court held: No sales tax can be imposed on sale of
newspapers in the country. However, this does not mean that press is immune
either from taxation or from general law relating to industrial relations or from the
state regulation of condition of service of its employees. The prohibition is upon
the imposition of any restriction to disseminate information and to the circulation
of newspaper. The court further clarifies further: Freedom of press stands at
the higher footing than other enterprises.
In Sakal Papers Ltd. v Union of India (1962), the Supreme Court of India
held that the right of freedom of speech and expression cannot be taken away
with the object of placing restrictions on the business activity of a citizen. Freedom
of speech can only be retracted on the grounds mentioned in Clause (2) of
Article 19. It cannot like the freedom to carryon business, be curtailed in the
interests of the general public.
In Bennet Colman and Co. v Union of India (1973), the Supreme Court
believed: Freedom of the press is both quantitative and qualitative. Freedom lies
both in circulation and in content. The news print policy which permits news
papers to increase circulation by reducing the number of pages, page area and
periodicity, prohibits them to increase the number of pages page area and
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periodicity by reducing circulation. These restrictions restrict the newspapers in
adjusting their page number and circulation.
Odyssey Communications Pvt. Ltd. v Lok Vidayan Sanghatana (1988) ,
it was held that the rights of a citizen to exhibit films on the Doordarshan, on the
terms and conditions imposed by the Doordarshan is part of the fundamental
right of freedom of speech and expression guaranteed under Article 19(1) (a),
which can be curtailed only on the grounds mentioned in Article 19(2).
Grounds of restrictions: Clause (2) Article 19 contains the grounds on which
restrictions on the freedom of speech and expression can be imposed:
The security of the state
Friendly relations with foreign states
Public order
Decency or morality
Contempt of court,
Defamation
Incitement to an offence
The sovereignty and integrity of India
The security of the state: Under Article 19(2) reasonable restriction can
be imposed on freedom of speech and expression on the ground of the
security of the State. In case of Romesh Thaper v State of Madras (1950),
Supreme Court held that the term security of state refers only to serious
insurrection and not ordinary breaches of public order or public safety.
Friendly relations with foreign states: This ground was added by
Constitution (1st Amendment) Act, 1951 to prohibit the unrestrained
malicious propaganda against a foreign friendly state which may jeopardize
the good relations between India and that friendly state.
Public order: This ground was added by Constitution (1st Amendment)
Act, 1951 to meet the situation arose from the supreme courts decision
in Romesh Thaper case in which the supreme court held that public order
is an expression of wide connotation and signifies that the state of tranquility
which prevails among the member of political society as a result of internal
regulations enforced by the government.
Decency or morality: Decency or morality is another ground on which a
reasonable restriction can be imposed upon the exercise of the right of
freedom of speech and expression. Indecency under the Constitution of
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India is identical with the word obscenity under English law. The IPC
provides for restriction on the freedom of speech and expression in the
interest of decency and morality. These sections prohibit the sale or
distribution or exhibition of the words etc. in public places. But IPC does
not lay down any test for determination of obscenity. In case of Ranjit D.
Udeshi v State of Maharashtra (1965), the Supreme Court accepted the
test laid down in English case of R. v Hicklin to judge the obscenity of a
matter.
Contempt of court: Another ground on which the restriction on freedom
of speech and expression can be imposed is on the ground of contempt
of court.
Section 2 of the Contempt of Court Act, 1971 defines contempt of court to
mean civil contempt or criminal contempt.
Section 2 (b) of the Act says: Civil contempt means willful disobedience
to any judgment, decree, direction, order, writ or other process of a court
or willful breach of an undertaking given to a court.
Section 2(c) says: Criminal contempt means the publication (whether by
words, spoken or written, or by signs, or by visible representation, or
otherwise) of any matter or the doing of any other act whatsoever which
(i) Scandalizes or tends to scandalize, or lowers or tends to lower the
authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of
any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct,
the administration of justice in any other manner.
However the following acts do not amount to contempt of court:
(i) Innocent publication and distribution of nay matter;
(ii) Publication of fair and accurate report of judicial proceedings;
(iii) Fair criticism of judicial act;
(iv) Complain against presiding officer made in good faith.
(v) Publication of fair information relating to proceeding in chambers or
in camera.
Defamation: Defamation is a ground to restrict the freedom of speech
and expression. Any statement which injures the reputation of someone
amounts to deflation of that person. Section 499 contains criminal law
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regarding defamation. An action under law of torts can also be brought for
defamation.
Incitement to an offence: This ground by Constitution (1st Amendment)
Act, 1951 to impose a reasonable restriction on the freedom of speech
and expression.
Integrity and sovereignty of India: This ground imposing restriction on
the freedom of speech and expression was added by the Constitution
(Sixteenth Amendment) Act, 1963.
(ii) Freedom of Assembly
Article 19(1) (b) guarantees to all citizens of India the right to assemble
peaceably and without arms. The right of assembly includes the right to hold
meetings and to take out processions. This right is however subject to some
restrictions which are as follows:
The assembly must be peaceable.
It must be unarmed.
Reasonable restrictions can be imposed under clause (3) of Article 19.
The right of assembly is implied in the very idea of the democratic
government. The right of assembly thus includes right to hold meetings, and to
take processions. This right, like other rights is not absolute but restrictive. The
assembly must be non-violent and must not cause any breach of public peace.
If the assembly is disorderly or riotous then it is not protected under Article 19(1)
(b) and reasonable restrictions may be imposed under clause (3) of Article 19 in
the interests of sovereignty and integrity of India or public order.
If an assembly becomes unlawful it can be dispersed. Chapter VIII of the
Indian Penal Code lays down the conditions when an assembly becomes
unlawful. Under section 141 of the Indian Penal Code, an assembly of five or
more persons becomes an unlawful assembly if the common object of the
persons composing assembly is:
(a) To resist the execution of any law or legal process;
(b) To commit any mischief or criminal trespass;
(c) Obtaining possession of any property by force;
(d) To compel a person to do what he is not legally bound to do or omit which
he is legally entitled to do;
(e) To overawe the government by means of criminal force or show of criminal
force or any public servant in the exercise of his lawful powers.
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An assembly which was not unlawful when assembled may subsequently
become unlawful if it becomes violent or is likely to result in disturbance.
(iii) Freedom to form Association [Article 19(1)(c) and 19(4)]
Article 19(1) of the Constitution of India guarantees to all the citizens of India the
right to form associations and unions. Under clause (4) of Article 19, however,
the state may by law impose reasonable restriction on these rights in the interest
of public order or morality or the sovereignty and integrity of India.
The right guaranteed is not merely the right to form association but also to
continue with the association as such. The freedom to form association implies
also the freedom to form or not ot form, to join or not join, an association or
union.
Restrictions on the freedom of association: the right of association, like other
individual freedom is not unrestricted. Clause (4) of Article 19 empowers the
state to impose reasonable restrictions on the right of freedom of association
and union in the interest of public order or morality or sovereignty or integrity
of India. It saves existing laws in so far as they are not inconsistent with
Fundamental Rights of association.
(iv) Freedom of Movement [Article 19(1)(d) and 19(5)]
Article 19(1) (d) guarantees all citizens of India to move freely throughout the
territory of India. This right is subject to certain restrictions mentioned under
Article 19(5) which provide restriction on the ground of in the interest of public
and in the interest of any schedule tribe.
(v) Freedom of Residence [Article 19(1)(e) and 19(5)]
According to Article 19(1) (e) every citizen of India has the right to reside and
settle in any part of the territory of India. This right is subject to certain restrictions
mentioned under Article 19(5) which provide restriction on the ground of in the
interest of public and in the interest of any schedule tribe. Article 19(1) (e).The
object of the clause (6) is to remove internal barriers within India or any of its
parts.
(vi) Freedom of Profession, Occupation, Trade or Business
(Article 19 (1)(g) and 19(6)
Article 19(1) (g) provides freedom to practice any profession, or to carry on any
occupation, trade or business. Article 19(6) imposes reasonable restrictions on
this freedom on the grounds of (i) the interests of the general public, (ii) the
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professional or technical qualifications necessary for practising any profession
or carrying on any occupation, trade or business, or (iii) the carrying on by the
State, or by a corporation owned or controlled by the State, of any trade, business,
industry or service, whether to the exclusion, complete or partial, of citizens or
otherwise.
Protection in respect of conviction for offenses (Article 20)
Article 20 of the Indian Constitution provides the following safeguards to the
persons accused of crimes:
(a) Ex-post facto law (Clause 1, Article 20)
(b) Double jeopardy (Clause 2, Article 20)
(c) Prohibition against Self-incrimination (Clause 3, Article 20)
(a) Protection against Ex-post facto law: Article 20 (1) says: (1) No person
shall be convicted of any offence except for violation of a law in force at
the time of the commission of the Act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence. Article
20(1) imposes a limitation on the law making power of the legislature.
Ordinarily a legislature can make prospective as well as retrospective
laws; clause (1) of Article 20 prohibits the legislature to make retrospective
criminal laws. However it does not prohibit the imposition of civil liability
retrospective i.e. with effect from past date. So a tax can be imposed
retrospectively.
An ex-post facto law is a law which imposes penalties retrospectively, i.e
on acts already done and increases the penalty for such acts. The first
part of clause (1) provides that, No person shall be convicted of any offence
except for violation of a law in force at the time of the commission of the
Act charged as an offence. This means that if an act is not an offence at
the date of its commission it can not be an offense at the date subsequent
to its commission.
The second part of Clause (1) protects a person form a a penalty greater
than that which might have been inflicted under the law in force at the time
of the commission of the offence. In Kedar Nath v State of West Bengal
(1953), the accused committed an offense in 1947 which under the Act
then in force was punishable imprisonment or fine or both. The Act was
amended in 1949 which enhances the punishment for the same offense
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by an additional fine equivalent to the amount of money procured by the
accused through the offence. The Supreme Court ruled: The enhanced
punishment could not be applicable to the act committed by the accused
in 1947. Giving this ruling, the apex court set aside the additional fine
imposed by the amended Act.
However, the accused can take advantage of the beneficial provisions of
the ex-post facto laws. In Ratan Lal v State of Punjab, AIR1965SC444, a
boy of sixteen year old was convicted for committing an offense of house
trespass and outraging the modesty of a girl aged seven years. The
magistrate sentenced him for six months rigorous imprisonment and also
imposed fine. After the judgment of the magistrate, the Probation of
Offenders Act, 1958 came into force. It provided that a person below 21
years of age should not ordinarily be sentenced to imprisonment. The
Supreme Court held that the rule of beneficial interpretation required that
ex-post facto law could be applied to reduce the punishment. So an ex-
post facto law which is beneficial to the accused is not prohibited by Clause
(1) of Article 20.
(b) Double jeopardy (Clause 2, Article 20): The constitution under Article
20(2) says that, (2) No person shall be prosecuted and punished for the
same offence more than once. This clause embodies the common law
rule of nemo debet vis vexari which mean that no man should be put
twice in peril for the same offence if he is prosecuted again for the same
offence for which he has already been prosecuted , he can take complete
defense of his for mere acquittal or conviction. In Maqbool Hussain v State
of Bombay (1953), the appellant brought some gold into India and he did
not declare that he had brought gold with him to the customs authorities
on the airport. The customs authorities confiscated the gold under the
Sea Customs Act. He was later charged for having committed an offense
under the Foreign Exchange Regulations Act. The appellant contended
that, the second prosecution was in violation of Article 20(2) as it was for
the same offense. The court held that Sea Custom Authorities were not a
court or judicial tribunal and the adjudging of confiscation under the Sea
Customs Act did not constitute a judgment of judicial character necessary
to take the plea of the double jeopardy, hence the prosecution under the
Foreign Exchange Regulation Act is not barred.
Article 20(2) will have no application where judgment is not for the same
offense. Thus if the offenses are distinct the rule of double jeopardy will
not apply. Clause (2) of Article 20 does not apply where the person is
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prosecuted and punished for the second time and subsequent proceeding
is mere continuation of the previous proceeding, example in the case of
an appeal against acquittal.
(c) Protection against self-incrimination [Article 20(3)]: Article 20(3)
provides that No person accused of any offence shall be compelled to be
a witness against himself. The fundamental rule of criminal jurisprudence
against self-incrimination has been raised to a rule of constitutional law in
Article 20 (3). This guarantee extends to any person accused of an offense
and prohibits all kind of compulsions to make him a witness against
himself. In case of M.P. Sharma v Satish Chandra (1954), the Supreme
Court observed that this right embodies the following essentials:
(i) It is a right pertaining to a person who is accused of an offense.
(ii) It is a protection against compulsion to be a witness.
(iii) It is a protection against such compulsion relating to is giving evidence
against him.
Protection of life and personal liberty (Article 21)
Article 21 of the Constitution says: No person shall be deprived of his life or
personal liberty except according to procedure established by law. prior to Maneka
Gandhis decision, Article 21 guaranteed the right to life and personal liberty to
citizens only against the arbitrary actions of the executive, and not from legislative
actions. The sate could interfere with the liberty of citizens if it could support its
actions by a valid law. But after the Maneka Gandhis decision, Article 21 now
protects the right of life and personal liberty of citizens not only from the executive
actions but also from the legislative actions. A person can be deprived of his life
and personal liberty if two conditions are complied with, first, there must be a
law and second there must be a procedure prescribed by that law, provided that
the procedure is just, fair and reasonable. The right guaranteed in Article 21 is
available to citizens as well as non-citizens.
In case of A.K. Gopalan v Union of India (1950), the Supreme Court held
that the personal liberty in Article 21 means nothing more than the liberty of the
physical body, that is, freedom form arrest and detention without the authority of
law. In the Maneka Gandhis case, the Supreme Court overruled the Gopalanss
case and widened the scope of the words personal liberty considerably. Bhagwati
J. in this case observed: The expression personal liberty in Article 21 is of
widest amplitude and it covers a variety of rights which go to constitute the
personal liberty of man and some of them have raised to the status of distinct
Fundamental Rights and given additional protection under 19. He further said
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that the attempt of the court should be to expand the reach and ambit of
Fundamental Rights rather than to attenuate there meaning and content by a
process of judicial construction. The court laid down great stress on the
procedural safeguards. The procedure must satisfy the requirements of natural
justice i.e., it must be just fair and reasonable.
In Kharak Singh v State of U.P. (1963), it was held that the expression life
was not limited to bodily restraint or confinement to prison only but something
more than animal existence.
Right to life also include right to travel abroad. In Satwant Singh v Assistant
Passport Officer, New Delhi (1967), the Supreme Court held that the right to
travel abroad is a part of a persons personal liberty within the meaning of Article
21.
Procedure established by law: In Maneka Gandhis case the Supreme Court
held that mere prescription of some kind of procedure is not enough to comply
with the mandate of Article 21. The procedure prescribed by law has to be fair,
just and reasonable, not fanciful, oppressive or arbitrary; otherwise it should not
be on procedure at all and all the requirements of Article 21 would not be satisfied.
Right to live with human dignity: Right to life also include right to live with
human dignity. In Maneka Gandhis case the Supreme Court held that the right
to live is not merely confined to physical existence but it includes within its ambit
the right to live with human dignity. The Supreme Court has elaborated the same
view in various other cases. In Francis Coralie v Union Territory of Delhi (1978),
the Supreme Court ruled:
The right to live is not restricted to mere animal existence. It means something
more than just physical survival. The court said that, the right to live is not confined
to the protection of any faculty or limb through which life is enjoyed or soul
communicates with the outside world but it also 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 and facilities for reading, writing
and expressing ourselves in diverse form, freely moving about and mixing and
commingling with fellow human beings.
In another case of Peoples Union for Democratic Rights v Union of India,
(1982), the Supreme Court ruled: The non-payment of minimum wages to the
workers employed in various Asiad Projects in Delhi was a denial to them of
their right to live human dignity and violative of Article 21 of the Constitution. In
Chandra Raja Kumari v Police Commissioner Hyderabad (1998), the Supreme
Court held that the right to live includes right to live with human dignity or decency.
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In State of Maharashtra v Chnadrabhan (1983), the Supreme Court set
aside a provision of Bombay Civil Services Rule, 1959, which provided for
payment of only a nominal subsistence allowance of Re 1 per month to a
suspended government servant upon his conviction during the pendency of appeal
as unconstitutional. The apex court considered it violative of Article 21 of the
Constitution.
Right to livelihood: Right to life includes right to livelihood. In case of Olga
Tellis v Bombay Municipal Corporation (1986), popularly known as Pavement
Dwellers Case, the Supreme Court held that the word life under Article 21 includes
the right to livelihood also. The court said:
It does not mean merely that the life cannot be extinguished or taken
away as for example by the imposition and execution of death sentence,
except according to procedure established by law. That is but one aspect
of right to life. And equally important facet of that right is the right to
livelihood because no person can live without the means of livelihood. If
the right to livelihood is not treated as a part of the constitutional right to
life, the easiest ways of depriving a person of his right to life would be to
deprive him of his means of livelihood. In view of the fact that Article 39(a)
and 41 require the state to secure to the citizen an adequate means of
livelihood and the right to work, therefore the right to livelihood cannot be
excluded from right to life.
In the case of D.K. Yadav v JMA Industries the Supreme Court held that
the right to life enshrined under Article 21 includes the right to livelihood therefore
termination of the service of a worker without giving him reasonable opportunity
of being heard is unjust, arbitrary and illegal.
Right to privacy: The Supreme Court of India has held in various cases that
right to privacy is a part of right to life. In case of R. Rajagopal v State of Tamil
Nadu popularly known as Auto Shanker Case. The Supreme Court held that
right to privacy or right to be let alone is guaranteed by Article 21 of the Constitution.
A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood etc. No one can publish anything concerning the above
matters without his consent truthful or otherwise. If he does so he would be
violating the rights of the person concerned and would be liable in action for
damages. In another case Mr. X v Hospital Z10 the Supreme Court held that
although the right to privacy is a fundamental right under Article 21 of the
Constitution but is not an absolute and restrictions can be imposed on it for the
prevention of crime, disorder or protection of health or morals or protection of
rights and freedoms of others. The Supreme Court further held that by disclosing
that the appellant was suffering from AIDS the doctors had not violated the right
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to privacy of the appellant guaranteed under Article 21. The Court held that
although the right to privacy is a fundamental right under Article 21, but it is not
an absolute right and retractions can be imposed on it. The right to marry is an
essential element of right to privacy but is not absolute. Marriage is the sacred
union, legally permissible of two healthy bodies of opposite sexes. Every system
of matrimonial law provides that if person is suffering from venereal disease in a
communicable form, it will be open to the other partner in the marriage to seek
divorce. If a person is suffering form that disease even prior to the marriage, he
has no right to marry so long as he is not fully cured of the disease.
Right to Die (not a fundamental right under Article 21): The question whether
the right to die is included in Article 21 of the constitution came for consideration
for the first time before the Bombay High Court in State of Maharashtra v Maruty
Sripati Dubal the Bombay high court held that the right to life guaranteed under
Article 21 includes the right to die, and consequently the court struck down section
309 of IPC which provides punishment for attempt to commit suicide by a person
as unconstitutional.
On the other hand, the Andhra Pradesh High Court in Chenna Jagadeeswar
v State of A.P., held that the right to die is not a fundamental right within the
meaning of Article 21 and hence section 309 is not unconstitutional.
In P. Ratinam v Union of India (1994), the Supreme Court held that section
309 of IPC is violative of Article 21 and hence it is void. A person can not be
forced to enjoy right to life to his detriment, disadvantage or disliking. The court
said that, section 309 of the IPC was a cruel and irrational provision.
In Gian Kaur v State of Punjab (1996), a five-judge constitutional bench of
the supreme court has overruled the P. Ratinams case and held that the right to
life under Article 21 of the constitution does not include right to die or right to be
killed. The right to die is inherently inconsistent with the right to life as is death
with life. The court said that, any aspect of life which makes it dignified may be
read into Article 21 of the constitution but not that which extinguishes it and is,
therefore inconsistent with the continued existence of life resulting in effacing
the right itself. The right to life is natural right embodied in Article 21 but suicide
is an unnatural termination or extinction of life and incompatible and inconsistent
with the concept of right to life.
Protection of Ecology and Environmental Pollution
In rural litigation and Entitlement Kendra v State of UP (1985), the court ordered
the closure of certain lime stone quarries on the ground that there ere serious
deficiencies regarding safety and hazardous in them.
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In Sriram Food and Fertilizers Case the Supreme Court directed the
company manufacturing hazardous and lethal chemicals and gases posing
danger to health and life of workman and people living in its neighborhood, to
take all necessary safety measures before reopening the plant.
In M.C. Mehta v Union of India (1987), the Supreme Court ordered the
closure of tanneries at Jajman near Kanpur polluting the River Ganga.
In case of Vellore Citizens v Welfare Forum Union of India (1996), the
Supreme Court held that industries though are of vital importance to the countries
development , but they cannot be allowed to destroy the ecology, degrade the
environment and pose a health hazard and cannot be permitted to continue
their operation unless they setup pollution control devices. Kuldip Singh J. said
that, principle of sustainable development has to be adopted as a balancing
concept between ecology and development. Precautionary principle and polluter
pays principle are essential feature of sustainable development and has to be
adopted.
Right to Education
Right to education has become a Fundamental Right under Article 21A of the
Constitution. This Article has been added by the Constitution (86th Amendment)
Act, 2001.
In case of Mohini Jain v State of Karnataka (1992), popularly known as
Captivation Fee case, the Supreme Sourt has held that right to education is
fundamental right under Article 21 of the constitution which cannot be denied to
a citizen by charging higher fee known as the captivation fee. The right education
flows directly from right to life.
Protection against arrest and detention in certain cases (Article 22)
Under Article 22:
(1) No person who is arrested shall be detained in custody without being
informed, as soon as may not be, of the grounds for such arrest nor
shall he be denied the right to consult, and to be defended by, a legal
practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of
such arrest excluding the time necessary for the journey from the place
of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a
magistrate.
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(3) Nothing in clauses (1) and (2) shall apply- (a) to any person who for the
time being is an enemy alien; or (b) to any person who is arrested or
detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of
a person for a longer period than three months unless-(a) an Advisory
Board consisting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the expiration
of the said period of three months that there is in its opinion sufficient
cause for such detention: Provided that nothing in this sub-clause shall
authorize the detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub-clause (b) of clause
(7); or (b) such person is detained in accordance with the provisions of
any law made by Parliament under sub clauses (a) and (b) of clause (7)
(5) When any person is detained in pursuance of an order made under any
law providing for preventive detention, the authority making the order
shall, as soon as may be, communicate to such person the grounds on
which the order has been made and shall afford him the earliest opportunity
of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order
as is referred to in that clause to disclose facts which such authority
considers being against the public interest to disclose.
(7) Parliament may by law prescribe: (a) the circumstances under which,
and the class or classes of cases in which, a person may be detained
for a period longer than three months under any law providing for preventive
detention without obtaining the opinion of an Advisory Board in
accordance with the provisions of sub-clause (a) of clause (4); (b) the
maximum period for which any person may in any class or classes of
cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under
[sub-clause (a) of clause(4)].
Article 22 deals with two different matters (1) persons arrested under
ordinary law of cries and (2) persons detained under the law of preventive
detentions. The first two clauses of the Article deal with detention under the
ordinary law of crimes and lay down the procedure which has to be followed
when a man is arrested and the remaining clauses (3),(4),(5)(6) deal with persons
detained under a preventive detention law and lay down the procedure which is
to be followed when a person is detained under the law.
Rights of arrested persons under ordinary laws: Clauses (1) and (2) of
Article 22 guarantees four rights on the persons who arrested for any offense
under an ordinary law:
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1. The right to be informed as soon as may be of the ground of arrest;
2. The right to consult and to be represented by the lawyer of his own choice;
3. The right to be produced before a Magistrate within 24 hours;
4. The freedom from detention beyond the said period except by the order of
the Magistrate.
These rights are available to both citizens as well as non-citizens and not
to persons arrested and detained under any law providing for preventive detention.
Preventive detention laws: Clauses (4) to (7) of Article 22 provide the
procedure to be followed if a person is arrested under the law of preventive
detention.
Constitutional safeguards against preventive detention: Though the
Constitution has recognized the need of laws as to preventive detention, it has
also provided safeguards to mitigate their harshness by placing fetters on
legislative powers conferred on the Legislature. Clauses (4) to (7) guarantee
the following safeguards to a person arrested under preventive detention laws:
(a) Review by Advisory Board
(b) Communication of grounds of detention to detenue
(c) Detenues right of representation
(a) Review by Advisory Board: According to clause (4) of Article 22 as
amended by the 44th Amendment Act, 1978 provides that a person cannot
be detained for more than two months without obtaining the opinion of
advisory board.
(b) Communication of grounds of detention to detenue: Article 22(5) gives
two rights to the detenue: (1) When any person is detained in pursuance
of an order made under any law providing for preventive detention, the
authority making the order shall communicate to such person the grounds
of arrest (2) give him the earliest opportunity of making a representation
against the order.
(c) Detenues right of representation: the other right given to the detenue
is that he should be given the earliest opportunity of making a representation
against detention order.
3. Right against Exploitation: Articles 23 and 24
The right against exploitation provides for two provisions, namely the abolition of
trafficking in human beings and Begar (forced labour), and abolition of
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employment of children below the age of 14 years in dangerous jobs like factories
and mines.
Prohibition of traffic in human beings and forced labour (Article23)
Article 23 says:
Traffic in human beings and begar and other similar forms of forced labour
are prohibited and any contravention of this provision shall be an offence
punishable in accordance with law.(2) Nothing in this Article shall prevent
the State from imposing compulsory service for public purposes, and in
imposing such service the State shall not make any discrimination on
grounds only of religion, race, caste or class or any of them.
Traffic in human beings means selling and buying men and women like
goods and includes immoral traffic in women and children for immoral and other
purposes. Article 23 protects the individual not only against the state but also
private citizens. It imposes an obligation on the states to take steps to abolish
evils of traffic in human beings and begar and other similar forms of forced
labour wherever they are found. Article 23 prohibits the system of forced labour
because it is a form of force labour within the meaning of Article 23.
In case of Peoples Union for Democratic Rights v union of India (1982),
the Supreme Court held that the scope of Article 23 is wide and unlimited and
strikes at traffic in human beings and beggar and other forms of forced labour.
Article 23(2) contains an exception to the rule in Clause (1) and provides
that the state is empowered to impose compulsory services for public purposes.
But in imposing such compulsory services the state cannot make any
discrimination on the ground only of religion, race, caste or class or any of them.
Prohibition of employment of children in factories, etc(Article 24)
Article 24 provides: No child below the age of fourteen years shall be employed
to work in any factory or mine or engaged in any other hazardous employment.
Article 24 prohibits the employment of children below the age of 14 years in
factories and hazardous employment. This provision is embodied in the
constitution to safeguard the life of children. In case of M.C. Mehta v Union of
India (1997), the Supreme Court held that children below the age of 14 years
cannot be employed in any hazardous industry, mines or other works.
4. Right to Freedom of Religion: Articles 25, 26, 27 and 28
Right to freedom of religion provides religious freedom to all citizens of India.
The objective of this right is to sustain the principle of secularism in India. Though
India is a secular state, it has provided right of religious freedom. Provisions
have been made in the Constitution of India under Article 2528 for protecting
and safeguarding the right to freedom of religion.
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Freedom of conscience and free profession, practice and propagation of
religion (Article 25)
Under Article 25:
(1) Subject to public order, morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience
and the right freely to profess, practice and propagate religion.
(2) Nothing in this Article shall affect the operation of any existing law or
prevent the State from making any law- (a) regulating or restricting any
economic, financial, political or other secular activity which may be
associated with religious practice; (b) providing for social welfare and
reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus.
Explanation I.the wearing and carrying of kirpans shall be deemed to
be included in the profession of the Sikh religion.
Explanation II.In sub-clause (b) of clause (2), the reference to Hindus
shall be construed as including a reference to persons professing the
Sikh, Jain or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly.
So Article 25 guarantees ever person freedom of conscience and free
profession, practice and propagation of religion. But the right guaranteed under
Article 25 is not absolute and subject to: (1) public order, morality and health and
(2) regulation of economic, financial, political, and secular activities associated
with religious practices, (3) social welfare and social reforms.
Freedom to manage religious affairs (Article 26)
Article 26 provides: Subject to public order, morality and health, every religious
denomination or any section thereof shall have the rights to:
(a) establish and maintain institutions for religious and charitable purposes;
(b) manage its own affairs in matters of religion;
(c) own and acquire movable and immovable property; and
(d) administer such property in accordance with law.
The right guaranteed under Article 25 is an individual right while the right
guaranteed under Article 26 is the right of an organized body like religious
denominations or any other section thereof.
Freedom from taxes for promotion of any particular religion (Article 27)
Article 27 provides: No person shall be compelled to pay any taxes, the proceeds
of which are specifically appropriated in payment of expenses for the promotion
or maintenance of any particular religion or religious denomination.
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This Article emphasizes on the secular character of the state. The public
money collected by way of taxes can be spent by the state for the promotion of
any particular religion.
Prohibition of religious instructions in state-aided institutions (Article
28)
According to Article 28 :
(1) No religious instruction shall be provided in any educational institution
wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which
is administered by the State but has been established under any
endowment or trust which requires that religious instruction shall be
imparted in such institution.
(3) No person attending any educational institution recognized by the
State or receiving aid out of State funds shall be required to take part in
any religious instruction that may be imparted in such institution or to
attend any religious worship that may be conducted in such institution
or in any premises attached thereto unless such person or, if such person
is a minor, his guardian has given his consent thereto.
Article 28 mentions four types of educational institutions:
1. Institutions wholly maintained by the state;
2. Institutions recognized by the states;
3. Institutions that are receiving aid out of the state fund;
4. Institutions that are administered by the state but are established under
any trust or endowment.
5. Cultural and Educational Rights: Articles 29 and 30
As India is a country of many languages, religions, and cultures, the Constitution
provides special measures, in Articles 29 and 30, to protect the rights of the
minorities.
Under Article 29 :
(1) Any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have the right
to conserve the same.
(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them. Article 29(1) guarantees the citizens
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of India residing in the territory of India or any part thereof having a distinct
language, script or culture of its own shall have the right to conserve the same.
A minority community can preserve its language, script or culture through
educational institutions.
Article 30(1) says: All minorities, whether based on religion or language,
shall have the right to establish and administer educational institutions of their
choice.
Article 30 (2)says: The State shall not, in granting aid to educational
institutions, discriminate against any educational institution on the ground that it
is under the management of a minority, whether based on religion or language.
6. Right to Constitutional Remedies: Articles 3235
Articles 32 to 35 deal with the right to constitutional remedies. Article 32 gives
the right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by Part III. The Supreme Court empowered
to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part. Any
person can apply under Article 32 of the constitution against violation of any
fundamental right of any person. It is not necessary that the person whose right
has been violated can only apply for the enforcement of his rights; rather anyone
can apply on his behalf through public interest litigation.
Under Article 33 powers has been given to Parliament to modify the rights
conferred by this Part in their application to Forces, etc. Article 34 provides for
restriction on rights conferred by this Part while martial law is in force in any
area. Article 35 gives power to Parliament to make legislation to give effect to
the provisions of this Part.
5.3.2 Articles Covering the Directive Principles of State Policy
The Directive Principles of State Policy can be classified as follows:
1 State to secure a social order for the promotion of welfare of the people
(Article 38)
Article 38 provides:
(1) The State shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which justice,
social, economic and political, shall inform all the institutions of the
national life.(2) The State shall, in particular, strive to minimize the
inequalities in income, and endeavor to eliminate inequalities in status,
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facilities and opportunities, not only amongst individuals but also amongst
groups of people residing in different areas or engaged in different
vocations.
Article 38 aims at promoting the welfare of people by securing and
protecting social and economic justice. In case of Air India Statutory Corporation
v United Labour Union 1997), the Supreme Court of India explained the concept
of social justice in the following words:
The concept of social justice consists of diverse principles essential for the orderly
growth and development of personality of every citizen. Social justice is then an integral
part of justice in the generic sense. Justice is the genus, of which social justice is the
species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak,
dalits, tribal and deprived section of the society and to elevate them to the level of equality
to live a life with dignity of person. Social justice is not a single simple idea of a society
but is an essential part of complex social change to relieve the poor etc. from handicaps,
penury, to ward off distress and to make their life livable for greater good of the society at
large. The aim of social justice is to attain substantial degree of social, economic and
political equality which is the legitimate expectation and constitutional goal.
2. Certain principles of policy to be followed by the state (Article 39)
Article 39 states that the State shall direct its policy towards securing the following
goals:
(a) That the citizens, men and women equally, have the right to an adequate
means of livelihood;
(b) That the ownership and control of the material resources of the community
are so distributed as best to sub serve the common good;
(c) That the operation of the economic system does not result in the
concentration of wealth and means of production to the common detriment;
(d) That there is equal pay for equal work for both men and women;
(e) That the health and strength of workers, men and women, and the tender
age of children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength;
(f) That children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and material
abandonment.
Clause (f) of the Article was modified by the Constitution (42nd
amendment) Act, 1976 with a view to emphasize the constructive role of the
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state with regard to children. In case of M. C. Mehta v State of Tamil Nadu,
(1991)1SCC283, the supreme court of India held that in view of Article 39, the
employment of children within the match factories directly connected with the
manufacturing process of matches and fireworks cannot be allowed as it is
hazardous.
In another landmark judgment of M. C. Mehta v State of Tamil Nadu,
AIR1997SC699 which is also known as (Child Labour Abolition Case), the
Supreme Court held that children below the age of 14 years cannot be employed
in any hazardous industry or mines or other work.
Equal justice and free legal aid (Article 39A)
Article 39-A provides: The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide
free legal aid, by suitable legislation or schemes or in any other way, to ensure
that opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities. It talks about free legal aid and equal justice. This
Article directs the state to ensure the operation of legal system to promote justice
on the basis of equal opportunity and to provide free legal aid. In H. M. Hoskot v
State of Maharashtra (1978), and Hussainara Khatoon v Home Secretary, State
of Bihar (1979), the Supreme Court of India has held that the state is under a
duty to provide a lawyer to a poor person and to pay the fees of the lawyer fixed
by the court.
Organization of village panchayats (Article 40)
According to Article 40: The State shall take steps to organize village panchayats
and endow them with such powers and authority as may be necessary to enable
them to function as units of self-government.
Right to work, to education and to public assistance in certain cases
(Article 41)
According to Article 41, The State shall, within the limits of its economic capacity
and development, make effective provision for securing the right to work, right to
education and right to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want.
Provision for just and humane conditions of work and maternity relief
(Article 42)
Article 42 provides that the State shall make provision for securing just and
humane conditions of work and for maternity relief.
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Living wage, etc., for workers (Article 43)
Article 43 provides that the State shall endeavor to secure, a living wage,
conditions of work ensuring a decent standard of life and full enjoyment of leisure
and social and cultural opportunities to all workers, agricultural, industrial or
otherwise by suitable legislation or economic organization or in any other way,
and shall also make attempt to promote cottage industries on an individual or
co-operative basis in rural areas.
Participation of workers in management of industries (Article 43A): Article
43 A provides that The State shall take steps, to secure the participation of workers
in the management of undertakings, establishments or other organizations
engaged in any industry by suitable legislation or in any other way.
Uniform Civil Code of Citizens (Article 44)
Article 44 provides that the State shall endeavor to secure a uniform civil code
for the citizens throughout the territory of India. In a historic judgment in Sarla
Mudgal v Union of India, (1995) , the Supreme Court of India directed the then
prime minister Narsimha Rao to take fresh look at Article 44 of the Constitution
of India which enjoins the state to secure a uniform civil code which according
to the court is imperative for both protection of the oppressed and promotion of
national unity and integrity.
Provision for free and compulsory education for children (Article 45)
Article 45 directs the State to endeavour to provide, for free and compulsory
education for all children until they complete the age of fourteen years. Under
the Constitution (Eighty-sixth Amendment) Act, 2002, the State shall endeavour
to provide early childhood care and education for all children until they complete
the age of six years.
Promotion of educational and economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sections (Article 46)
Article 46 provides: The State shall promote with special care the educational
and economic interests of the weaker sections of the people, and, in particular,
of the Scheduled Castes and the Scheduled Tribes, and protect them from
social injustice and all forms of exploitation.
Duty of the State to raise the level of nutrition and the standard of
living and to improve public health (Article 47)
According to Article 47: The State shall consider the raising of the level of
nutrition and the standard of living of its people and the improvement of public
health as among its primary duties and, in particular, shall endeavour to bring
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about prohibition of the consumption except for medicinal purposes of intoxicating
drinks and of drugs which are injurious to health.
Organization of agriculture and animal husbandry (Article 48)
According to Article 48: The state shall organize agriculture and animal husbandry
on modern and scientific lines and take steps for preserving and improving the
breeds, and prohibiting the slaughter, of cows and calves and other milch and
draught cattle.
Protection and improvement of environment and safeguarding of forests
and wildlife (Article 48A): Article 48-A says that the State shall endeavor to
protect and improve the environment and to safeguard the forests and wild life
of the country. In case of M.C. Mehta (II) v Union of India (1988), the supreme
court relying on Article 48A gave directions to the Central and State Governments
and various local bodies and Boards under the various statutes to take appropriate
step for the prevention and control of the pollution of water.
Protection of monuments and places and objects of national importance
(Article 49)
Article 49 provides that it shall be the obligation of the State to protect every
monument or place or object of artistic or historic interest, declared by or under
law made by Parliament to be of national importance, from spoliation,
disfigurement, destruction, removal, disposal or export, as the case may be.
Separation of judiciary from executive (Article 50)
Article 50 provides that the State shall take steps to separate the judiciary from
the executive in the public services of the State.
Promotion of international peace and security (Article 51)
Article 51 provides that the state shall endeavour to take the following steps for
promoting peace and security in the country:
(a) Promote international peace and security;
(b) Maintain just and honorable relations between nations;
(c) Foster respect for international law and treaty obligations in the dealings
of organized peoples with one another; and
(d) Encourage settlement of international disputes by arbitration.
The Directive Principles of State Policy included in Part IV of the Constitution
have a special purpose of bringing about social and economic equality. These
principles give directions to the state for making laws and policies for the collective
good of the people. These Principles are non-justiciable and are not enforceable
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by the Courts of law. But they are nevertheless fundamental to the governance
of country.
5.3.3 Article Covering the Fundamental Duties
Article 51- A covers the Fundamental Duties of Indian citizens. According to this
Article, it shall be the duty of every citizen of India:
(a) To abide by the Constitution and respect its ideals and institutions, the
National Flag and the National Anthem;
(b) To cherish and follow the noble ideals which inspired our national struggle
for freedom;
(c) To uphold and protect the sovereignty, unity and integrity of India;
(d) To defend the country and render national service when called upon to do
so;
(e) To promote harmony and the spirit of common brotherhood amongst all
the people of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women;
(f) To value and preserve the rich heritage of our composite culture;
(g) To protect and improve the natural environment including forests, lakes,
rivers and wild life, and to have compassion for living creatures;
(h) To develop the scientific temper, humanism and the spirit of inquiry and
reform;
(i) To safeguard public property and to abjure violence;
(j) To strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavor and
achievement;
(k) Who is a parent or guardian to provide opportunities for education to his
child or, as the case may be, ward between the age of six and fourteen
years.
Need for Fundamental Duties
As the rights and duties are correlative so the fundamental duties are intended
to serve as a reminder to every citizen that while the Constitution specifically
confers on them certain fundamental rights, it also requires them to observe
some basic norms.
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Activity 1
Find out how the Directive Principles of State Policy enshrined in the Indian
Constitution are similar to Directive Principles of Social Policy enshrined in
the Irish Constitution.
Self-Assessment Questions
3. Fill in the blanks with appropriate words.
(a)
______
says that the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory
of India.
(b) Under, reasonable restrictions can be imposed on freedom
of speech and expression on the ground of the security of the State.
4. State whether the following statements are true or false.
(a) Article 32 gives the right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by Part III of
the Constitution.
(b) Article 44 provides that the State shall endeavour to secure a uniform
civil code for the citizens throughout the territory of India.
5.4 Indian Constitution and UN Declaration on Human Rights
Respect for human rights as a part of its social philosophy has existed in the
Indian ethos for a long time. India took active part in drafting of the Universal
Declaration on Human Rights (UDHR). The Indian delegation to the United
Nations, led by Dr (Mrs). Hansa Mehta, a Gandhian political campaigner and
social worker, made important contributions in drafting of the UDHR, especially
highlighting the need for reflecting gender equality. India is a signatory to the six
core human rights covenants, and also the two Optional Protocols to the
Convention of the Rights of the Child. Since inception, the Indian Constitution
incorporated most of the rights enumerated in the UDHR in two parts, the
Fundamental Rights ( already discussed in detail under sub-section 5.3.1) and
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the Directive Principles of State Policy (already discussed in detail under sub-
section 5.3.2), that covered almost the entire field of Universal Declaration of
Human Rights.
The first set of rights are enunciated in Articles 2 to 21 of the UDHR and
incorporated under the Fundamental Rights of the Indian Constitution. These
include the Right to Equality, Right to Freedom, Right Against Exploitation, Right
to Freedom of Religion, Cultural and Educational Rights, Saving of Certain Laws
and Right to Constitutional Remedies.The second set of rights enunciated in
Articles 22 to 28 of the UDHR is incorporated under Directive Principles of State
Policy of the Indian Constitution. These include 'right to social security, right to
work, to free choice of employment, to just and favourable conditions of work
and protection against unemployment, right to equal pay for equal work, right to
existence worthy of human dignity, right to rest and leisure, right to freely
participate in the cultural life of the community, right to free and compulsory
education, promotion of welfare of people, equal justice and free legal aid and
the principles of policy to be followed by the State.'
5.4.1 International Human Rights Instruments and their Application
in India
Towards human rights, India advocates and adopts a holistic and integrated
approach. This approach equally stresses upon all kinds of human rights, as
these are linked with each other due to their inter-dependence, inter-relatedness,
indivisibility and universality. The country believes that democracy, development,
human rights and international cooperation for development are related with
each other.
International Human Rights Commission and India
As the member of the International Human Rights Commission (IHRC), India
has played an active role since it was established in 1947. In 2006, the country
was elected as a member of the newly constituted Human Rights Council (HRC),
which substituted the CHR, by securing the maximum number of votes among
those who contested for the seats in the HRC. In 2007, it was re-elected as a
member by getting the maximum votes by polling 185 votes out of 190 votes
cast. India assumes the HRC to be the most important organization. The country
is committed to render the HRC a strong, successful and competent body that
is capable of encouraging and guarding human rights and fundamental freedom
for everyone.
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The National Commission for Human Rights (NHRC) was set up in India
in 1993. It is an autonomous body for the security of human rights in the
country.The Commission has now become an essential part of the life of the
nation and, more and more, of outcome to the quality of its authority.
Consciousness about the rights guaranteed by the Indian Constitution, and the
rights included in the global treaties to which India is a State party, has raised
radically in the country.
In August 2005, the Indian Parliament took a step in the direction of ensuring
justifiability of economic and social rights by endorsing a Rural Employment
Guarantee Act. This Act provides the 100 days of assured employment in a year
to every rural family. The Parliament once again proved that in is committed to
provide access to information to the citizens by enacting the Right to Information
Act in 2005.
Right from the time of the countrys independence, the rights of susceptible
groups have been given special attention in India. The Constitution contains
wide-ranging provisions for the encouragement and security of the rights of all
minorities, including some particular groups of people found only in the Indian
society. These are called Scheduled Castes and Scheduled Tribes. These
provisions have been further consolidated by a fresh amendment of the
Constitution that offers the Scheduled Tribes a local self-government and a high
extent of autonomy in managing their day-to-day affairs, management of natural
resources and other progress activities in the regions where they live. Independent
institutions for example National Commission for the Scheduled Castes and
Scheduled Tribes and National Commission for Minorities are successfully
promoting and guarding the rights of these susceptible groups. In addition,
National Minorities Development and Financial Corporation and National
Backward Classes Finance and Development Corporation (NBCFDC) have been
established to encourage economic and development measures of minorities
and Other Backward Classes in India.
The objective of the NHRC provides a clear image through which the
situation of the international human rights instruments can be understood in a
better way. As per the Statement of Objects and Reasons of the Human Rights
Protection Bill, the NHRC would appraise the existing laws, processes and the
method of governance, and stress on the fact that the country is a signatory to
the International Covenant on Civil and Political Rights (ICCPR) as well as the
International Covenant on Economic, Social and Cultural Rights (ICESCR). The
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details of Indias role in implementing ICESCR have been discussed in the
following section of this unit. Let us discuss Indias role with regard to ICCPR.
India and ICCPR
The ICCPR is a multilateral treaty adopted by the UN in 1966. Effective from
1976, it commits its member states to respect the civil and political rights of
individuals. The various civil and political rights covered by it are the right to life,
rights to due process and a fair trial, electoral rights, freedom of speech, freedom
of religion and freedom of assembly.
India ratified the ICCPR in 1979. While ratifying the Covenant, India had
reservations regarding Article 9 (pertaining to preventive detention). India was of
the view that the provisions of Article 9 of ICCPR should be in consonance with
the provisions of the clauses (3) to (7) of Article 22 of the Indian Constitution.
Article 9 (5) of ICCPR provides for enforceable right to compensation for victims
of unlawful detention. In India, the right to compensation has been restricted by
lack of sufficient constitutional. Compensations for illegal arrest and detention
and custodial deaths have been left to the discrition of individual judges or
benches.
The entire set of rights mentioned in Article 12, 19(3), 21 and 22 of the
ICCPR is not applicable in India. However, Article 17 of the ICCPR, which pertains
to the right to privacy, is applicable in the country, especially in post and telephone
communications.
UN Convention on the Rights of Persons with Disabilities and India
India was the seventh country to have ratified the UN Convention on the Rights
of Persons with Disabilities. It had actively participated in the meetings of the Ad
Hoc Committee of the UN General Assembly on the Final Decision of a Convention
on the Rights of the Persons with Disabilities. When the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act was enacted
in India in 1995, the event was considered as an important step towards offering
equal opportunities to people with disabilities and their total contribution in the
building of the nation. In 2001, the Government of India set up the National Trust
for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and
Multiple Disabilities. Earlier, in 1997, a National Handicapped Finance and
Development Corporation was set up. These institutions have been established
to encourage economic development of individuals with disabilities.
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Self-Assessment Questions
5. Fill in the blanks with appropriate words.
(a) The National Commission for Human Rights (NHRC) was set up in
India in .
(b) of the International Covenant on Civil and Political Rights
(ICCPR) pertains to preventive detention.
6. State whether the following statements are true or false.
(a) India is not a signatory to the Beijing Platform for Action for women.
(b) India was the first country to ratify the UN Convention on the Rights
of Persons with Disabilities.
5.5 International Covenant on Economic, Social and Cultural
Rights (ICESCR) and India
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
is a multilateral treaty adopted by the UN General Assembly in 1966. It is part of
the International Bill of Human Rights, along with the Universal Declaration of
Human Rights (UDHR) and the International Covenant on Civil and Political Rights
(ICCPR). It is in force since 1976. Monitored by the UN Committee on Economic,
Social and Cultural Rights, it commits its parties to work toward the granting of
economic, social and cultural rights to individuals.
Overview of key provisions of ICESCR
Article 1: Right to self-determination
Article 2: Right to non-discrimination based on race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status
Article 3: Equal right of men and women in the enjoyment of ESCR
Article 4: State may subject such rights only to such limitations as are
determined by law only in so far as this may by compatible with the nature
of these rights and solely for the purpose of promoting the general welfare
in a democratic society
Article 5: No torture or cruel, inhuman, degrading treatment or punishment
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Article 6: Right to work. It includes the right of everyone to the opportunity
to gain his living by work which he freely chooses or accepts and will take
appropriate steps to safeguard this right.
Article 7: Right of everyone to the enjoyment of just and favourable
conditions of work which ensure fair wages, equal pay for equal work and
a decent living; safe and healthy working conditions; promotion, rest, leisure
and reasonable limitations of working hours and periodic holidays with
pay
Article 8: Right to form and join trade unions. It is closely linked to the
freedom of association, which is widely recognized in international Human
Rights Law. These rights, combined with the right to strike are fundamental,
if the rights of workers and other citizens under the Inter-national Covenant
on Economic, Social and Cultural Rights are to be implemented
Article 9: Right to social security and social insurance. The States Parties
recognize the right of everyone to social security, including social insurance.
Many States do not maintain adequate social security or social insurance
provisions under domestic laws protecting people in circumstances such
as old age, disability, ill health or other situations not allowing them to earn
a decent living. Social security schemes in medical care, cash sickness
benefits, maternity benefits, old age benefits, invalidity benefits, survivors
benefits, maternity benefits are therefore important.
Article 10: Protection and assistance for the family. It provides protection
for the family, mothers and children. The committee on ESCR has not
spent a great deal of time in examining situations relating to family rights,
but has devoted increased attention to the rights of the child under Article
10(3). In particular, it has paid attention to child labour and the living
conditions of children.
Article 11: Right to an adequate standard of living. The committee on
ESCR has defined the term adequate housing to comprise security of
tenure, availability of services, affordability, habitability, accessibility, location
and cultural adequacy. The committee has decided on several occasions
that certain States Parties had violated provisions of Article 11 on account
of forced evictions.
Article 12: Right to health. The States parties to the present Covenant
recognize the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.
Article 13 & 14: Right to education
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Article 15: Right to culture and to benefit from scientific progress
Articles 16 and 17: Members to submit periodic reports to the Committee
on ESCR
Monitoring of ICESCR by the Committee on ESCR
Compliance by States parties (around 155) with their obligations under the
covenant and the level of implementation of the rights and duties in question is
monitored by the committee on economic, social and cultural rights, which
submits, annual reports on its activities to ECOSOC. The committee on ESCR
draws its authority from ECOSOC and is comprised of 18 experts who are
elected by ECOSOC for four year terms. They are independent and serve in
their personal capacity, not as representatives of Government. It meets twice a
year for a three week sessions each. The committee on ESCR draws its
information from the following sources:
Reports submitted by States parties
Information from UN specialized agencies including ILO, UNESCO, WHO,
FAO, World Bank, IMF, UNDP, UNHCR, Habitat and others NGOs
It adopts a constructive dialogue approach while dealing with States parties.
It examines, whether or not the norms contained in the covenant are being
adequately implemented in States parties and how the implementation and
enforcement of the covenant could be improved, so that, all people can actually
enjoy them in full. Drawing on the legal and practical expertise of its members,
the committee also assists Governments in fulfilling their obligations under the
covenant by issuing specific legislative, policy and other suggestions and
recommendations such that Economic, Social, Cultural Rights are more
effectively secured.
Under Articles 16 and 17 of the covenant, States parties undertake to submit
periodic reports to the committee within two years of the entry into force of the
covenant for a particular State party, and thereafter once every five years. In
these reports, the States parties are expected to outline the legislative, judicial,
policy and other measures which they have taken to ensure the enjoyment of
the rights contained in the covenant. States parties are also required to provide
detailed data on the degree to which the rights are implemented and areas where
particular difficulties have been faced in this respect. The committee has issued
reporting guidelines specifying the types of information required.
The reporting process is not a mere formality. Non-submission of reports
by a large number of States parties and resource constraints of States are some
problems. Still, this mechanism has a number of important functions like initial
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review function, the monitoring function, the policy formulation function, the public
scrutiny function, the evaluation function, the function of acknowledging problems
and the information-exchange function.
The committee on ESCR issues General Comments from time to time
elaborating the normative content of various rights for the benefit of States parties.
In its, General Comment No.14 on the right to health, CESCR discusses the
core obligations and elements of the right, namely,
Availability
Accessibility
Acceptability
Quality
Similar comments have been issued on right to education, adequate
standard of living etc.
5.5.1 India and ICESCR
India signed the ICESCR on 10 April, 1979, declaring:
I. With reference to article 1 of the International Covenant on Economic, Social
and Cultural Rights and article 1 of the International Covenant on Civil and Political
Rights, the Government of the Republic of India declares that the words `the
right of self-determination appearing in [this article] apply only to the peoples
under foreign domination and that these words do not apply to sovereign
independent States or to a section of a people or nationwhich is the essence
of national integrity.
II. With reference to article 9 of the International Covenant on Civil and Political
Rights, the Government of the Republic of India takes the position that the
provisions of the article shall be so applied as to be in consonance with the
provisions of clauses (3) to (7) of article 22 of the Constitution of India. Further
under the Indian Legal System, there is no enforceable right to compensation
for persons claiming to be victims of unlawful arrest or detention against the
State.
III. With respect to article 13 of the International Covenant on Civil and Political
Rights, the Government of the Republic of India reserves its right to apply its law
relating to foreigners.
IV. With reference to articles 4 and 8 of the International Covenant on Economic,
Social and Cultural Rights, and articles 12, 19 (3), 21 and 22 of the International
Covenant on Civil and Political Rights the Government of the Republic of India
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declares that the provisions of the said [article] shall be so applied as to be in
conformity with the provisions of article 19 of the Constitution of India.
V. With reference to article 7 (c) of the International Covenant on Economic,
Social and Cultural Rights, the Government of the Republic of India declares
that the provisions of the said article shall be so applied as to be in conformity
with the provisions of article 16(4) of the Constitution of India.
Source: http://nhrc.nic.in/Publications/Disability/Chapter04.htm
Activity 2
Find out the provisions under the Directive Principles of State Policy that
correspond to the provisions of the International Covenant on Economic,
Social and Cultural Rights (ICESCR).
Self-Assessment Questions
7. Fill in the blanks with appropriate words.
(a) ICESCR was adopted by the UN General Assembly in 1966 and came
into force in.
(b) Article 1 of ICESCR provides for right to .
8. State whether the following statements are true or false.
(a) Article 11 of ICESCR provides for right to an adequate standard of
living.
(b) India signed the ICESCR in 1979.
5.6 Human Rights: Chinese and US Constitutions
This section deals with the provisions relating to human rights in the Constitutions
of China and US.
5.6.1 Chinese Constitution and Human Rights
The Constitution of the Peoples Republic of China is the main law within the
Peoples Republic of China. The existing version of the Chinese Constitution
was adopted by the 5th National Peoples Congress on December 4, 1982.
Later, some revisions were made in it in 1988, 1993, 1999 and 2004.
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The following are the fundamental rights and duties of the Chinese citizens:
Article 33: All persons holding the nationality of the Peoples Republic of
China are citizens of the Peoples Republic of China.
All citizens of the Peoples Republic of China are equal before the law.
The State respects and guarantees human rights.
Every citizen is entitled to the rights and at the same time must perform
the duties prescribed by the Constitution and the law.
Article 34: All citizens of the Peoples Republic of China who have reached
the age of 18 have the right to vote and stand for election, regardless of
ethnic status, race, sex, occupation, family background, religious belief,
education, property status or length of residence, except persons deprived
of political rights according to law.
Article 35: Citizens of the Peoples Republic of China enjoy freedom of
speech, of the press, of assembly, of association, of procession and of
demonstration.
Article 36: Citizens of the Peoples Republic of China enjoy freedom of
religious belief.
No state organ, public organization or individual may compel citizens to
believe in, or not to believe in, any religion; nor may they discriminate
against citizens who believe in, or do not believe in, any religion.
The state protects normal religious activities. No one may make use of
religion to engage in activities that disrupt public order, impair the health of
citizens or interfere with the educational system of the state.
Religious bodies and religious affairs are not subject to any foreign
domination.
Article 37: Freedom of the person of citizens of the Peoples Republic of
China is inviolable.
No citizen may be arrested except with the approval or by decision of a
peoples procuratorate or by decision of a peoples court, and arrests must
be made by a public security organ.
Unlawful detention or deprivation or restriction of citizens freedom of the
person by other means is prohibited, and unlawful search of the person of
citizens is prohibited.
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Article 38: The personal dignity of citizens of the Peoples Republic of
China is inviolable. Insult, libel, false accusation or false incrimination
directed against citizens by any means is prohibited.
Article 39: The residences of citizens of the Peoples Republic of China
are inviolable. Unlawful search of, or intrusion into, a citizens residence is
prohibited.
Article 40: Freedom and privacy of correspondence of citizens of the
Peoples Republic of China are protected by law. No organization or
individual may, on any ground, infringe upon citizens freedom and privacy
of correspondence, except in cases where, to meet the needs of state
security or of criminal investigation, public security or procuratorial organs
are permitted to censor correspondence in accordance with procedures
prescribed by law.
Article 41: Citizens of the Peoples Republic of China have the right to
criticize and make suggestions regarding any state organ or functionary.
Citizens have the right to make to relevant state organs complaints or
charges against, or exposures of, any state organ or functionary for violation
of the law or dereliction of duty; but fabrication or distortion of facts for
purposes of libel or false incrimination is prohibited.
The state organ concerned must deal with complaints, charges or
exposures made by citizens in a responsible manner after ascertaining
the facts. No one may suppress such complaints, charges and exposures
or retaliate against the citizens making them.
Citizens who have suffered losses as a result of infringement of their civic
rights by any state organ or functionary have the right to compensation in
accordance with the law.
Article 42: Citizens of the Peoples Republic of China have the right as
well as the duty to work.
Through various channels, the state creates conditions for employment,
enhances occupational safety and health, improves working conditions
and, on the basis of expanded production, increases remuneration for
work and welfare benefits.
Work is a matter of honour for every citizen who is able to work. All working
people in state-owned enterprises and in urban and rural economic
collectives should approach their work as the masters of the country that
they are. The state promotes socialist labour emulation, and commends
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and rewards model and advanced workers. The state encourages citizens
to take part in voluntary labour.
The state provides necessary vocational training for citizens before they
are employed.
Article 43: Working people in the Peoples Republic of China have the
right to rest.
The state expands facilities for the rest and recuperation of the working
people and prescribes working hours and vacations for workers and staff.
Article 44: The state applies the system of retirement for workers and
staff of enterprises and institutions and for functionaries of organs of state
according to law. The livelihood of retired personnel is ensured by the
state and society.
Article 45: Citizens of the Peoples Republic of China have the right to
material assistance from the state and society when they are old, ill or
disabled. The state develops social insurance, social relief and medical
and health services that are required for citizens to enjoy this right.
The state and society ensure the livelihood of disabled members of the
armed forces, provide pensions to the families of martyrs and give
preferential treatment to the families of military personnel.
The state and society help make arrangements for the work, livelihood
and education of the blind, deaf-mute and other handicapped citizens.
Article 46: Citizens of the Peoples Republic of China have the duty as
well as the right to receive education.
The state promotes the all-round development of children and young
people, morally, intellectually and physically.
Article 47: Citizens of the Peoples Republic of China have the freedom
to engage in scientific research, literary and artistic creation and other
cultural pursuits. The state encourages and assists creative endeavours
conducive to the interests of the people that are made by citizens engaged
in education, science, technology, literature, art and other cultural work.
Article 48: Women in the Peoples Republic of China enjoy equal rights
with men in all spheres of life, in political, economic, cultural, social and
family life.
The state protects the rights and interests of women, applies the principle
of equal pay for equal work to men and women alike and trains and selects
cadres from among women.
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Article 49: Marriage, the family and mother and child are protected by the
state.
Both husband and wife have the duty to practice family planning.
Parents have the duty to rear and educate their children who are minors,
and children who have come of age have the duty to support and assist
their parents.
Violation of the freedom of marriage is prohibited. Maltreatment of old
people, women and children is prohibited.
Article 50: The Peoples Republic of China protects the legitimate rights
and interests of Chinese nationals residing abroad and protects the lawful
rights and interests of returned overseas Chinese and of the family
members of Chinese nationals residing abroad.
Article 51: Citizens of the Peoples Republic of China, in exercising their
freedoms and rights, may not infringe upon the interests of the state, of
society or of the collective, or upon the lawful freedoms and rights of other
citizens.
Article 52: It is the duty of citizens of the Peoples Republic of China to
safeguard the unification of the country and the unity of all its ethnic groups.
Article 53: Citizens of the Peoples Republic of China must abide by the
Constitution and the law, keep state secrets, protect public property,
observe labour discipline and public order and respect social ethics.
Article 54: It is the duty of citizens of the Peoples Republic of China to
safeguard the security, honour and interests of the motherland; they must
not commit acts detrimental to the security, honour and interests of the
motherland.
Article 55: It is the sacred duty of every citizen of the Peoples Republic of
China to defend the motherland and resist aggression.
It is the honourable duty of citizens of the Peoples Republic of China to
perform military service and join the militia in accordance with the law.
Article 56: It is the duty of citizens of the Peoples Republic of China to
pay taxes in accordance with the law.
Source: The content on the Chinese Constitution has been adapted from http://
www.gov.cn/english.
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Amendment in 2004
In 2004, the Chinese Constitution was amended. Subsequently, official
guarantees of human rights and private property were included in the Constitution.
The amendment laid down the foundation of a new marker in the nations rapid
march away from the rigid Communism of its founders. The guarantees indicated
the direction in which Chinas leaders wanted to steer their country in the
forthcoming years and conferred a legal framework on comprehensive alterations
that have already taken place in the previous two decades.
5.6.2 US Constitution and Human Rights
The US Constitution and amendments provide legal protection to human rights
in the country. The US was actively associated with the outlining of the Universal
Declaration of Human Rights (UDHR). In fact, most of the UDHR is partially
based on the US Bill of Rights. The US Constitution has incorporated many
inalienable human rights, such as freedom of speech, freedom of assembly,
freedom of religion, freedom from cruel and unusual punishment, the right to a
fair trial by jury and the right to keep and bear arms.
The US governments have ensured that Constitutional amendments are
implemented as the compulsory requirements of the society. The human rights
Acts that were approved by the Congress following the Constitutions writing
include the Civil Rights Act and the Americans with Disabilities Act. However,
as the 9
th
and 14
th
Amendments have identified, all human rights have not been
enumerated in the Constitution.
Normally debates are organized by the US Government about what may
or may not prove to be an upcoming human right. Such debates are organized
at two forums or levels, namely the US Congress (which may spell out these
rights) and the Supreme Court (which may articulate rights that are
unrecognized). Further, there are instances of particular states frequently
protecting human rights (through court action or legislation) not officially backed
by the federal governments.
Let us discuss some of the main human rights included in the US
Constitution.
Equality: The US Constitution guarantees that the right of citizens of the
United States to vote shall not be denied or abridged by the United States
or by any State on account of race, colour or previous condition of
servitude. It also prohibits the rejection of a citizen of the right to vote
based on that citizens race, colour or previous condition of servitude.
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Gender: The US Constitution prohibits the states and the federal
governments from rejecting any citizen the right to vote on the basis of
sex. This does not imply that all women have the right to vote, since suffrage
qualifications are decided by individual states. However, this does imply
that states suffrage prerequisites cannot prevent women from voting
because of their gender.
Disability: The Americans with Disabilities Act (ADA), enacted in 1990,
indicates a notable shift toward the employment of individuals with
disabilities to augment the contribution of qualified persons with disabilities
in the countrys economy and to decrease their reliance on government
privilege programmes.
Freedom of religion: The US Constitution prohibits the constitution of a
national religion by the Congress or the fondness of one religion over
another. In other words, it guarantees the free practice of religion.
Freedom of expression: The US Constitution provides for freedom of
expression (such as speech, media and public assembly). Governments
federal or state cannot apply prior control to expression, except in
exceptional circumstances, such as the issues relating to countrys
security and obscenity.
Freedom of movement: US passports are required to enter and exit the
country. The Presidential administration can deny or revoke passports for
foreign policy or national security reasons at any time.
Freedom of association: In the US, freedom of association is restricted
by the Smith Act, which prohibits political parties, which promote the violent
overthrow of the US Government.
Labour right: The US Constitution provides for the establishment of an
economy based upon highly skilled and high wage labour employed in a
capital-intensive economy. Accordingly, the US Government have
implemented several laws ensuring workers compensation, fair labour
standards, social security, unemployment insurance, a safe workplace,
collective bargaining rights and prohibition of child labour and a minimum
wage.
Health care: The US is a signatory to the Universal Declaration of Human
Rights, which states: Everyone has the right to a standard of living
adequate for the health and well-being of oneself and ones family, including
food, clothing, housing and medical care. Besides, the Principles of
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Medical Ethics of the American Medical Association (AMA) makes it
obligatory for doctors to value the human rights of the patients, i.e., to
provide medical treatment when required. Also, Americans rights in health
care are regulated by the US Patients Bill of Rights.
Death penalty: Capital punishment is a contentious issue. According to
Amnesty International, the death penalty is the ultimate, irreversible denial
of human rights. The US Supreme Court holds: Arbitrary imposition of
the death penalty at the states discretion constitutes cruel and unusual
punishment in violation of the 8th Amendment to the US Constitution.
Prison system: It is at the federal, especially at the state and local levels,
that the US penal system is executed. This social policy has resulted in
an increasing rate of incarceration.
Self-Assessment Questions
9. Fill in the blanks with appropriate words.
(a) According to of the Constitution of China, the personal dignity
of citizens of the Peoples Republic of China is inviolable.
(b) The of the US Constitution guarantees that the right of citizens
of the United States to vote shall not be denied or abridged by the US
or by any State on account of race, colour or previous condition of
servitude.
10. State whether the following statements are true or false.
(a) The amendment of the Chinese Constitution in 2000 formally included
the guarantees of human rights and private property to citizens.
(b) In the US, freedom of association is limited by the John Act
5.7 Summary
Let us recapitulate the important concepts discussed in this unit.
The Fundamental Rights, Directive Principles of State Policy and
Fundamental Duties are sections of the Constitution of India that prescribe
the fundamental obligations of the State to its citizens and the duties of
the citizens to the State.
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The Part III Fundamental Rights of the Indian Constitution contains a
pledge that grants civil rights to every Indian so that he can live peacefully
and pleasantly as a citizen of India.
The function of Fundamental Rights is not just to protect but also to prevent
widespread violation of human rights.
The prime goal of Fundamental Rights is to protect individuals from any
random actions of the State.
The Directive Principles of State Policy set out aims and objectives to be
taken up by the State in the governance of the country.
Under the Directive Principles of State Policy, the state is directed to secure
a social order for the promotion of welfare of the people; to promote social
and economic justice; to provide just and humane conditions at work
places; and to promote internal peace and security.
Fundamental duties were added in the Constitution of India by the 42nd
Amendment in 1976.
Articles 14, 15, 16, 17 and 18 of the Constitution deal with the right to
equality.
Articles 19, 20, 21 and 22 of the Constitution deal with the right to freedom.
Articles 23 and 24 of the Constitution deal with the right against exploitation.
Articles 25, 26, 27 and 28 of the Constitution deal with the right to freedom
of religion.
Articles 29 and 30 of the Constitution provide for cultural and educational
rights.
Articles 32 to 35 deal with the right to constitutional remedies.
Articles 3651 cover the Directive Principles of State Policy.
Article 51- A covers the Fundamental Duties of Indian citizens.
As the member of the International Commission on Human Rights (ICHR),
which was founded in 1947, India has played an active role in it.
India adopted a National Charter for Children in 2003 to restate its pledge
to the cause of the child to see that no child remains starving, uneducated
or ill.
India was the seventh country to have ratified the UN Convention on the
Rights of Persons with Disabilities.
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India is a signatory to the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
While ratifying the ICCPR in 1979, India stated its concern regarding Article
9 of the ICCPR, which pertains to preventive detention.
Article 7 of ICESCR entitles everyone to the enjoyment of just and
favourable conditions of work which ensure fair wages, equal pay for equal
work and a decent living; safe and healthy working conditions; promotion,
rest, leisure and reasonable limitations of working hours and periodic
holidays with pay
Under Article 33 of its Constitution, China respects and guarantees human
rights.
In the US, human rights are legally protected by the US Constitution and
amendments. The US Federal courts have authority over global human
rights laws as a federal question, arising under global law, which is the
component of the US law.
5.8 Glossary
Fundamental rights: A generally-regarded set of entitlements in the context
of a legal system, wherein such system is itself said to be based upon
this same set of basic, fundamental, or inalienable entitlements or rights
Directive Principles of State Policy: Guidelines to the central and state
governments of India to be kept in mind while framing laws and policies
Fundamental Duties: Moral obligations of all citizens to help promote a
spirit of patriotism and to uphold the unity of India
Ex-post facto law: A law which imposes penalties retrospectively, i.e, on
acts already done, and increases the penalty for such acts
Double jeopardy: A procedural defence that forbids a defendant from
being tried again on the same, or similar charges following a legitimate
acquittal or conviction
Self-incrimination: Act of accusing oneself of a crime for which a person
can then be prosecuted
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Preventive detention: Imprisonment that is not imposed as the
punishment for a crime, but in order to prevent a person from committing
a crime, if that person is deemed likely to commit a crime
Begar: A form of social labour without payment
Habeas corpus: A writ, or legal action, through which a prisoner can be
released from unlawful detention, that is, detention lacking sufficient cause
or evidence
Uniform Civil Code: The same set of secular civil laws to govern all
people irrespective of their religion, caste and tribe
Charter: The grant of authority or rights, stating that the granter formally
recognizes the prerogative of the recipient to exercise the rights specified
Covenant: A solemn agreement to engage in or refrain from a specified
action
5.9 Terminal Questions
1. List the six fundamental rights provided by the Indian Constitution. Discuss
how the demand for human rights arose during Indias struggle for
independence.
2. Describe the constitutional provisions relating to right to equality and right
to freedom in India.
3. Evaluate the status of right to freedom in India..
4. Discuss the various Articles of the Indian Constitution covering the Directive
Principles of State Policy.
5. Evaluate the application of various international human rights instruments
in India.
6. Compare the provisions relating to human rights in Chinese Constitution
with those in the US Constitution.
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5.10 Answers
Answers to Self-Assessment Questions
1. (a) Fundamental Rights; (b) Ireland
2. (a)False; (b) False
3. (a) Article 14; (b) Article 19(2)
4. (a) True; (b) True
5. (a) 1993; (b) Article 9
6. (a) False; (b) False
7. (a) 1976; (b) Self-determination
8. (a) True; (b) True
9. (a) Article 38; (b) Equal Protection Clause
10. (a) False; (b) False
Answers to Terminal Questions
1. Refer to Section 5.2.1
2. Refer to Section 5.3.1
3. Refer to Section 5.3.1
4. Refer to Section 5.3.2
5. Refer to Section 5.4.1
6. Refer to Section 5.6
5.11 Further Reading
1. Jaswal, Paramjit S. and Nishtha Jaswal. Human Rights and the Law. New
Delhi: APH Publishing, 1996.
2. Begum, Syed Mehartaj .Human Rights in India: Issues and Perspectives.
New Delhi: APH Publishing, 2000.
Unit 6 Child and Human Rights
Structure
6.1 Introduction
Objectives
6.2 The Rights of Children
6.3 Convention on the Rights of the Child, 1989
6.4 Human Rights and Female Foeticide
6.5 Sexual Exploitation, Forced Labour and Child Labour
6.6 Child Prostitution
6.7 Illegitimate Child
6.8 Delinquent Child
6.9 Human Rights Violation of Street Children
6.10 Parenting and Child Health
6.11 Summary
6.12 Glossary
6.13 Terminal Questions
6.14 Answers
6.15 Further Reading
6.1 Introduction
In the previous unit, you studied about the Indian Constitution and human rights.
In this unit you will study about child and human rights. Children are the most
vulnerable members of society and therefore entitled to special care and
assistance. Like adults, children also have a status in society, as rightful
members, and most importantly, as human beings. As per Article 6 of the
Convention on the Rights of the Child (CRC), Children have the right to live.
Governments should ensure that children survive and develop healthily. The
implementation of the Convention on the Rights of the Child (CRC) represents
true progress because it serves to transform the public policy debate about
children. Children also have the right to life. This is a universally recognized right
for all human beings. It is a fundamental right which governs all other existing
rights. In its absence, all other fundamental rights have no reason to exist. The
childrens right to survival is of prime importance according to the Convention.
In this unit, you will also study about female foeticide, laws regarding sex-
determination, sexual exploitation and child labour. The right to abortion is
considered by many women as an absolute and inalienable right, equivalent to
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right over ones own body and reproduction thereof. However, this view is
debatable as once a foetus is conceived, it has the fundamental right to live.
Many laws have been passed by the Government with a view to prevent female
foeticide. This is one of the many ills still prevailing in Indian society. Another ill
that plagues society is child abuse. Child prostitution has far-reaching
consequences on the child, physically, morally and psychologically. There is an
urgent need to address this issue and rehabilitate such children. Health-wise,
India has a long way to go as its health records are really poor as compared to
other countries. As per the research conducted by UNICEF, more than 2 million
children die in India from diseases that could have been easily prevented. The
Infant Mortality Rate (IMR) stands at a shocking 63 deaths for every 1000 live
births.
Objectives
After studying this unit, you should be able to:
Identify the rights of children
Explain the complete perspective of child rights in the context of the Indian
Constitution.
Discuss the Convention on the Rights of the Child
Recognize that the right to life is a fundamental right which governs all
other existing rights
Evaluate the practice of abortion as a right women can enjoy
Discuss female foeticide as a social custom
Discuss child labour as one of the biggest problems especially in India
Classify child prostitution as a rigorous case of child labour
Explain human rights violation of street children
Examine the salient features of traditional Indian parenting
6.2 The Rights of Children
Like adults, children also have a status in society, as rightful members, and
most importantly, as human beings. When thinking about the entitlement of
children, the most critical question to ask is whether children have any rights.
Do they have the same rights as adults, or are they different? Given their
vulnerability, should they be given special rights? On the other hand, should
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their inability to make informed decisions exclude them from certain rights that
are given to adults? Almost all nations and international bodies recognize children
as special category in accordance to rights. Thus, United Nations Convention
on the Rights of the Child has been supported by almost all the countries. As
per the convention, children are entitled to a number of rights. For instance,
children have the right to life and right to express their opinions in matters that
are related to them.
At this point there is a need to distinguish between positive rights, rights
recognized by law, and moral rights, those recognized by society as being morally
obligatory. Having positive rights does not automatically guarantee that children
have, or should have, moral rights. The debate on the nature, quantum and
scope of rights that children must be entitled to has for long been the subject of
philosophical debate and consideration. A study of these debated, given an insight
into the very value and nature of rights as well as the moral status of children
themselves.
There is no denying that childrens moral status should be protected and
secured, and this makes it important for us to answer the simple question that if
children are to have any rights at all, what should such rights be? Some argue
such rights can be secured by us, as adults, discharging our obligations and
duties towards them. Others say that much as certain things are not done to
animals, similarly there are things that we ought not to do to children as well,
without necessarily thinking of either of them having any rights as such. However,
children and animals cannot be compared, after all children are human beings
and they should be given some basic rights that are given to humans beings.
On the other hand, children cannot possess the role-dependent rights
that adults have, which are rights, required or assured, for carrying out or playing
a role. Thus a professor has rights that students do not, a politician has rights
that those not-elected to office do not and owners of companies have rights that
employees do not. This strand of thought is interesting as it envisages a potential
situation where adults too may have no more rights than children owing to the
fact that they can not play roles that are related to the role-dependent rights.
Nonetheless, we cannot assume that children have all the fundamental
human rights that adults are entitled to. Primary among this is the right to self-
determination or choice of say, marrying, work/employment, seeking education,
living in another city, and so on. It is these fundamental rights that are denied to
children, and even though parents/guardians can overrule this choice of the
children, their right to choice does not completely disappear. If children are not
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given certain human rights, it does not necessarily mean that they are not
considered humans. For example, no one argues that like animals, children can
be denied the right to life itself; in fact most people will insist that children should
be protected against harm from adults. On the other hand, it is fairly prudent to
insist that children should not get the right of complete self-determination. John
Locke argues that a person is one who posseses moral agency and has the
ability to be responsible for his/her actions, and in that respect children may be
excluded from being classified as persons. However, stringent or more relaxed
conceptions and definition of personhood at different stages and age, include or
exclude children. Nevertheless it cannot be denied that children are humans
and are thus entitled to a definite moral regard.
The Rights and the Welfare Approach
A complete\ perspective of child rights has been given in the Constitution of
India. A number of international legal instruments, such as CRC, have also been
signed by India. However, the government of India concentrates on the well-
being of children rather than their rights because implementing rights can have
political implications. This makes the work of child right activists challenging as
they have to work really hard to promote and protect rights as positive social
values.
Welfare then remains the main focus of governmental activities in this
regard. India will have to take up a policy that tackles the provisions of the CRC.
Undoubtedly, the draft of National Policy (Charter) for Children, which the
parliament has passed recently, is insufficient since the complete range of rights
are not dealt with in this draft and no reference to the CRC has been made.
6.2.1 Child Rights From the perspective of an adult: A Controversy
There is a lot of controversy regarding the laws made for children. These laws
are neither child-friendly nor child-centred as these have been formulated from
adultsperspective. Moreover, they are not in tandem with the CRC and do not
protect the interests of children.
The definition of a child in the Indian legal and policy framework is itself
problematic. According to the CRC, a person below 18 years of age is termed a
child but many laws do not adhere to this definition completely. These laws use
different age groups to define a child. A close examination of these laws shows
that only the Juvenile Justice (Care and Protection) Act 2000 resonates with the
CRC.
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Most of the laws that have been formulated for children are not child-
centred. For instance, a difference between legitimate and illegitimate children
has been given in the family laws. The basis of this differentiation is the relationship
or marital status of childs parents. Why should a child be treated badly for the
decision taken by his parents? The condition of a child who is born out of rape is
even worse. He is considered disgraceful and illegitimate by society as well as
law.
6.2.2 Approach of Constitution of India on Child Rights: Critic
Access to health
Owing to the privatization of health services, the health of poor children has
become a matter of serious concern. Environmental degradation and pollution
have made the situation even worse. Not only this, child labour has worsened
the situation as many children are made to work in miserable as well as unhygienic
environment.
In India, many children die of malnutrition, starvation and of diseases which
could have been prevented easily. As per the records of UNAIDS, more than
1,70,000 children are suffering from HIV/AIDS in India (2001). These children
are usually ostracized by their society and their family. Rather than taking actions,
our government is found fighting over the number of infected people in our country.
Juvenile diabetes is another problem which many children of our country are
fighting with.
According to the Constitution, health care is the duty of the State but the
issue of public health has not been dealt with in any law. The Reproductive and
Child Health Programme of the Ministry of Health and Family Welfare deals with
childrens health. However, the primary focus of this programme is to ensure
reproductive health, safe pregnancy and delivery, and child survival. The primary
health care system addresses other health needs of children, but such needs
are not addressed specifically or separately.
The population policy in the states have also proved children unfriendly.
According to this policy, people who have more than two children are not allowed
to take up elected positions in government. Due to this, many parents who aspire
to be politicians either disown their children or leave them to be adopted by
someone else.
In National Health Policy 2000, children are not mentioned under a separate
category. This shows that enough attempts have not been made to take care of
childrens health in this policy.
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Education for all
The government has not been able to fulfill this promise as yet. A close
examination of the State policy related to education shows that it is not going to
bring equality among all children. While some parents can afford the expenses
of sending their children to big private schools, poor parents would have to
contend themselves by sending their children to non-formal schools where
children are likely to be taught by untrained teachers. According to many
educationists, the new curriculum framework designed for these children does
not cover complete syllabus.
The 93rd Amendment Bill, passed as the 86th Amendment to the
Constitution, has made education a fundamental right of children. However, this
bill focuses on the education of children from 6 to 14 years of age. A close
examination shows that children between 06 years are deprived of education.
Many educationists believe that these years are extremely crucial for childrens
education as these are considered foundation years of education.
The dropout rate of school children has always remained a matter of
concern. Many studies show that corporal punishment given by teachers is the
major cause of high dropout rate. Many states have enacted laws to ban corporal
punishment and National Education Policy 1992 does not allow corporal
punishment in the education system yet many teachers have been found using
violence against their students. Corporal punishment violates Child Rights as
well. Teachers should be made aware of the ways in which corporal punishment
proves detrimental for the growth and development of children.
A child named Debu voiced in one of the workshops for children Dont I
have a right to be called by my name. Why am I called a langda (lame)? This
helped many children realize that children with disabilities also have this basic
right to be called by their names and that these children are deprived of many
opportunities which are important for their survival and development.
Thus, children with disabilities should not be denied their basic rights like
personal security, economic security, education and health care. Persons With
Disabilities (Equal Protection of Rights and Full Participation) Act, 1995 deals
with the rights of disabled people.
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Exhibit 1
Facilities in civic schools abysmal
26 December 2011
The CAG (Comptroller and Auditor General) has laid bare the state
governments abysmal record in facilitating primary education to its citizens.
In its report testing the effectiveness of six municipal corporations (MCs) in
providing primary education, the CAG pointed out that the drop-out rate of
primary schools students run by these MCs rose from substantially 9% in
2004-2005 to 34% in 2008-2009. The six MCs are Amravati, Aurangabad,
Mumbai, Nagpur, Nashik and Solapur. In Nagpur MC, 86 schools closed down
during 2004-2009 due to a substantial drop in enrolment of students.
The state government has not yet responded to CAG queries on this issue.
Out of 73 schools in these MCs, 11 schools in Aurangabad, Nagpur and
Nashik had no toilets while eight schools had no separate toilet facilities for
boys and girls. In Mumbai, 14 schools of 28 schools surveyed did not have
refilled fire extinguishers while all the six schools surveyed in Solapur had no
fire extinguishers at all.
The report found that the BMC has spent only 9% or `3,330 crore on education
from its total expenditure of `35,747 crore in 2004-2009.
In an indicator to inadequate attention towards welfare of students, these
MCs have spent an average nine percent of their total expenditure incurred
during 2004 to 2009 on education. For example, the Brihanmumbai Municipal
Corporation, the richest civic body in the state has spent only nine percent or
`3,330 crore on education from its total expenditure of `35,747 crore. Nashik
MC has spent five percent or `113 crore of their total expenditure of `2,195
crore.
The inadequate allocation thus gets reflected in lack of basic facilities like
toilets, playgrounds provided in these MC run schools. The CAG report said
commode toilets, which cannot be used by physically handicapped students,
have been constructed by MCs while many schools do not have green boards
which reduces stress on eyes of students.
1,004 sets of textbooks and 449 sets of workbooks are lying undistributed in
15 schools run by Amravati, Nagpur and Nashik MCs. 9,359 textbooks and
workbooks were in turn distributed to ineligible students of 43 schools run by
these MCs (barring Mumbai, the CAG report said.
What takes the cake, says CAG officials, is that the state government
distributed no grants for physical education between 2004-2009. Considering
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sports development is an essential component of Human Resource
development, sports boards have not yet been set up. Even the percentage
of funds provided by these MCs for sport activities ranged from nil to 0.56%
of their total expenditure incurred for education, said the report.
Adapted from: http://timesofindia.indiatimes.com/city/mumbai/Facilities-in-civic-
schools-abysmal/articleshow/11248144.cms
Accessed on: 26 December 2011
Adoption of children
Adoption is considered a form of alternative family care. However, even today
people adopt children keeping in mind their religion and the religion of the child,
in case the religion of the child is known. Moreover, adoption is not allowed in all
religions.
According to the Juvenile Justice (Care and Protection of Children) Act,
2000, all people can adopt children irrespective of their religion. However, baby
shops running at a large-scale and selling of children from poor families has
made the situation worse. A lot of things should be kept in mind to make sure
that the process of adoption is legal so that it does not become a method of
child trafficking.
6.2.3 Best Interests
Many people regard children as not having any rights nor the freedom to chose
to live the way they want to. Due to this, children are not left on their own. According
to the child welfare law and policy, it is important to promote the best interests
of a child. As per the Article 3.1 of the United Nations CRC, In all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.
Article 12.1 of the CRC states, States Parties shall assure to the child
who is capable of forming his or her own views the right to express those views
freely in all matters affecting the child, the views of the child being given due
weight in accordance with the age and maturity of the child. The principle of
best interest and childs right to be heard have been explained in Section 8 of
CRC. The definition of the principle of best interest differs according to the
matters that are being discussed, opinions that are being given weight, and
amount of weight given to these matters and opinions.
As far as the term weight is concerned, the words paramount and primary
have been used with the or a. These articles describe the amount of weightage
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that should be given to a childs interests or best interest. The four possible
weightages are:
(i) The paramount
(ii) A paramount
(iii) The primary
(iv) A primary
In addition to these four considerations, there is one more consideration,
that is, the childs choice. Thus, a childs choice as well as childs interests
should taken into account while taking decisions of a child. However, the question
then arises as to its extent.
The following statament explains the difference between paramount and
primary (Section 8 of CRC):
A consideration that is paramount outranks and trumps all other
considerations. It is, in effect, the only consideration determinative of an
outcome. A consideration that is primary is a leading consideration,
one that is first in rank among several. But although no considerations
outrank a primary consideration there may be other considerations of
equal, first rank. Furthermore a leading consideration does not trump
even if it outranks all other considerations. A primary consideration is not
the only consideration determinative of an outcome.
According to this, (a) and (b) are equivalent and actual disparity is between
a paramount consideration that exceeds other considerations and a primary
one that need not. Thus, the actual choice is to be made between options (a)
and (d) and the only consideration is a childs interests or best interests. There
was a debate regarding the version that should be included in the Uinited Nations
CRC and finally the weaker formulation was agreed upon.
We may talk of a child or of children in general. We need to consider
how a particular child is affected in a policy and how actions taken in his/her
case affect other children. A policy can have unwanted repercussions. Thus, it
is reasonable to interpret that the use of word children in the formulation of the
Best Interest Policy (BIP) would mean that the policy is applicable to all children.
This may not be in the best interest of all children.
The BIP began when the judges had to make decisions regarding the
custody of a child in the cases of custody disputes. In such cases, each case
had to be handled differently to find the most suitable arrangement for the child
. Thus, the BIP continuously uses the singular term child.
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There are two important areas where the BIP has functioned. One relates
to decision making when talking about a child who is ill. The second relates to
the custody disputes due to the divorce of a childs parents. When no consensus
is reached regarding the raising of the child, the matter goes to court. Beyond
these, the BIP also has various responsibilities regarding policies and laws related
to children as mentioned in the United Nations CRC Article 3.1.
6.2.4 Child Survival
It is important for a child to have the right to be heard. Its value lies in the fact that
it is important to express ones opinions. To be able to voice our concerns on
political matters is important to us. This becomes even more relevant if our
opinions lead to the change we desire. We do not want to be told to keep quiet
and at the same time, we do not want our opinions to be considered useless.
Generally, there are some issues which require the voicing of our concern
and in such cases we should be allowed to speak. Our opinion, in such cases,
carries credence and may influence the final outcome. These issues are dear
to us and it is important to us to speak our thoughts freely about this. In some
cases, the action taken should not be reflective of the childrens views and ideas.
They have only a consultative role. The final verdict may be based on the clearer
picture that is obtained when children, in fact, elucidate those interests.
In other instances, it is also important to give due respect to a childs
expression of his opinion even though this will not affect the outcome. Just the
fact that the child is capable of expressing his view is valuable as he has the
right to be heard. It is important to listen to a child carefully as his opinion may
influence what is done. The child, however, does not have the liberty to make his
own choices even in matters affecting his interests. A representative of the child,
or a guardian has the power to make decisions for him. The right to be heard
gives a child a chance to convince the person who takes decisions for him/her.
The child can convince the adult to take the decisions which he would have
taken had he been allowed to take decisions for himself.
Article 12.1 of the United Nations Convention on the Rights of the Child not
only gives children the right to voice their opinion but also gives them the
assurance that their opinions would be given due weight in accordance with
their age and maturity. What then are childrens participation rights? How is it
different from their protection rights? Participation rights give them the right to
be the agents of their own lives and protection rights protect them from violent,
abusive, cruel or exploitative treatment.
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Article 12.1 also gives justification for these rights. Understanding how to
practically implement such rights is not without its problems. There is some
concern in understanding the meaning of the right mentioned in Article 12.1.
One of the popular British legal judgement known as the Gillick case (1986) is
helpful in understanding such concerns. Under this case, a mother named
Victoria Gillick was unhappy with one of the advisory circulars given to the doctors.
Under this circular, doctors were allowed to counsel girls under the age of 16
regarding sexual matters. They were also allowed to provide them contraceptives
without the permission of girls parents. Victoria Gillick was unhappy with this
circular and tried to take the help of the court to get this circular declared unlawful.
In the final judgement, the British Home of Lords declared that the circular was
not unlawful. Lord Scarman, one of the Law Lords said that:
The underlying principle of the law is that parental right yields to the
childs right to make his own decisions when he reaches a sufficient
understanding and intelligence to be capable of making up his own mind
on the matter requiring decision.
Segregating children and adults in accordance to the rights possessed by
them may imply different things for different people. It can be said that children
enjoy welfare rights as against liberty rights which adults enjoy along with these.
Adults also exert the right to let their childhood influence the kind of person they
will grow up to be. In the light of this statement, we see that the scope of the
principle of best-interest is restricted.
If the best interests of a child are interpreted from an adults point of view,
the view is likely to biased. Many people feel that a childs right to be heard would
help children but the fact is that this right would be a substitute not a complement
to the child right to take decisions.
Self-Assessment Questions
1. Fill in the blanks with appropriate words:
(a) The _______judgement came into being because a mother was
unhappy with one of the advisory circulars given to the doctors
(b) The ___________of the Ministry of Health and Family Welfare deals
with the health of children.
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2. State whether the following statements are true or false:
(a) Children enjoy welfare rights as against liberty rights.
(b) Education for all is a promise that the government of India has been
able to fulfill.
6.3 Convention on the Rights of the Child, 1989
CRC is the first legally binding international instrument that advocates the rights
of children. World leaders, in 1989, determined that it was important to have a
special convention for children as they often required special care and protection
which was different from what adults needed. The leaders also felt that it was
important to make the world aware of the fact that children are also entitled to
certain rights.
The Convention has described child rights in 54 articles and 2 Optional
Protocols. It discusses the basic rights that all children have:
1. The right to survival
2. To develop to the fullest
3. To protection from harmful influences, abuse and exploitation
4. To participate fully in family, cultural and social life
The four core principles of the Convention are
1. Non-discrimination
2. Devotion to the best interests of the child
3. The right to life, survival and development
4. Respect for the views of the child
All the rights indicated in the Convention are fundamental to human dignity
and are important for the holistic development of a child. Standards have been
set by the Convention in various services such as health care, legal, education,
civil and social. National governments have agreed to carry out the responsibilities
of the Convention by ratifying or complying to it for the protection of child rights.
They have agreed in front of the international community that they can be held
responsible for this obligation.
The right to life is a universally recognized right for all human beings. It is
a fundamental right which governs all other existing rights. In its absence, all
other fundamental rights have no reason to exist.
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The right to life, for children, means the option to be able to live with the
prospect of developing and growing up into adulthood.
This right comprises two essential aspects: the right to have ones life
protected from birth and the right to be able to survive and develop appropriately.
Every person has the right to life. Since birth, every individual is considered a
living being who is in need of protection. The dignity of each person must be
respected. This follows from the protection of ones right to live. Therefore, all
children should have the right to be protected.
The right to life is the formal prohibition against intentionally causing the
death of a person. In the context of children, this right means that children will
not be awarded death penalty. Also, through condemning the acts of infanticide,
lives of children will be protected. This right also ensures that children have
favourable conditions for growth and development. Children, then need a
combination of suitable healthcare, a balanced diet and a quality education along
with a healthy environment to thrive well, physically or mentally.
It is the role of countries, beyond the responsibility of parents, to ensure
that children have the possibility to develop in a healthy and normal fashion,
under all circumstances for example peace, war, natural catastrophe. They must
guarantee a protection that is suitable for all children, regardless of their social
or ethnic origins.
6.3.1 Nutrition Rights
As per Article 6 of the CRC, every child has the right to life, and ensuring child
survival and the healthy development of each child is a responsibilty of the
government.
The childrens right to survival is of prime importance according to the
Convention. According to Article 24 of CRC, every child has the right to good
quality health care, safe drinking water, nutritious food, a clean and safe
environment, and information to help them stay healthy.
The CRC, on its 20th anniversary, appeals that every child should be given
basic survival tools. It is the duty of society to see that the infant mortality rate is
lowered significantly. The focus should be on wiping out malnourishment as this
is the primary cause of child mortality and high drop-out rate in schools. According
to a research, in India, appoximately 55 million children under 5 years of age are
underweight.
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Constant undernourishment before the age of 2 leads to children suffering
from diminished cognitive and physical development. This affects them even in
adulthood as they are not able to prove themselves as productive in their jobs
as their peers. In India, almost one million newborns die every year during the
first month of life and another million die between 29 days and five years.
UNICEF, in coordination with the Government, is taking steps to persuade
all women to have institutional deliveries so that both mother and baby receive
proper post-natal care for at least 72 hours.
6.3.2 Protecting the Right to Life
UNICEF is a campaigner for the protection of child rights. It helps to meet the
basic needs of children and to give them an opportunity to realize their full
capability. To fulfill this task, UNICEF works under the guidance of the provisions
and principles of the CRC. Various legal systems and cultural traditions make
up this Convention. The CRC is a set of standards and obligations that are not
negotiable and have been agreed universally. These standards have been named
human rights which governments of different countries should respect. The rights
are founded on respect for the dignity and worth of each individual, regardless
of race, colour, gender, language, religion, opinions, origins, wealth, birth status
or ability. These rights give rise to certain duties that the governments and
individuals are bound to perform without violating others rights.
Self-Assessment Questions
3. Fill in the blanks with appropriate words:
(a) The________, for children, means the option to be able to live with
the prospect of developing and growing up into adulthood.
(b) ________ is the primary cause of child mortality in India.
4. State whether the following statements are true or false:
(a) In India, approximately two hundred infants die every year during the
second month of life.
(b) Human rights give rise to certain duties that the governments and
individuals are bound to perform without violating the parallel rights
of others.
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6.4 Human Rights and Female Foeticide
In many western societies, women now enjoy extensive reproductive rights, not
only over when and if to have a child, but also over knowing the sex of the child.
On the other hand, the issue of sex-selection in developing countries, including
India, is mediated by societal pressures and cultural practices and prejudices.
These do not simply restrict the autonomy of the woman, but violate the
fundamental rights of girls and women, to life.
The right to abortion is considered by many women as an absolute and
inalienable right, equivalent to right over ones own body and reproduction thereof.
The issue of abortion itself has been open to wide debate, ridden with many
moral issues and complications. While the conception of the modern woman is
of one who chooses if and when to have children, there are those who argue
that once a foetus is conceived, it has the fundamental right to live.
The introduction of amniocentesis tests enables detection of foetal
deformities and thus allows legal abortion to those foetuses which would result
in the birth of deformed children. Some argue that this selective abortion will not
allow differently abled children to take birth, thus, save them from the countless
difficulties that differently abled people have to encounter in life. Concurrently,
this reasoning is also applied to sex-selective abortion. Western supporters
argue that since most couples wish to have less children, the choice of the
childs sex enables them with freedom and autonomy over their bodies. In
western societies where male-preference is not so pronounced, choice over
sex selection may result in a more balanced outcome. On the other hand, in
countries like India and China, a decline in the number of girls born and a
progressively worsening sex ratio points to a trend opposite to that of western
societies. However, here too pro-abortion supporters argue that sex-selective
abortion will lead to reduced growth in population and an enhancement of the
status of women in the society.
The perceived inferiority of women and their rights have been a subject of
much debate, and only at the Beijing conference of 1995, that the rights of women
were actually recognized. In spite of this, in India, 200 million of the total 300
million illiterates are girls and women. It is said that the practice of sex-selective
abortion of girls is a result of the perception that women are inferior to men and
the continuance of this belief actually lead to deterioration in their social,
educational, health and economic status. Studies estimate that nearly 50 million
girls in India are missing, simply because either they were not allowed to be
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born or were left to die as soon as they were born. This has seriously skewed
the sex-ratio and increased the problem in certain Indian societies where the
differentiation between girls and boys was not so strong previously. While this
phenomenon is as prevalent in urban areas, as it is in the countryside, it is ironic
that it is in the more prosperous states of Punjab and Haryana where sex-ratios
are the worst compared to the relatively backward states.
Fetal Rights: Various Treatments
International Law and Convention
The American Convention on Human Rights of 1969, to which 24 Latin
American countries are signatory, categorically grants rights to fetuses. The
treaty argues that beginning from the moment of conception, human beings
have rights, though the most recent binding interpretation, does not require
signatory nations to ban abortion. USA is not a signatory to the convention.
Philosophy
Natural rights philosophies presume a neurophysiological definition of
personhood and argue that fetuses gain rights when they become sentient
or self-aware. The general understanding of self-awareness would occur in
fetuses at 23 weeks, after considerable neocortical development. Previously,
self-awareness was presumed to occur at 20 weeks, which is at the time of
quickening.
Religion
The interpretation of when fetuses become persons differs across religions.
Most religions hold that personhood occurs when a fetus is implanted with a
non-physical soul. While some argue that this occurs at conception itself,
others put this at a much later stage of pregnancy, around the 20
th
week.
Those religions that do not believe in the concept of soul are silent or
ambiguous on the treatment or definition of fetal personhood.
Genital mutilation began as a traditional practice in some African states.
Similarly, female foeticide spread in India, apparently to protect women against
the inevitable violation of their fundamental right. In cases when the girl child is
allowed to take birth, she has to go through a number of prejudices. Infant mortality
for girls in India is significantly higher than that of boys. In addition, women and
girls are expected to engage in work both within the house as well as outside, in
the collection of water, fuel-wood, fodder and so on. The amount of time spent in
these activities as well as the physical strain that these activities inflict on the
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women, lead ultimately to loss of health, higher levels of illiteracy, inability to
participate in societal activities and ultimately, weakening of their status in society.
Documents and international conventions to which India is signatory such
as the United Nations declaration on Human Rights, the Committee on the
Elimination of Discrimination against Women, International Covenant on Civil
and Political Rights and the Convention on the Rights of the Child all enshrine
fundamental human rights. The primary aim of all these documents is to protect
the right to life and equality of sexes. In addition, various national laws such as
the Anti-Dowry (Dowry Prohibition) Act of 1961, Domestic Violence Act of 2005
and the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)
Act, 1994 are all aimed at empowering women through prohibition and prevention
of activities that impede their right to life, equality and non-discrimination.
However, the mere enactment of these laws is not sufficient as they have
to be strictly enforced and followed. In some instances, such as the Hindu
Property Act, which allows daughters an equal share in the property of the father,
policies have backfired. Instead of altering the entire cultural set-up which would
allow equal property rights to men and women, and thus dilute the hard earned
family property, female foeticide is seen as the easier recourse.
Many countries have held reservations on the CRC and the CEDAW as it
allows them to interpret the laws in such a way so that violation of the conventions
does not have any negative ramifications for the signatory nation. However,
wherever a right exists, it is the duty of the state, as a protector of rights, to
ensure that the right is delivered. Wherever there exist, the right to live irrespective
of sex, the state must ensure that the right is preserved and upheld. What is
thus needed is a strong intergovernmental commitment to preservation of child
and human rights, without any clauses or reservations. It is also the responsibility
of the international community to ensure that signatory nations not violate the
conventions and if at all violations occur, it must be guaranteed to citizens of the
world that they will be met with stringent sanctions.
6.4.1 Prevention of Sex Determination in India
The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act was passed by the Government of India in 1994. This act was
aimed at preventing female foeticide but it was not implemented effectively. Thus,
it was amended and replaced by the Prenatal Diagnostic Techniques (Regulation
and Prevention of Misuse) Act in 2002. The act mandated the setting up of
Supervisory Board, an Appropriate Authority and an Advisory Committee at a
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central and state level It is the responsibility of the Supervisory Board to monitor
and make amendments in the provisions of the Act. Inspection, investigation
and penalizing of offenders and defaulters is carried out by the Appropriate
Authority, aided by the Advisory Committee. The first offence may lead to fine of
Rs 10000 as well imprisonment of up to three years. The fine and the duration of
imprisonment increases for repeat offenders. The central or state Medical
councils are informed of the contravening of the provisions of the act by medical
practitioners. When conducting any prenatal diagnostic procedure, medical
practitioners have to take written consent from the pregnant woman in a local
language. The prenatal test itself may be performed only in specific conditions
such as the presence of genetic diseases in parents family history, chromosomal
abnormalities in women over the age of 36, and so on.
Self-Assessment Questions
5. Fill in the blanks with appropriate words:
(a) The _______is considered by many women as an absolute and
inalienable right.
(b) The full form of CEDAW is ________________.
6. State whether the following statements are true or false:
(a) The Pre-conception and Pre-natal Diagnostic Techniques Act was
passed by the Government of India in 1994, with the aim of
encouraging female foeticide.
(b) Prenatal tests may be performed only in specific conditions such as
the presence of genetic diseases in parents family history,
chromosomal abnormalities in women over the age of 36, etc.
6.5 Sexual Exploitation, Forced Labour and Child Labour
Sexual exploitation of a child or an adolescent below the age of 18 by an adult,
which includes payment in cash or kind to the child or adolescent or to a third
party, is defined as commercial sexual exploitation of children. According to the
International Labour Organization, commercial sexual exploitation of children is
a repulsive defilement of the human rights of children. It is compared to a form
of economic exploitation such as slavery and bonded labour. The ILO defines
commercial sexual exploitation as including, but is not restricted to, the following:
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The use of girls and boys in sexual activities remunerated in cash or in
kind (commonly known as child prostitution) in the streets or indoors, in
such places as brothels, discotheques, massage parlours, bars, hotels,
restaurants, etc.
The trafficking of girls and boys and adolescents for sex trade.
Child sex tourism.
The production, promotion and distribution of pornography involving
children.
The use of children in sex shows (public or private)
According to the UN Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children, also known as the Palermo
Protocol, exploitation includes the exploitation of the prostitution of others or
other forms of sexual exploitation, forced labour or services, slavery or practices
similar to slavery, servitude or the removal of organs. Exploitating children under
the age of 18, in activities such pornography, sex trade and other related activities,
is also recognized as constituting violence in the 2006 Report of the Independent
Expert for the United Nations Study on Violence Against Children. Adopted in
1996, at the World Congress against Commercial Sexual Exploitation of Children,
the Stockholm Declaration defines it as a form of coercion and violence against
children (that) amounts to forced labour and a contemporary form of slavery.
Child Labour: Definitions
Every work done by children, cannot or should not be defined as child labour
and thus can not be deemed liable for prosecution. Participation in work by
children is considered positive if it does not affect their health, schooling or general
personal and physical development. This includes, helping out parents in
occasional household work, assisting in family business, or engaging in work
during holidays to earn small pocket money. These activities provide children
with important life skills and experiences which help them later in their adult life
as productive members of the society.
However there are many people as well as industries which employ young
children to work under unsafe and grueling work conditions, with low and
exploitative wages. This includes working long hours in hazardous industries
such as construction and fireworks. While some of the work done by children is
difficult and demanding, others can be hazardous and ethically unacceptable.
The ILO defines child labour as work that deprives children of their childhood,
their potential and their dignity, and that is harmful to physical and mental
development. It includes work which is mentally, physically, socially or morally
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dangerous and harmful to children and which interferes with their schooling by
depriving them of the opportunity to attend school; obliging them to leave school
prematurely or requiring them to attempt to combine school attendance with
excessively long and heavy work.
Child labour also involves the enslavement of children, exposure to
hazards to health and life, and long and even permanent separation from home
and family. The classification of work as child labour is premised on the age of
the child, the type of work, working hours as well as working conditions. The
classification depends, additionally on the definition of the country itself, and
would vary within the country from one sector to another.
Child labour is one of the biggest problems plaguing India today and is
defined as the employment of children under the age of fourteen. While child
labour is banned in most countries it is not unusual to find children working in
many different places, right from small restaurants and tea-stalls to big factories
and workshops. What makes child labour attractive to the employers is its cheap
and plentiful availability as well as the lack of any organized resistance or demands
from the child which makes it easier to exploit them. The inhuman practice of
child labour, that started with the Industrial Revolution centuries ago, continues
unabated to this day in many parts of the world.
Activity 1
In 1996, the Supreme Court ordered the enforcement of the Child Labour
(Prohibition and Regulation) Act of 1986. Find out if this prohibition is being
strictly enforced in Sivakasi, Indias fireworks capital.
Self-Assessment Questions
7. Fill in the blanks with appropriate words:
(a) Child labour is one of the biggest problems plaguing India today and
is defined as the employment of children under the age of _______.
(b) The inhuman practice of child labour started with the ________
centuries ago,
8. State whether the following statements are true or false:
(a) Commercial sexual exploitation includes the production, promotion
and distribution of pornography involving children.
(b) Child labour is encouraged in many countries today.
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6.6 Child Prostitution
In earlier times, children were thought to possess gentle feelings and were treated
with tenderness, compassion and kindness. Although their psychophysical needs
were not met at that time as the mechanics of child development were not
known to people.
On the other hand, today on scientific grounds, it can be presumed that
work is a direct fulfillment of childs abilities and potentials. It also helps in the
holistic development of a child. However, when work is taken up for the fulfillment
of some needs, it hampers the growth of the child to a large extent.
Hence, child labour is described as any work that is performed by children.
It harms their health and safety, hinders with their education and keeps them
away from a number of activities that are important to their holistic development.
In this regard, child labour becomes a social evil.
The problem of child labour is a multi-dimensional. A very important type
of child labour is child prostitution. Many people feel that child prostitution includes
only girls, however, the fact is that it includes boys as well as girls. This problem
is widespread today.
Prostitution is one of the oldest profession which is looked down upon.
Women who adopt this profession are not accepted by the society and are
abhorred by them. Their life style is miserable but worse sufferers of this
exploitation are child prostitutes.
Today, a new business has come up and that is of kid porn. It consists of
photos, videos and texts of children in a sexual manner.
Child prostitution is categorized under child labour and raises a lot of ethical
problems.
Cases
Devdassi system is one of the most prevalent forms of child prostitution. Under
this form, girls (devdassis) are offered to the Goddess Yellamma and are called
the servants of God. It is said that these girls get married to the Goddess and
after this they can not marry any mortal. The most striking fact about this system
is that girls are sold by their parents at a very young age. The ceremony in which
girls are offered is organized twice every year. The main ceremony takes place
at Karnatakas Saudatti village during the second fortnight of January.
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Every year about 4,000 to 5,000 girls are devoted to the Goddess. When
these girls attain puberty they participate in a secret ceremony in which they are
sold to the highest bidder.
According to a study, one third of these devdaasis are at present working
in Mumbais cheap brothels. The most horrifying truth is that about three fourth
of these devdaasis are under fourteen years of age. Many of these girls are
from low castes such as Mahars and Matangs. Generally, these castes do not
give much importance to education and are from poor families.
In order to help these girls, government established the Prevention of
Devdassis Act. This Act was implemented in 1935 and has been amended as
well. In spite of the fact that it has been banned by the government, the system
is still prevalent in the country.In the name of invoking the blessings of the deity,
girls are first dedicated to the Goddess and then pushed into prostitution.
Following are some of the important facts in relation to child prostitution in
India:
Poverty, urbanization, unemployment are some of the the important
features that lead to child prostitution
The arrival of wealthy men from Gulf countries has increased this trade in
places like Mumbai and Hyderabad.
Often poor parents send their daughters in this profession so that they
can get get two square meals in a day.
Sometimes, orphan children are forced into this profession by their
relatives and guardians.
Some of the children get lured to Mumbai in order to fulfill their dream of
Bollywood and end up being prostitutes.
Effects
The practice of child prostitution is harmful to the health of children. It hampers
their physical, mental, emotional, social and psychological development. The
mental trauma that a child prostitute cannot be imagined.
The child prostitutes become unsuitable for other works as they are
uneducated and do not have knowledge of any other work. Being involved in this
profession, children become a part criminal world and start associating with
criminals and criminal activities as they fail to develop moral values due to their
profession.
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Law and child prostitution
In order to control child prostitution, the government has passed The Immoral
Traffic (Prevention) Act. This Act was passed in 1987. Under this Act, if a woman
is detained for the purpose of prostitution, then the person responsible for it is to
be punished with a minimum of seven years of imprisonment and maximum of
life imprisonment. Similarly, people who force children into prostitution are given
the same punishment. Previously, the Act was known as Suppression of Immoral
Traffic in Women and Girls Act (SITA). Now, the Act has been amended and has
been renamed as well. The present Act is more effective as well as stringent.
The definition of prostitute itself has been changed. It now includes both sexes,
thus, young boys who were forced into this profession can now be saved due to
this Act.
In this Act, the victims have been categorized under three groups: children,
minors and majors. According to this act, children are those who are up to 16
years of age, Those who fall in the age group of 16 to 18 years are considered
minors and people who are above 18 years of age are termed as majors.
The punishments that are given for these offences differ in severity. A
person who is responsible for the detention of children or minors for the purpose
of prostitution is given a severe punishment.
As per the new Act, a special police officer needs to be appointed for the
investigation of offences that have inter-state ramifications. In cases when
women are arrested from a brothel, only a female police officer can interrogate
them. However, if there is no female officer present in the police station, then a
male police officer can interrogate the arrested women in the presence of a
female representative of a documented welfare institution or organization. In
case a search or a raid needs to be made in a brothel, at least two police women
need to accompany the police officers.
Rehabilitation
It is extremely difficult to rehabilitate prostitutes as people shy out from helping
these women. They feel that these women are disgraceful and have been
following a disgraceful profession. When prostitutes are rescued, police officers
generally send them to remand houses or protective homes. These places are
not managed properly. Moreover, after rehabilitation these girls are given a meagre
sum of `75 as an aid by the government. Therefore, they generally tend to think
that their previous life was much better and so when at times their pimp come to
claim them in the form of a brother or a sister they happily go with them to their
old life.
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Conclusion
The Indian society has not just ignored the minor girls who are being forced into
prostitution. Thus, child prostitution is still exixting in our society in spite of strict
laws.
Child prostitution has increased due to the increased demand for virgin
prostitutes as there is a myth associated with them that sex with them cures
venereal diseases. It is important that our society at large revolts against it so
that this trade can be stopped. The government should provide more funds for
their rehabilitation and private charitable institutions should also contribute towards
it. It should very strictly punish those people who are found guilty of detaining
children, majors and minors for prostitution. This practice can only be stopped if
our society and government join hands to fight this menace.
Self-Assessment Questions
9. Fill in the blanks with appropriate words:
(a) Child labour is described as any work that is performed by _____.
(b) In order to control child_________, the government has passed The
Immoral Traffic (Prevention) Act.
10. State whether the following statements are true or false:
(a) The arrival of wealthy men from Gulf countries has increased
prostitution in places like Mumbai and Hyderabad
(b) Girls who are offered to the Goddess Yellamma are known as
Devdassis.
6.7 Illegitimate Child
The matter concerning illegitimate children is a grave moral problem with
distressing consequences on our society as well as economy. A child who is
termed illegitimate goes through a trauma throughout his/her life in spite of the
fact that he is not responsible for his illegitimacy. According to a study conducted
in India, approximately one out of six children born in India are illegitimate.
The basic question is who is an illegitimate child. A child who is born as a
result of sinful sexual conduct is termed as illegitimate. That is, the parents of
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the child are not married to each other. So, an illegitimate child does not get that
much of respect in the society as a legitimate child does.
Nowadays, a new debate has been going on about the illegitimate child.
This problem has grown to new extent due to the so-called new morality, which
gives permission to all kinds of sexual relationships without any limit. Therefore,
as a result, many children are born to parents who are not married to each
other. The government has provided homes for the unwed mothers; and by
opening these houses the government expenditure has increased a lot as it has
to take care of mothers as well as children. The matter of concern is that most
of these mothers very young and are in their teens. Apart from these many
unborn children are murdered every year by legal or illegal abortion.
There is no way to measure how prevalent adulterous relationships are in
the society. Now, there is lesser stigma, attached to children who are not born
of legal marriages. It is due to certain changes in the mindsets and thoughts of
people:
Society does not look down upon such cases.
It is not considered to be non-religious to many people.
There is lesser emphasis on moral issues among larger sections of the
society.
Thus, to question the legitimacy of a child who is not born of legal marriages
is really uncalled for as it is not the fault of the child. The child is not responsible
for being born of such relationships, therefore, in the right sense, the child is not
illegitimate.
To look at each child as a gift from the divine, irrespective of how the child
was conceived, is how such children should be looked at. When two people are
involved in adulterous intercourse and a child is born of such union, it is important
to see the repercussion of such an act and thus treat the child with dignity.
6.8 Delinquent Child
Even though India as a country covers 2.42 percent of the planets land mass, it
is home to 16 per cent of the planets population. In India, the number of children
working to earn a living is amongst the highest in the world, and it also has the
poorest sex ratio in the world. Even though the India Constitution secures the
basic rights of all the children of this country, still there is a lot of exploitation of
children based on caste, religion and ethnicity.
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Some of the basic procedures like registration of birth of each child with
State officials remains a far cry and this keeps many children away for enjoying
fundamental rights.
The illiteracy rate is also among the highest in India as compared to the
rest of the world. One often gets to hear news of children dying of malnutrition
and lack of food despite there being enough lying in the food storages of the
Government. The male female ration is biased in favour of the male child and
child trafficking, sacrificial ceremonies of little children and child sexual abuse
is also rampant in India. Most of the abuse and exploitation metted out to children
go unreported in the media. The total lack of empathy towards such rampant
exploitation is in a way passive participation by all Indians.
In order to comprehend childrens human rights, children of all sections of
the society need to be taken into account. Addressing only a few sections actually
keeps us away from main issues. It is not only in economically backward families
that child rights are violated, but also in well off homes of middle class and
richer families. The nature of abuse and exploitation might differ though.
The transformation of India, economically and politically need to be taken
into account before any conclusions is drawn regarding this issue. Before any
observation is made or any conclusion is reached in this area, factors such
gender, caste, religion, the economic changes taking place in the country, all
must be taken into account. Since all this determines the extent and nature of
violation of children in the society.
All children of the country cannot be put into one category and there exists
diversity based on social, economic, regional and other human factors. Factors
such as physiology or psychology of the children are also important factors that
need to be considered. All these factors determine the extent of the childs
vulnerability to exploitation and abuse. General bias towards the male gender
is very high in India, compared to many other countries. When the child is female
and facing poor social, economic and physical conditions, the extent of
vulnerability is higher. To be sensitive to the issues of gender is therefore
important in order to analyse the condition of childrens rights in India.
The Juvenile Justice (Care and Protection) Act, 2000 was enacted by the
Government when many weaknesses were found in the erstwhile Juvenile
Justice Act, 1986. However, this act was passed without any serious discussions
and this is a cause of worry among many sections of the society who work for
child rights. The state in 2003 proposed many amendments to the law governing
child rights, but these were questionable and did not satisfy the bodies working
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for child welfare. Now, the law is presently under review with a Parliamentary
Standing Committee.
The Child Labour (Prohibition and Regulation Act) was enacted in 1986,
to alleviate the problem of child labour in India. The Act by making a distinction
between certain jobs as dangerous and non-dangerous has failed to tackle the
areas in which children continue to be employed and exploited since these
industries do not come under hazardous industries as mentioned in the Act.
Thus, it leaves out a large section of the children who are employed as labourers
but do not work in industries in which children are prohibited from working.
Children continue to be employed in eating places, hotels and as domestic help
and there is rampant exploitation of children in these areas.
The menace of child trafficking continues to be a major cause of child
rights violations in India and in other countries. There is very little information
available to prove the gravity of this problem despite many organization and
bodies describing child trafficking as a rapidly growing crime. Children are sold
for various reasons other than sexual activities and those reasons too need to
be examined seriously.
Self-Assessment Questions
11. Fill in the blanks with appropriate words:
(a) It is estimated that approximately one out of _____children born in
India are illegitimate
(b) An ________child is any child born out of wedlock.
12. State whether the following statements are true or false:
(a) The embarrassment and scandal of having a child out of wedlock
and being sexually immoral, has been reduced to a great extent due
to acceptance of society of this sin.
(b) Child trafficking is not considered as violence against children.
6.9 Human Rights Violation of Street Children
India gives shelter to millions of children who are poor and destitute. Most of the
children are ill, emaciated and uneducated, and as they live with miserable
families who cannot take care of them, they are highly neglected. Several children
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are even forced to work at an age in which they should go to schools. Many of
them do not have a shelter and they are forced to live on roadsides due to
breakdown of their families, loss of their loved ones, or even because of being
unable to tolerate the abuses inflicted upon them by parents, relatives and
employers. Besides, in some instances, globalization and economic liberalization
have intensified the helplessness of such children. The so-called economic
development of India has been successful in creating more wealth in the hands
of a few privileged people which led to unequal distribution of wealth. This process
has not been able to tackle the social evil of poverty and instead has caused
more disparities among millions in the society.
The task of accurately putting a figure on the number of children who live
on the streets of the world is not an easy task. Surveys that gather data from
samples taken from school and domestic households often leave out street
children because these surveys are based on lifestyle of people and street children
do not fall in any of the prescribed categories. The United Nations Childrens
Fund (UNICEF) and the World Health Organization (WHO) have reported a
growth between 100 to 150 million in number of street children in the world.
India is among one of the countries with the largest number of children
living in the streets. In the year 1994, UNICEF, reported that India has 11 million
street children, some other organization have estimated the figure as 18 million.
The sex ration of street children has been determined as being two male children
for every three children. The age group that constitutes the major group is within
the age of 11 to 15 years and there is also a large number of children in the age
group of six to ten years old.
According to various researches, most of the children who live on the
streets of India are not really homeless in the true sense of the word as 90% of
them do have families back in rural India and have chosen to run away from
their homes and be self reliant. Children, those who runaway from homes in
villages and other rural areas, either stay at railway stations and look for work or
resort to begging. Most of these children suffer from diseases, malnutrition and
also live under miserable conditions without proper food. These children are
found doing a variety of work like working as cleaners of train boggies, or dishes
at platforms or as rag-pickers. They work as newspaper vendors, some polish
shoes for money, or do odd jobs at hotels and local businesses. Most of these
children are vulnerable to exploitation by people involved in organ trade, drugs,
in child trafficking, and sexual activities.
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Juvenile Justice System in India
The Juvenile Justice (Care and Protection of Children) Act was passed in 2000
as an improvement to the erstwhile act of 1986. The Act ensures to protect and
reduce the repercussion of economic backwardness, poverty, criminal activities
and underdevelopment on children. Besides enumerating the duties of
government agencies towards childcare and welfare, the Act has tried to address
issues to prevent crime towards children. The Act also deals with issue of child
delinquency.
The Act has divided children who are addressed by this Act into two
categories.: One includes children those who are in conflict with the law and
the other who are in need of care and protection. In need of care and protection
includes minors:
Those who are found begging on the streets
Those who are homeless
Those whose parents have been declared unfit because of their poverty
or lifestyle
Those who have been sexually and physically abused
Those who are believed to be at high risk of being abused in the future
Most of the street children are covered under the category of in need of
care and protection. And those who are in the category of in conflict with law
are those who violate some Act of Indian Penal Code.
Under the Juvenile Justice Act, juvenile homes have been authorized to
be set up in order to take proper care of delinquent children and other neglected
children. Deliquent homes with temporary holding facilities have started to look
after children arrested for crimes by police or for those children who were found
in negligent conditions. In these homes, children who were in conflict with the
law are housed till their case come up for trial. If their crimes are proved then
they are sent to special homes set up from children who are convicted of crimes.
Such a home exists in Hyderabad. The children belonging to the category of in
need of care and protection stay in these Observation Homes till the process of
investigation regarding their parents and family is completed. In case where the
investigation finds that the parents are no longer alive or are non-traceable or do
not want to have child back with the family, provisions are made for taking care
of the childs boarding, lodging, education and any other training by the Juvenile
Welfare Board.
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There is often a lack of proper and effective implementation of the Juvenile
Justice Act. It is duty of the state and local administration to ensure that the Act
is effectively implemented as it was a law enacted by the Central Government.
Despite the Act having been passed many years ago, some states have still not
incorporated it in the state legal systems. No step has also been taken to make
the law effectively implemented. The wide gap in the legislative implementation
of the Act shows its inability to deal with the issues of street children in India.
The Act has included both children in need of care and protection and
children in conflict with law under the same Act and actually made both come
under criminal jurisdiction. This in itself is a problem. The Juvenile Homes take
care of children from both categories together and thus subject younger children,
who are there on account of neglect, to older children who have committed
crimes. Therefore, the law does not differentiate between the two categories in
the treatment they are subjected to. The Act only suggests that children of both
categories be kept in detention in these homes as a rehabilitation process.
Self-Assessment Questions
13. Fill in the blanks with appropriate words:
(a) _________ ranks on top in terms of the number of street children in
the world
(b) The Juvenile Justice (Care and Protection of Children) Act was
approved in ________ with an aim to reform the 1986 Act
14. State whether the following statements are true or false:
(a) UNICEF and WHO have analysed that steady growth of the number
of the street children all over the world can be estimated between 50
and 120 million
(b) Juveniles in conflict with the law are those arrested for violating the
Indian penal code.
6.10 Parenting and Child Health
In India, culture and religion play a vital role in shaping traditional Indian parenting.
Indian parenting aims at complete development of children, with a focus on the
cognitive, social and spiritual devlopment. Joint family system plays a great role
in the upbringing of children as children come in contact with various members
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of family like grandparents, uncles and aunts, and cousins. All these members
help in inculcating important values in children. In addition, a child develops a
strong bond with his mother due to practices like breast feeding. This practice
not only helps in providing nourishment to child but also brings mother and child
closer to each other. Cuddling is another gesture to express love and affection
towards the child, which further strengthens the physical contact between the
child and the parents. This strong emotional bond between the child and the
Indian parents is generally established during early childhood, and therefore is a
lifetime bond.
The traditional Indian parenting is value-based parenting. Here, social
relationships respect authority, which is an expected behavioural norm. Indians
are obliged to be dutiful towards their family, parents, children and the society.
They learn to respect and care for their parents. Children learn the values of
mutual understanding and interdependence since they are taught to see their
countrymen as members of their extended family. Children are encouraged to
carry forward the name of the family with pride and honour, and fulfil their duties
not only towards the family but also towards the society. From the very beginning,
the children are instilled with the norms of personal chastity, modesty and social
behaviour. Moreover, the practice of self-control is an integral part of character
development.
However, the traditional Indian parenting also has attracted a lot of criticism.
According to several critics, Indian parenting is authoritative in nature, which
curbs the independence and self-sufficiency of an individual. We know that Indian
parenting stresses on interdependence and the duty towards family and
community. This is seen as unfavourable to the development of self-identity of
an individual. Moreover, the characteristic of over-protectiveness in Indian
parenting is seen as restraining personal development and self-confidence.
Indian parenting also involves corporeal punishment, which hampers the growth
of a child in certain aspects.
Regardless of the criticism, there is a great deal to learn from traditional
Indian parenting. Some of the culturally appropriate parenting practices, which
are generally adopted by Indian parents are:
The emphasis on holistic growth and development of children
The importance of development of childs character
The stress on modesty in a childs behaviour
The importance of society as an extended family
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Child health
On an international level, the WHO has estimated that 30 per cent of children
less than 5 years of age are underdeveloped. In addition to this, weight of 18 per
cent children is low for their height while 43 million children are overweight. It
has been found that the lives of 1.5 million children under the age of 5 can be
saved every year through optimal breastfeeding. Every year, almost 9 million
children die due to diseases and infections, which can be easily prevented such
as diarrhoea. This disease also leads to malnutrition in children, thus, becomes
a cause of many other diseases in children.
In India, 84 per cent of all health care expenditure is unaffordable, due to
which several families are at risk of falling into poverty. This further results in
millions of children being affected by malnutrition. In India, every third child is
malnourished, which further leads to the increase in infant and child mortality
rates. The most affected are the marginalized groups, such as women and
children of scheduled castes/tribes, who face starvation deaths due to
discrimination in Indian community. Many muslim children are also
underdeveloped and underweight. Though there are a number of health care
services provided in the country but children with mental health ailments and
HIV/AIDS are not provided sufficient care. Differently abled children are also
neglected to a great extent.
Tuberculosis and anaemia are common diseases that pose a threat to
the health of children in India. Moreover, the polio eradication programme in
India is also regressing. Health indicators differ greatly across the country due
to varying social sector budgets. Kerala has only 21 per cent underdeveloped
children, while in Uttar Pradesh, 46 per cent of the children have been reported
to be stunted. Moreover, many women are not able to avail health care services
due to discrimination in society. Besides, only 1 per cent of the total health budget
is spent on providing services related to mental health.
UNICEF India estimated that every year, more than 2 million children die
due to preventable diseases. In India, the infant mortality rate (IMR) is so high
that sixty-three children over every 1000 children die during their infancy period
and over 47 per cent infants die within a week of their birth. The most distressing
fact is that these children die of diseases which can be easily prevented with
timely vaccination. Vaccination for Tetanus is very important for newborns but in
places such as Uttar Pradesh, Madhya Pradesh, Rajasthan, West Bengal and
Assam, many children are not given this vaccination in time.
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The most important step to ensure good health in infants is breastfeeding.
NFHS-3 data estimates that many children are not breastfed properly by their
mother due to lack of knowledge. Due to this, more than 50 per cent children in
the age group of 0-5 remain underweight and 44.9 per cent children between 0-
3 years of age are found underdeveloped. During infancy, hardly 50 per cent of
the children receive full immunization. However, over the years, this number
has been dropping significantly, which strongly indicates a problem with the
universal immunization programme.
As per NFHS-3 analysis in a health care facility, 60 per cent of children
suffered from diarrhoea, 69 per cent had acute respiratory infection and 71 per
cent had high fever. During the time of the survey, oral rehydration therapy was
given to only 39 per cent of children under five who were suffering from diarrhoea.
More than one fourth of the children with diarrhoea were not given any treatment.
Plenty of water and adequate, healthy food should be given to children suffering
from diarrhoea. However, 40-45 per cent of the children did receive sufficient
food and water. Besides this, children are also put at high health risks due to
child abuse, especially sexual abuse. Abuse leads to mental trauma and diseases
such as HIV/AIDS.
Activity 2
Discuss with your friends the advantages and disadvantages of parenting
in the western countries. How is it different from the system followed in
India?
Self-Assessment Questions
15. Fill in the blanks with appropriate words:
(a) The traditional Indian parenting is __________ parenting
(b) ___________ has only 21 per cent underdeveloped children.
16. State whether the following statements are true or false:
(a) Indian parenting stresses on interdependence and the duty towards
family and community.
(b) There are several programmes or services for children who suffer
from mental health ailments.
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6.11 Summary
Let us recapitulate the important concepts discussed in this unit:
Like adults, children also have a status in society, as rightful members,
and most importantly, as human beings. Just like adults, children have
the right to be protected against certain ills.
According to Article 6 of the Convention on the Rights of the Child (CRC),
every child has the right to life and it is the governments duty to ensure
child survival and the healthy development of each child.
The Constitution of India gives a complete perspective of child rights
Education for all is a promise that the government has not been able to
fulfill till now.
The 93rd Amendment Bill (passed as the 86th Amendment to the
Constitution) has made education a fundamental right of children. However,
this bill focuses on the education of children from 6 to 14 years of age.
Article 3.1 of the United Nations Convention on the Rights of the Child
states that In all actions concerning children, whether undertaken by public
or private social welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be a primary
consideration.
The right to be heard is a valuable right.
The Convention on the Rights of the Child is the first legally binding
international instrument to incorporate the full range of human rights: civil,
cultural, economic, political and social.
It spells out the basic human rights that children everywhere have:
The right to survival
To develop to the fullest
To protection from harmful influences, abuse and exploitation
To participate fully in family, cultural and social life
The right to life is a universally recognized right for all human beings. It is
a fundamental right which governs all other existing rights. In its absence,
all other fundamental rights have no reason to exist.
The childrens right to survival is of prime importance according to the
Convention. Children have the right to good quality health care, to safe
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drinking water, nutritious food, a clean and safe environment, and
information to help them stay healthy (Article 24 of CRC).
UNICEF is a campaigner for the protection of childrens rights. It works
towards helping to meet the basic needs of the child and to give them an
opportunity to realize their full capability.
The right to abortion is considered by many women as an absolute and
inalienable right, equivalent to right over ones own body and reproduction
thereof.
Fundamental human rights are enshrined in documents such as the UDHR,
ICCPR, CEDAW and the CRC all of which India is a signatory to. All of
these documents advocate for amongst other things the right to life and
the equality between the sexes.
In 1994, the Government of India passed the Pre-conception and Pre-
natal Diagnostic Techniques (Prohibition of Sex Selection) Act with the
aim of preventing female foeticide. The implementation of this Act was
slow. It was later amended and replaced in 2002 by the Prenatal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act without ever having
been properly implemented.
The commercial sexual exploitation of children is the exploitation by an
adult with respect to a child or an adolescent female or male under 18
years old; accompanied by a payment in money or in kind to the child or
adolescent (male or female) or to one or more third parties.
Sexual exploitation in children includes all of the following:
The use of girls and boys in sexual activities remunerated in cash or
in kind (commonly known as child prostitution) in the streets or
indoors, in such places as brothels, discotheques The commercial,
massage parlours, bars, hotels, restaurants, etc.
The trafficking of girls and boys and adolescents for the sex trade.
Child sex tourism.
The production, promotion and distribution of pornography involving
children.
The use of children in sex shows (public or private.)
The term child labour is often defined as work that deprives children of
their childhood, their potential and their dignity, and that is harmful to
physical and mental development.
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It refers to work that:
Is mentally, physically, socially or morally dangerous and harmful to
children
interferes with their schooling by:
depriving them of the opportunity to attend school
obliging them to leave school prematurely
requiring them to attempt to combine school attendance with
excessively long and heavy work.
The Immoral Traffic (Prevention) Act passed in the year 1987. Under the
act detention of a woman for purposes of prostitution is punishable with a
minimum of seven years of imprisonment and maximum of life
imprisonment.
India is home to millions of indigent children. Many of them all too often
illiterate, sick, and malnourished live in neglect with wretched families
who cannot take care of them
The traditional Indian parenting is shaped by the cultural and religious
values of the land, generational wisdom, and life experiences.
According to UNICEF India over two million children die every year from
preventable diseases. IMR in India is 63 deaths for every 1000 live births.
6.12 Glossary
Juvenile: Relating to or characteristic of or appropriate for children or
young people
Illegitimate: Born of parents who are not married to each other
Undernourished: Supplied with less than the minimum amount of the
foods essential for sound health and growth
Foeticide: Killing of a fetus; especially illegal abortion
Abortion: Termination of pregnancy by the removal or expulsion from the
uterus of a fetus or embryo prior to viability
Exploitation: Utilization of another person or group for selfish purposes
Prostitution: Act or practice of providing sexual services to another person
in return for payment
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Devdasi: Religious tradition in which girls are married and dedicated to
a deity (deva or devi) or to a temple
Delinquent: Person who commits a misdemeanor
6.13 Terminal Questions
1. Do children have the same rights as adults, or are they different? Given
their vulnerability, should they be given special rights? Discuss.
2. Is education for all, a promise yet to be fulfilled?
3. Will sex-selective abortion lead to reduced growth in population and an
enhancement of the status of women in the society?
4. What is sexual exploitation of a child? According to the ILO what constitutes
the commercial sexual exploitation of children?
5. Write a note on the devdasi system.
6. Discuss the advantages and disadvantages of traditional Indian parenting.
6.14 Answers
Answers to Self Assessment Questions
1. (a) Gillick; (b) Reproductive and Child Health Programme
2. (a) True; (b) False
3. (a) Right to life; (b)Malnourishment
4. (a) False; (b)True
5. (a) Right to abortion; (b) Committee on the Elimination of Discrimination
against Women
6. (a) False; (b) True
7. (a) Fourteen; (b) Industrial Revolution
8. (a) True; (b) False
9. (a) Children; (b) Prostitute
10. (a) True; (b) True
11. (a) Six; (b) Illegitimate
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12. (a) True; (b) False
13. (a) India; (b) 2000
14. (a) False; (b)True
15. (a) Value-based; (b) Kerala
16. (a) True; (b) False
Answers to Terminal Questions
1. Refer to Section 6.2
2. Refer to Section 6.2.2
3. Refer to Section 6.4
4. Refer to Section 6.5
5. Refer to Section 6.6
6. Refer to Section 6.10
6.15 Further Reading
1. Ensalaco, Mark, Linda C. Majka.Childrens human rights: progress and
challenges for children worldwide.USA: Rowman and Littlefield Publishers,
2005.
2. Joseph, Rita. Human Rights and the Unborn Child. Netherlands: Martinus
Nijhoff Publishers / Brill Academic, 2009.
3. Tiwari, R.K. Child and Human Rights. Delhi: Neeraj Publishing House,
2011
4. Gathia, Joseph Anthony. Child Prostitution in India. Delhi: Concept
Publishing Company, 1999.
5. Patel, Tulsi. Sex-Selective Abortion in India. New Delhi: Sage Publications
(India) Pvt. Ltd. 2007.
References
United Nations Convention on the Rights of the Child.
Victory for Mrs Gillick is a tragedy for thousands of young people. Guardian, 30 th January
1985.
Unit 7 Women and Human Rights
Structure
7.1 Introduction
Objectives
7.2 United Nations and Status of Women
7.3 Convention on the Elimination of All Forms of Discrimination
Against Women, 1979 (CEDAW):
7.4 Setting the Global Gender Agenda
7.5 Offences, Violence and Crime Against Women
7.6 Dowry and Dowry Related Offences
7.7 Domestic Violence
7.8 Women Prisoners
7.9 Sexual Harassment at Work Places
7.10 The Beijing Declaration and Action Plan.
7.11 Summary
7.12 Glossary
7.13 Terminal Questions
7.14 Answers
7.15 Further Reading
7.1 Introduction
The human rights movement has been influential in the recognition and protection
of rights of people who have so far been languishing behind the veil of ignorance
and have lived a life devoid of dignity and basic rights. Women represent one
such section of the society. Womens struggle for basic human rights has a
long history. The present and the preceding century, however, have witnessed
betterment in the condition of women. A lot remains to be done to achieve the
goals of cherished ideals that form the foundation of human rights movement
and philosophy. It has been argued that human rights have not only expanded
vertically to ensure the protection and promotion of human rights during the
interaction of the State with people, but also expanded and developed horizontally
by making human right the basis for good governance and interaction, even
among the citizenry.
The Preamble to the UN Charter begins by referring a faith in fundamental
human rights, in the dignity and worth of the human persons, in the equal rights
of men and women and of nations large and small. As per the Universal
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Declaration of Human Rights, women along with men are entitled to all rights
and the terms no one and everyone include both men and women. Article 2 of
UDHR states that, Everyone is entitled to all the rights and freedoms set forth in
this Declaration without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property or
other status. As per Article 1 of the Declaration, all human beings are born free
and equal in dignity and rights.
Since the formation of the United Nations, it has been working towards the
advancement of women. This is evident from the provisions of the UN Charter
and the UDHR. The Preamble of the Charter of the United Nations aims at
reaffirming faith in fundamental human rights, in the dignity and worth of the
human person, and in the equal rights of men and women.
Objectives
After studying this unit, you should be able to:
Explain the role of UN in the upliftment of women
Examine the status of women in US and Scandinavian countries
Describe the offences, violence and crime against women
State the Beijing Declaration and Action Plan
7.2 United Nations and Status of Women
The United Nations is consistently working towards the upliftment of women
across the world. Since the establishment of the United Nations, many efforts
have been made for this purpose. Some of the efforts are as follows:
1. Convention on the Political Rights of Women, 1953
2. Convention on the Nationality of Married Women, 1957
3. Declaration on Elimination of Discrimination Against Women, 1967
4. Convention on the Elimination of All Forms of Discrimination Against
Women, 1979
5. Declaration on the Elimination of Violence Against Women, 1993
6. Optional Protocol to the Convention on the Elimination of Discrimination
Against Women, 1999
These efforts are in addition to the various provisions of UDHR, ICCPR
and ICESCR. The Preamble of the Universal Declaration of Human Rights
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recognizes that the inherent dignity and the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in
the world. Article 1 of the declaration says that All human beings are born free
and equal in dignity and rights while Article 3 says Everyone has the right to
life, liberty and security of person. Article 7 says: All are equal before the law
and are entitled without any discrimination to equal protection of the law. Article
2 reads Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, color, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.
Article 3 of ICCPR reads The States Parties to the present Covenant
undertake to ensure the equal right of men and women to the enjoyment of all
civil and political rights set forth in the present Covenant. Article 23 of Convention
recognizes The right of men and women of marriageable age to marry and to
found a family shall be recognized. While Article 6 inter alia provides that
Sentence of death shall not be imposed for crimes committed by persons below
eighteen years of age and shall not be carried out on pregnant women. Article
3 of ICESCR recognizes the equal right of men and women to the enjoyment of
all economic, social and cultural rights set forth in the present Covenant. Some
provisions in the Convention on the Elimination of All Forms of Discrimination
against Women, of significance in the present context are:
Article 11:
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment in order to ensure,
on basis of equality of men and women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(f) The right to protection of health and to safety in working conditions,
including the safeguarding of the function of reproduction.
Article 24:
States Parties undertake to adopt all necessary measures at the national level
aimed at achieving the full realization of the rights recognized in the present
Convention.
The Convention on the Political Rights of Women, 1953 desires to
implement the principle of equality of rights for men and women contained in the
Charter of the UN. In 1949, the Commission on the status of women expressed
the view that a convention on the nationality of married women should be prepared
and it resulted in the Convention on the Nationality of Married Women, 1957.
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Declarations of 1967 and 1979 provide the provisions for the eliminations of all
kinds of discriminations against the women and for the upliftment of the women
in the society. The Declaration of 1993 provides for the elimination of violence
against the women. It is the first international human rights instrument to
exclusively deal with the issue of violence against women. It affirms that violence
against women violates, impairs or nullifies womens human rights and their
exercise of fundamental freedom.
Among all these conventions the Convention on the Elimination of All Forms
of Discrimination Against Women, (CEDAW) 1979 is the most important
instrument. This Convention has an Optional Protocol of 1999.
During 1970s, international feminist movement started gaining momentum.
As a result of this movement, the General Assembly announced 1975 as the
International Womens Year. They also organized the first World Conference on
Women in Mexico City. Later, the conference also announced the years 1976-
1985 as the UN Decade for Women. In 1979, the General Assembly adopted
CEDAW. We would study CEDAW in detail in the next section.
The Second World Conference on Women took place in Copenhagen in
1980. The Programme of Action prepared in this conference called for stronger
measures related to womens property, loss of nationality, inheritance and child
custody.
The World Conference to Review and Appraise the Achievements of the
United Nations Decade for Women: Equality, Development and Peace was
organized in Nairobi in 1985. The Conference realized that objectives of the
First Conference have not been met. As a result, 157 participating governments
decided to adopt the Nairobi Forward-looking Strategies to the Year 2000.
The Fourth World Conference on Women was held in Beijing in the year
1995. Beijing Declaration and Programme of Action has been discussed in detail
in Section 7.10.
Self-Assessment Questions
1. Fill in the blanks with appropriate words
(a) The General Assembly of UN declared_______________ as the
International Womens Year.
(b) The Fi rst Worl d Conference on Women was hel d i n
________________.
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2. State whether the following statements are true or false.
(a) Convention on the Nationality of Married Women took place in 1957.
(b) The Second World Conference on Women was held in the United
States of America.
7.3 Convention on the Elimination of All Forms of Discrimination
Against Women, 1979 (CEDAW)
Since CEDAW, 1979 is the most important instrument among all conventions,
let us study this convention in detail:
7.3.1 Objectives of CEDAW
In order to ensure that the provisions of Articles 1, 2 and 55 of the Charter were
accomplished, the Declaration on Elimination of Discrimination Against Women,
1967 was passed, which made certain that the Convention on Elimination of All
Forms of Discrimination Against Women (CEDAW) was adopted in 1979.
According to this convention, all men and women have equal economic, social,
cultural, civil and political rights and State Parties to the International Covenants
on Human Rights are obliged to ensure this. Earlier, women had no equal
rights and no respect for their dignity. The CEDAW changed that. It was this
bias against women that became a hurdle when it came to womens equal
involvement in political, social, economic and cultural arenas in their respective
countries. This inequality in fact hampers the development of any nation. It is
true that women have great potential and can contribute to their nations and to
the general well being of all men and women. With inequality humankind loses
out on this large potential force. It is also seen that when it comes to conditions
of destitution, it is the women who are the worst hit. They have little access to
food, health, education, training and opportunities for employment.
The setting up of a new international economic order that had at its
foundation equality and justice would be a significant move in the right direction:
that of ensuring equal rights to men and women. The holisitic development of a
country, wellbeing of all men and women around the world, and the requirement
of peace necessitate the equal involvement of women and men on similar terms
and in all areas. Before any real equality between men and women could happen,
there had to be a change in the conventional roles that women were expected
to conform to and had grown to accept.
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Main objectives of the CEDAW:
To increase awareness about womens human rights; ensure deeper
understanding of CEDAW by Representative state institutions; and
organized civil society groups (incomplete)
To reinvigorate governments and civil society groups in their efforts to
promote womens human rights under CEDAW, both at the national
and regional levels; and
To ensure that there was an effective political will and commitment
towards CEDAW implementation
7.3.2 Overview of CEDAW
The CEDAW, which was adopted by the UN General Assembly, is often heralded
as the International Bill of Rights for Women. The document has a Preamble
and 30 articles. In great detail it describes the factors that constitute
discrimination against women. It also lists the items for action so as to put an
end to this disparity between men and women.
According to the CEDAW, discrimination against women is defined as
...any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality of
men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.
All States that accept this are promising to take measures that will put a
stop to discrimination against women. Some such measures are:
Accepting the principle of equality of men and women in their legal systems;
removing all discriminatory laws; replacing them with laws that prohibit
discrimination against women
Setting up tribunals and other public institutions that will make certain that
women are protected against discrimination
Ensuring that all acts of discrimination against women by persons,
organizations or enterprises are removed
According to the Convention women must have equal access to, and
equal opportunities in political and public lifeincluding the right to vote and to
stand for electionas well as education, health and employment. All nations
that accept this convention agree to take temporary special measures and adopt
legislations that will ensure this.
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Interestingly, the CEDAW is the sole human rights agreement that asserts
reproductive rights of women and states that it is culture and tradition that shape
gender roles and family relations. It gives women the rights to acquire, change
or retain their nationality and the nationality of their children. All those nations
that agreed to the Convention are now legally bound to make sure that they work
towards making those provisions a reality. They will also submit national reports,
at least every four years, and list all the actions they their countries have taken
to meet their obligations to CEDAW.
7.3.3 Provisions of CEDAW
(a) Preamble
The Preamble states the following:
Noting that the Charter of the United Nations reaffirms faith in fundamental human
rights, in the dignity and worth of the human person and in the equal rights of
men and women,
Noting that the Universal Declaration of Human Rights affirms the principle
of the inadmissibility of discrimination and proclaims that all human beings are
born free and equal in dignity and rights and that everyone is entitled to all the
rights and freedoms set forth therein, without distinction of any kind, including
distinction based on sex,
Noting that the State Parties to the International Covenants on Human
Rights have the obligation to ensure the equal rights of men and women to enjoy
all economic, social, cultural, civil and political rights,
Considering the international conventions concluded under the auspices
of the United Nations and the specialized agencies promoting equality of rights
of men and women,
Noting also the resolutions, declarations and recommendations adopted
by the United Nations and the specialized agencies promoting equality of rights
of men and women,
Concerned, however, that despite these instruments extensive
discrimination against women continues to exist,
Recalling that discrimination against women violates the principles of
equality of rights and respect for human dignity, is an obstacle to the participation
of women, on equal terms with men, in the political, social, economic and cultural
life of their countries, hampers the growth of the prosperity of society and the
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family and makes more difficult the full development of the potentialities of women
in the service of their countries and of humanity,
Concerned that in situations of poverty women have the least access to
food, health, education, training and opportunities for employment and other
needs,
Convinced that the establishment of the new international economic order
based on equity and justice will contribute significantly towards the promotion of
equality between men and women,
Emphasizing that the eradication of apartheid, all forms of racism, racial
discrimination, colonialism, neo-colonialism, aggression, foreign occupation and
domination and interference in the internal affairs of State is essential to the full
enjoyment of the rights of men and women,
Affirming that the strengthening of international peace and security, the
relaxation of international tension, mutual co-operation among all State
irrespective of their social and economic systems, general and complete
disarmament, in particular nuclear disarmament under strict and effective
international control, the affirmation of the principles of justice, equality and mutual
benefit in relations among countries and the realization of the right of peoples
under alien and colonial domination and foreign occupation to self-determination
and independence, as well as respect for national sovereignty and territorial
integrity, will promote social progress and development and as a consequence
will contribute to the attainment of full equality between men and women,
Convinced that the full and complete development of a country, the welfare
of the world and the cause of peace require the maximum participation of women
on equal terms with men in all fields,
Bearing in mind the great contribution of women to the welfare of the family
and to the development of society, so far not fully recognized, the social
significance of maternity and the role of both parents in the family and in the
upbringing of children, and aware that the role of women in procreation should
not be a basis for discrimination but that the upbringing of children requires a
sharing of responsibility between men and women and society as a whole,
Aware that a change in the traditional role of men as well as the role of
women in society and in the family is needed to achieve full equality between
men and women,
Determined to implement the principles set forth in the Declaration on the
Elimination of Discrimination against Women and, for that purpose, to adopt the
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measures required for the elimination of such discrimination in all its forms and
manifestations.
(b) Provision Defining the term Discrimination
PART I
Article 1
For the purposes of the present Convention, the term discrimination against
women shall mean any distinction, exclusion or restriction made on the basis of
sex which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on a basis
of equality of men and women, of human rights and fundamental freedoms in
the political, economic, social, cultural, civil or any other field.
(c) Provisions for Elimination of Discrimination: State Obligation
State Parties condemn discrimination against women in all its forms, agree to
pursue by all appropriate means and without delay a policy of eliminating
discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national
constitutions or other appropriate legislation if not yet incorporated therein
and to ensure, through law and other appropriate means, the practical
realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions
where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with
men and to ensure through competent national tribunals and other public
institutions the effective protection of women against any act of
discrimination;
(d) To refrain from engaging in any act or practice of discrimination against
women and to ensure that public authorities and institutions shall act in
conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women
by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish
existing laws, regulations, customs and practices which constitute
discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination
against women.
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(d) Provision for Eliminating Discrimination in Political Rights
Article 3
State Parties shall take in all fields, in particular in the political, social, economic
and cultural fields, all appropriate measures, including legislation, to ensure the
full development and advancement of women, for the purpose of guaranteeing
them the exercise and enjoyment of human rights and fundamental freedoms
on a basis of equality with men.
Article 4
1. Adoption by State Parties of temporary special measures aimed at
accelerating de facto equality between men and women shall not be
considered discrimination as defined in the present Convention, but shall
in no way entail as a consequence the maintenance of unequal or separate
standards; these measures shall be discontinued when the objectives of
equality of opportunity and treatment have been achieved.
2. Adoption by State Parties of special measures, including those measures
contained in the present Convention, aimed at protecting maternity shall
not be considered discriminatory.
Article 5
State Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women,
with a view to achieving the elimination of prejudices and customary and
all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and
women;
(b) To ensure that family education includes a proper understanding of
maternity as a social function and the recognition of the common
responsibility of men and women in the upbringing and development of
their children, it being understood that the interest of the children is the
primordial consideration in all cases.
Article 6
State Parties shall take all appropriate measures, including legislation, to suppress
all forms of traffic in women and exploitation of prostitution of women.
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PART II
Article 7
State Parties shall take all appropriate measures to eliminate discrimination
against women in the political and public life of the country and, in particular,
shall ensure to women, on equal terms with men, the right:
(a) To vote in all elections and public referenda and to be eligible for election
to all publicly elected bodies;
(b) To participate in the formulation of government policy and the
implementation thereof and to hold public office and perform all public
functions at all levels of government;
(c) To participate in non-governmental organizations and associations
concerned with the public and political life of the country.
Article 8
State Parties shall take all appropriate measures to ensure to women, on equal
terms with men and without any discrimination, the opportunity to represent
their Governments at the international level and to participate in the work of
international organizations.
(e) Provision for Equal Rights of Marriage
Article 9
1. State Parties shall grant women equal rights with men to acquire, change
or retain their nationality. They shall ensure in particular that neither marriage
to an alien nor change of nationality by the husband during marriage shall
automatically change the nationality of the wife, render her stateless or
force upon her the nationality of the husband.
2. State Parties shall grant women equal rights with men with respect to the
nationality of their children.
(f) Provision for Elimination of Discrimination in Education
Part III
Article 10
State Parties shall take all appropriate measures to eliminate discrimination
against women in order to ensure to them equal rights with men in the field of
education and in particular to ensure, on a basis of equality of men and women:
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(a) The same conditions for career and vocational guidance, for access to
studies and for the achievement of diplomas in educational establishments
of all categories in rural as well as in urban areas; this equality shall be
ensured in pre-school, general, technical, professional and higher technical
education, as well as in all types of vocational training;
(b) Access to the same curricula, the same examinations, teaching staff with
qualifications of the same standard and school premises and equipment
of the same quality;
(c) The elimination of any stereotyped concept of the roles of men and women
at all levels and in all forms of education by encouraging coeducation and
other types of education which will help to achieve this aim and, in particular,
by the revision of textbooks and school programmes and the adaptation
of teaching methods;
(d) The same opportunities to benefit from scholarships and other study grants;
(e) The same opportunities for access to programmes of continuing education,
including adult and functional literacy programmes, particularly those aimed
at reducing, at the earliest possible time, any gap in education existing
between men and women;
(f) The reduction of female student dropout rates and the organization of
programmes for girls and women who have left school prematurely;
(g) The same opportunities to participate actively in sports and physical
education;
(h) Access to specific educational information to help to ensure the health
and well-being of families, including information and advice on family
planning.
(g) Provision for Elimination of Discrimination in Employment
Article 11
1. State Parties shall take all appropriate measures to eliminate discrimination
against women in the field of employment in order to ensure, on a basis of
equality of men and women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the
application of the same criteria for selection in matters of employment;
(c) The right to free choice of profession and employment, the right to
promotion, job security and all benefits and conditions of service and
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the right to receive vocational training and retraining, including
apprenticeships, advanced vocational training and recurrent training;
(d) The right to equal remuneration, including benefits, and to equal
treatment in respect of work of equal value, as well as equality of
treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in cases of retirement,
unemployment, sickness, invalidity and old age and other incapacity
to work, as well as the right to paid leave;
(f) The right to protection of health and to safety in working conditions,
including the safeguarding of the function of reproduction.
2. In order to prevent discrimination against women on the grounds of
marriage or maternity and to ensure their effective right to work, State
Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on the
grounds of pregnancy or of maternity leave and discrimination in
dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social
benefits without loss of former employment, seniority or social
allowances;
(c) To encourage the provision of the necessary supporting social
services to enable parents to combine family obligations with work
responsibilities and participation in public life, in particular through
promoting the establishment and development of a network of child-
care facilities;
(d) To provide special protection to women during pregnancy in types of
work proved to be harmful to them.
3. Protective legislation relating to matters covered in this article shall be
reviewed periodically in the light of scientific and technological knowledge
and shall be revised, repealed or extended as necessary.
(h) Provision for Elimination of Discrimination in Healthcare
Article 12
1. State Parties shall take all appropriate measures to eliminate discrimination
against women in the field of health care in order to ensure, on a basis of
equality of men and women, access to health care services, including
those related to family planning.
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2. Notwithstanding the provisions of paragraph I of this article, State Parties
shall ensure to women appropriate services in connection with pregnancy,
confinement and the post-natal period, granting free services where
necessary, as well as adequate nutrition during pregnancy and lactation.
(i) Provision for Elimination of Discrimination in Other Areas
Article 13
State Parties shall take all appropriate measures to eliminate
discrimination against women in other areas of economic and social life in order
to ensure, on a basis of equality of men and women, the same rights, in particular:
(a) The right to family benefits;
(b) The right to bank loans, mortgages and other forms of financial credit;
(c) The right to participate in recreational activities, sports and all aspects of
cultural life.
(j) State Measures for Elimination of Discrimination
Article 14
1. State Parties shall take into account the particular problems faced by rural
women and the significant roles which rural women play in the economic
survival of their families, including their work in the non-monetized sectors
of the economy, and shall take all appropriate measures to ensure the
application of the provisions of the present Convention to women in rural
areas.
2. State Parties shall take all appropriate measures to eliminate discrimination
against women in rural areas in order to ensure, on a basis of equality of
men and women that they participate in and benefit from rural development
and, in particular, shall ensure to such women the right:
(a) To participate in the elaboration and implementation of development
planning at all levels;
(b) To have access to adequate health care facilities, including
information, United Nation counselling and services in family planning;
(c) To benefit directly from social security programmes;
(d) To obtain all types of training and education, formal and non-formal,
including that relating to functional literacy, as well as, inter alia, the
benefit of all community and extension services, in order to increase
their technical proficiency;
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(e) To organize self-help groups and co-operatives in order to obtain
equal access to economic opportunities through employment or self
employment;
(f) To participate in all community activities;
(g) To have access to agricultural credit and loans, marketing facilities,
appropriate technology and equal treatment in land and agrarian
reform as well as in land resettlement schemes;
(h) To enjoy adequate living conditions, particularly in relation to housing,
sani tati on, el ectri ci ty and water suppl y, transport and
communications.
Part IV
Article 15
1. State Parties shall accord to women equality with men before the law.
2. State Parties shall accord to women, in civil matters, a legal capacity
identical to that of men and the same opportunities to exercise that capacity.
In particular, they shall give women equal rights to conclude contracts
and to administer property and shall treat them equally in all stages of
procedure in courts and tribunals.
3. State Parties agree that all contracts and all other private instruments of
any kind with a legal effect which is directed at restricting the legal capacity
of women shall be deemed null and void.
4. State Parties shall accord to men and women the same rights with regard
to the law relating to the movement of persons and the freedom to choose
their residence and domicile.
Article 16
1. State Parties shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations and
in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage
only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its
dissolution;
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(d) The same rights and responsibilities as parents, irrespective of their
marital status, in matters relating to their children; in all cases the
interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and
spacing of their children and to have access to the information,
education and means to enable them to exercise these rights;
(f) The same rights and responsibilities with regard to guardianship,
wardship, trusteeship and adoption of children, or similar institutions
where these concepts exist in national legislation; in all cases the
interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to
choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership,
acquisition, management, administration, enjoyment and disposition
of property, whether free of charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal effect, and all
necessary action, including legislation, shall be taken to specify a minimum
age for marriage and to make the registration of marriages in an official
registry compulsory.
(k) Provision for Committee on the Elimination of Discrimination Against
Women
Part V
Article 17
1. For the purpose of considering the progress made in the implementation
of the present Convention, there shall be established a Committee on the
Elimination of Discrimination against Women (hereinafter referred to as
the Committee) consisting, at the time of entry into force of the Convention,
of eighteen and, after ratification of or accession to the Convention by the
thirty-fifth State Party, of twenty-three experts of high moral standing and
competence in the field covered by the Convention. The experts shall be
elected by State Parties from among their nationals and shall serve in
their personal capacity, consideration being given to equitable geographical
distribution and to the representation of the different forms of civilization
as well as the principal legal systems.
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2. The members of the Committee shall be elected by secret ballot from a
list of persons nominated by State Parties. Each State Party may nominate
one person from among its own nationals.
3. The initial election shall be held six months after the date of the entry into
force of the present Convention. At least three months before the date of
each election the Secretary-General of the United Nations shall address a
letter to the State Parties inviting them to submit their nominations within
two months. The Secretary-General shall prepare a list in alphabetical
order of all persons thus nominated, indicating the State Parties which
have nominated them, and shall submit it to the State Parties.
4. Elections of the members of the Committee shall be held at a meeting of
State Parties convened by the Secretary-General at United Nations
Headquarters. At that meeting, for which two thirds of the State Parties
shall constitute a quorum, the persons elected to the Committee shall be
those nominees who obtain the largest number of votes and an absolute
majority of the votes of the representatives of State Parties present and
voting.
5. The members of the Committee shall be elected for a term of four years.
However, the terms of nine of the members elected at the first election
shall expire at the end of two years; immediately after the first election the
names of these nine members shall be chosen by lot by the Chairman of
the Committee.
6. The election of the five additional members of the Committee shall be
held in accordance with the provisions of paragraphs 2, 3 and 4 of this
article, following the thirty-fifth ratification or accession. The terms of two
of the additional members elected on this occasion shall expire at the end
of two years, the names of these two members having been chosen by
lot by the Chairman of the Committee.
7. For the filling of casual vacancies, the State Party whose expert has ceased
to function as a member of the Committee shall appoint another expert
from among its nationals, subject to the approval of the Committee.
8. The members of the Committee shall, with the approval of the General
Assembly, receive emoluments from United Nations resources on such
terms and conditions as the Assembly may decide, having regard to the
importance of the Committees responsibilities.
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9. The Secretary-General of the United Nations shall provide the necessary
staff and facilities for the effective performance of the functions of the
Committee under the present Convention.
Article 18
1. State Parties undertake to submit to the Secretary-General of the United
Nations, for consideration by the Committee, a report on the legislative,
judicial, administrative or other measures which they have adopted to give
effect to the provisions of the present Convention and on the progress
made in this respect:
(a) Within one year after the entry into force for the State concerned;
(b) Thereafter at least every four years and further whenever the
Committee so requests.
2. Reports may indicate factors and difficulties affecting the degree of
fulfilment of obligations under the present Convention.
Article 19
1. The Committee shall adopt its own rules of procedure.
2. The Committee shall elect its officers for a term of two years.
Article 20
1. The Committee shall normally meet for a period of not more than two
weeks annually in order to consider the reports submitted in accordance
with article 18 of the present Convention.
2. The meetings of the Committee shall normally be held at United Nations
Headquarters or at any other convenient place as determined by the
Committee.
Article 21
1. The Committee shall, through the Economic and Social Council, report
annually to the General Assembly of the United Nations on its activities
and may make suggestions and general recommendations based on the
examination of reports and information received from the State Parties.
Such suggestions and general recommendations shall be included in the
report of the Committee together with comments, if any, from State Parties.
2. The Secretary-General of the United Nations shall transmit the reports of
the Committee to the Commission on the Status of Women for its
information.
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(l) Provision for Agency
Article 22
The specialized agencies shall be entitled to be represented at the consideration
of the implementation of such provisions of the present Convention as fall within
the scope of their activities. The Committee may invite the specialized agencies
to submit reports on the implementation of the Convention in areas falling within
the scope of their activities.
(m) Saving and Concluding Provision
PART VI
Article 23
Nothing in the present Convention shall affect any provisions that are more
conducive to the achievement of equality between men and women which may
be contained:
(a) In the legislation of a State Party; or
(b) In any other international convention, treaty or agreement in force for that
State.
Article 24
State Parties undertake to adopt all necessary measures at the national level
aimed at achieving the full realization of the rights recognized in the present
Convention.
Article 25
1. The present Convention shall be open for signature by all State.
2. The Secretary-General of the United Nations is designated as the depositary
of the present Convention.
3. The present Convention is subject to ratification. Instruments of ratification
shall be deposited with the Secretary-General of the United Nations.
4. The present Convention shall be open to accession by all State. Accession
shall be effected by the deposit of an instrument of accession with the
Secretary-General of the United Nations.
Article 26
1. A request for the revision of the present Convention may be made at any
time by any State Party by means of a notification in writing addressed to
the Secretary-General of the United Nations.
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2. The General Assembly of the United Nations shall decide upon the steps,
if any, to be taken in respect of such a request.
Article 27
1. The present Convention shall enter into force on the thirtieth day after the
date of deposit with the Secretary-General of the United Nations of the
twentieth instrument of ratification or accession.
2. For each State ratifying the present Convention or acceding to it after the
deposit of the twentieth instrument of ratification or accession, the
Convention shall enter into force on the thirtieth day after the date of the
deposit of its own instrument of ratification or accession.
Article 28
1. The Secretary-General of the United Nations shall receive and circulate to
all State the text of reservations made by State at the time of ratification or
accession.
2. A reservation incompatible with the object and purpose of the present
Convention shall not be permitted.
3. Reservations may be withdrawn at any time by notification to this effect
addressed to the Secretary-General of the United Nations, who shall then
inform all State thereof. Such notification shall take effect on the date on
which it is received.
Article 29
1. Any dispute between two or more State Parties concerning the
interpretation or application of the present Convention which is not settled
by negotiation shall, at the request of one of them, be submitted to
arbitration. If within six months from the date of the request for arbitration
the parties are unable to agree on the organization of the arbitration, any
one of those parties may refer the dispute to the International Court of
Justice by request in conformity with the Statute of the Court.
2. Each State Party may at the time of signature or ratification of the present
Convention or accession thereto declare that it does not consider itself
bound by paragraph I of this article. The other State Parties shall not be
bound by that paragraph with respect to any State Party which has made
such a reservation.
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3. Any State Party which has made a reservation in accordance with
paragraph 2 of this article may at any time withdraw that reservation by
notification to the Secretary-General of the United Nations.
Article 30
The present Convention, the Arabic, Chinese, English, French, Russian and
Spanish texts of which are equally authentic, shall be deposited with the
Secretary-General of the United Nations.
7.3.4 Optional Protocol to CEDAW
(a) Introduction
On 6 October 1999, the General Assembly adopted a 21 Article Optional Protocol
to the Convention on the Elimination of all Forms of Discrimination against
Women. It urged all State Parties to the Convention to join the new instrument.
This protocol was ground-breaking in the sense that it was adopted without a
vote.
When a country agrees to the Optional Protocol, it is accepting the
competence of the Committee on the Elimination of Discrimination against
Women. This committee supervises the workings of the State Parties in order
to make certain that the latter are complying with the Convention i.e. receiving
and considering complaints from individuals or groups within its jurisdiction.
There are two procedures in the Protocol:
(i) The communications procedure is one that permits individual women,
or groups of women, to bring to the notice of officials all the violations of
rights carried out against them that are otherwise protected under the
Convention to the Committee. However, according to the Protocol
individual complaints will be accepted by the Committee only after certain
criteria have been met, one of which is that it could not be resolved
domestically.
(ii) Under the inquiry procedure the Committee has the right to investigate
situations of grave or systematic violations of womens rights. The State
is a member of the Convention and the Protocol. Under the Protocol is an
opt-out clause, under which the State can go ahead and declare that it
does not accept the inquiry procedure. Article 17 of the Protocol provides
that no reservations may be entered to its terms.
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On 22 December 2000 the convention accepted the Optional Protocol.
This was after the ratification of the tenth State into the Convention. The Optional
Protocol allows the CEDAW to be on similar grounds as the International
Covenant on Civil and Political Rights, the Convention on the Elimination of All
Forms of Racial Discrimination, and the Convention against Torture and other
Forms of Cruel, Inhuman or Degrading Treatment or Punishment. All these
conventions have communications procedures. The inquiry procedure
corresponds to the Convention against Torture.
(b) Objectives of Optional Protocol
There is no stipulation for an individual complaint system in the CEDAW. It was
in a bid to cover this shortcoming that the Optional Protocol came into being.
The Protocol says in Article 2 that an individual or a group of individuals can
convey this to the Committee. However such communication must be in writing
and not anonymous. The Committee in turn must do its own homework to ensure
that the complaint has reached it only after all domestic recourses have been
exhausted. The Committee can start a confidential investigation when it is
convinced of grave or systematic violations by a State Party of rights as
enumerated in the Convention. Under the protocol those who have been
discriminated against or have suffered other abuses can communicate with
the Committee.
(c) Preamble
The preamble is the introductory part of the Protocol which sets out the object
and purpose of the Protocol. It refers to the principles of equality and non-
discrimination as embodied in the UN Charter, the Universal Declaration of Human
Rights, and other international human rights instruments, including the
Convention on the Elimination of All Forms of Discrimination against Women. It
reaffirms the determination of State Parties which adopt the protocol to ensure
the full and equal enjoyment by women of all human rights and fundamental
freedoms and to take effective action to prevent violations of these rights and
freedoms. The words of the Preamble are as follows:
The State Parties to the present Protocol,
Encouraged by the overwhelming support for the Convention on the Rights
of the Child, demonstrating the widespread commitment that exists to
strive for the promotion and protection of the rights of the child,
Reaffirming that the rights of children require special protection, and calling
for continuous improvement of the situation of children without distinction,
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as well as for their development and education in conditions of peace and
security,
Disturbed by the harmful and widespread impact of armed conflict on
children and the long-term consequences it has for durable peace, security
and development,
Condemning the targeting of children in situations of armed conflict and
direct attacks on objects protected under international law, including places
that generally have a significant presence of children, such as schools
and hospitals,
Noting the adoption of the Rome Statute of the International Criminal Court,
in particular, the inclusion therein as a war crime, of conscripting or enlisting
children under the age of 15 years or using them to participate actively in
hostilities in both international and non-international armed conflict,
Considering therefore that to strengthen further the implementation of rights
recognized in the Convention on the Rights of the Child there is a need to
increase the protection of children from involvement in armed conflict,
Noting that article 1 of the Convention on the Rights of the Child specifies
that, for the purposes of that Convention, a child means every human
being below the age of 18 years unless, under the law applicable to the
child, majority is attained earlier,
Convinced that an optional protocol to the Convention that raises the age
of possible recruitment of persons into armed forces and their participation
in hostilities will contribute effectively to the implementation of the principle
that the best interests of the child are to be a primary consideration in all
actions concerning children,
Noting that the twenty-sixth International Conference of the Red Cross
and Red Crescent in December 1995 recommended, inter alia, that parties
to conflict take every feasible step to ensure that children below the age of
18 years do not take part in hostilities,
Welcoming the unanimous adoption, in June 1999, of International Labour
Organization Convention No. 182 on the Prohibition and Immediate Action
for the Elimination of the Worst Forms of Child Labour, which prohibits,
inter alia, forced or compulsory recruitment of children for use in armed
conflict,
Condemning with the gravest concern the recruitment, training and use
within and across national borders of children in hostilities by armed groups
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distinct from the armed forces of a State, and recognizing the responsibility
of those who recruit, train and use children in this regard,
Recalling the obligation of each party to an armed conflict to abide by the
provisions of international humanitarian law,
Stressing that the present Protocol is without prejudice to the purposes
and principles contained in the Charter of the United Nations, including
Article 51, and relevant norms of humanitarian law,
Bearing in mind that conditions of peace and security based on full respect
of the purposes and principles contained in the Charter and observance
of applicable human rights instruments are indispensable for the full
protection of children, in particular during armed conflict and foreign
occupation,
Recognizing the special needs of those children who are particularly
vulnerable to recruitment or use in hostilities contrary to the present Protocol
owing to their economic or social status or gender,
Mindful of the necessity of taking into consideration the economic, social
and political root causes of the involvement of children in armed conflict,
Convinced of the need to strengthen international cooperation in the
implementation of the present Protocol, as well as the physical and
psychosocial rehabilitation and social reintegration of children who are
victims of armed conflict,
Encouraging the participation of the community and, in particular, children
and child victims in the dissemination of informational and educational
programmes concerning the implementation of the Protocol.
(d) Provisions of Optional Protocol
Establishes that States who become parties to the optional protocol recognize
the competence of the Committee to receive and consider communications
under the protocol.
Article 2
Provides a Communications Procedure which allows either individuals or groups
of individuals to submit individual complaints to the Committee. Communications
may also be submitted on behalf of individuals or groups of individuals, with their
consent, unless it can be shown why that consent was not received.
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Article 3
Establishes that a communication will only be considered by the Committee if it
concerns a country that has become party to the protocol. In addition, a
communication must be submitted in writing and may not be anonymous.
Article 4
Stipulates admissibility criteria of communications. Before a complaint is
considered, the Committee must determine that all available domestic remedies
have been exhausted and the complaint is not, nor has been examined by the
Committee or has been or is being examined under another procedure of
international investigation or settlement. In addition, a complaint will only be
admissible provided the complaint is compatible with the provisions of the
Convention; is not an abuse of the right to submit a communication; the claimants
allegations can be substantiated, and the facts presented occurred after the
State party ratified the Protocol.
Article 5
After receipt of a communication and prior to its final decision, the Committee
has the option of contacting the State Party with an urgent request that the State
Party take steps to protect the alleged victim or victims from irreparable harm.
Article 6
Establishes the communications procedure. Where a communication has been
found admissible, the Committee will confidentially bring a communication to
the attention of the State Party, provided the complaint has consented to disclosure
of their identity to the State Party. The State Party is given six months to provide
a written explanation or statement to the complaint.
Article 7
Outlines the process of complaint consideration. The Committee will examine
and consider all information provided by a complaint in closed meetings. The
Committees views and recommendations will be transmitted to the parties
concerned. The State Party has six months to consider the views of the
Committee and provide a written response, including remedial steps taken. The
Committee may request further information from the State Party, including in
subsequent reports.
Article 8
Establishes an inquiry procedure that allows the Committee to initiate a
confidential investigation by one or more of its members where it has received
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reliable information of grave or systematic violations by a State Party of rights
established in the Convention. Where warranted and with the consent of the
State Party, the Committee may visit the territory of the State Party. Any findings,
comments or recommendations will be transmitted to the State Party concerned,
to which it may respond within six months.
Article 9
Establishes a follow-up procedure for the Committee. After the six-month period
referred to in article 8, the State Party may be invited to provide the Committee
with details of any remedial efforts taken following an inquiry. Details may also
be provided in the State Party report to the Committee under article 18 of the
Convention.
Article 10
Provides an opt-out clause. At ratification of the Optional Protocol, a State Party
has the option of refusing to recognize the competence of the Committee to
initiate and conduct an inquiry as established under articles 8 and 9. However,
this declaration may be withdrawn at a later time.
Article 11
Requires a State Party to ensure the protection of those submitting
communications.
Article 12
A summary of the Committees activities relating to the Protocol will be included
under article 21 of the Convention.
Article 13
Establishes a requirement that State Parties widely publicize the Convention
and its Protocol and provide access to the views and recommendations of the
Committee.
Article 14
Requires the Committee to develop its own rules of procedure when dealing
with communications and inquiries considered in accordance with the Optional
Protocol.
Article 15
Governs eligibility for State to sign, ratify or accede to the Protocol. Any State
Party that is party to the Convention may become party to the Protocol.
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Article 16
Establishes that a minimum of ten countries must have ratified or acceded to
the Protocol before the Protocol enters into force. The Protocol will enter into
force three months after the 10th ratification or accession.
Article 17
Provides that there shall be no reservations to the Protocol.
Article 18
Establishes procedures for amending the Protocol. Any State Party may suggest
amendments to be sent to the Secretary-General of the United Nations to be
communicated to all State Parties to the Protocol. If requested by a minimum of
one-third of State Parties, a conference may be convened to discuss and vote
on any amendments. With the support of a two-thirds majority and the General
Assembly, an amendment comes into force and is binding on State that have
accepted the amendments.
Article 19
Provides for a State Party to withdraw from the Protocol by written notification to
the Secretary-General. Withdrawal will not impact any communications submitted
prior to the effective date of withdrawal.
Article 20
State that the Secretary-General of the United Nations shall inform State of
signatures, ratifications and accessions, the date the Protocol comes into force
and any amendments and withdrawals.
Article 21
Provides that the Protocol will be deposited in the United Nations archives, made
available in Arabic, Chinese, English, French, Russian and Spanish and sent to
all State Parties by the Secretary General.
7.3.5 Implementation Procedure: Committee
Article 17 affords the setting up of a Committee on the Elimination of
Discrimination Against Women. The committee would be tasked with evaluating
whether provisions of the Convention are being met or not. The Committee was
set up in 1981 when the CEDAW came into force. The Committee meets only
for two weeks in a year. The State Parties report routinely to the Committee
about the progress they have made in legislative, judicial, administrative areas
or any innovative measure of their own so as to remove discrimination against
women in their societies. The Convention is implemented through the State
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Parties report. The Committees annual report is shown to the General Assembly
through the ECOSOC, which gives its own recommendations on the basis of
State Parties reports.
7.3.6 Inquiry Procedure
An inquiry procedure and complaints procedure comprise the optional protocol.
Through the inquiry procedure the Committee can make inquiries into cases of
monstrous abuses of womens human rights in member countries of the Optional
Protocol. It is patterned on Article 20 of the International Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The
inquiry procedure is tasked to perform the following functions:
Allow experts from the global arena to examine cases of abuses of
womens human rights
Step in when individual correspondence is not able to showcase the true
nature and extent of extensive violations of womens rights
Step in when it is not possible for individuals or groups to report on
widespread violations of womens human rights. These inabilities could
be due to practical reasons or fear of reprisals
Give recommendations on the structural causes of violations
Address issues of human rights violations in a particular country
7.3.7 The Reporting Procedure
After becoming a member of the Committee the State Parties must give a report
of their achievements within one year. Thereafter, they are required to submit
their report every four years or whenever the Committee demands. The reports
should be so structured that they list the steps taken that go some distance ino
meeting the aspirations of the CEDAW. On receiving the report the Committee
sits down to study these reports with Government representatives and see
what more the country can do in this field of human rights.
7.3.8 Communication Procedure
(a) Interstate Communication Procedure
Article 29 of CEDAW states that two or more State parties may come together
to refer disputes regarding interpretation and implementation of CEDAW for
arbitration. If they are still dissatisfied, they can take it up with the International
Court of Justice. So far this has not happened and it has many reservations.
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(b) CSW Communications Procedure
The CSW can get confidential and non-confidential communications about
discrimination against women. This information can be used for policy-making
in the CSW. However it is not related to the legal framework of CEDAW. It does
not step in to help individual cases or urgent situations where women are suffering
continued violations.
(c) Other Communication Procedures
Besides the first Optional Protocol to the CEDAW, women can use existing
procedures for redressal of complaints regarding violations of their rights. Some
of the existing procedures are listed below:
The Convention on the Elimination of All Forms of Racial Discrimination
(Article 14)
The Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (communications procedure - Article 22)
The 1503 Procedure of the Commission of Human Rights.
First Optional Protocol to ICCPR
7.3.9 Special Rapporteur on Violence Against Women
It was in 1994 that a Special Rapporteur was appointed by Resolution 1994/45
of the Commission on Human Rights. Resolution 1997/44 of the Commission
gave the Special Rapporteurs mandate a fresh lease of life. . Besides the fact
that the Special Rapporteur has the powers to study general issues of violence
against women, the office can seek information from governments concerning
specific cases of alleged violence.
7.3.10 Importance to the First Optional Protocol to CEDAW
The First Optional Protocol to CEDAW has the following functions:
Expand State and individuals understanding of CEDAW
To Encourage States to implement CEDAW
Bring about changes in discriminatory laws and practices
Enhance existing apparatus to ensure that human rights are made
available to everyone
Initiate greater public awareness of human rights standards vis a vis
discrimination against women
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7.3.11 India and CEDAW
Article 14 of the Constitution of India promises equal status to women Even as
women have the right to equality in India, extra protection is given to them. For
example, Article 15 (3) offers the State the power to make special provisions for
women. In the past certain rules and regulations have been declared
unconstitutional by our judicial bodies that have made their judgements on the
basis of the constitutional provisions. One example is the C.B. Muthamma v.
Union of India AIR 1979 SC 1868 case. In Vishaka and Others v. State of
Rajasthan, AIR 1997 SC 3011 the Supreme Court declared that international
documents relating to human rights must be considered.
On 9 July 1993 India ratified the CEDAW. With this, the country is compelled
to abide by the obligations as stated by the Convention. In Madhu Kishwar v.
State of Bihar, AIR 1996 SC 2178 case the Supreme Court declared that the
CEDAW was a part of the Fundamental Rights and Directive Principles as
provided in the Indian Constitution.
Self-Assessment Questions
3. Fill in the blanks with appropriate words
(a) Declaration on Elimination of Discrimination Against Women, 1967
led to the adoption of the _______________________, 1979.
(b) The Optional Protocol entered into force on ______________following
the ratification of the tenth State party to the CEDAW.
4. State whether the following statements are true or false.
(a) Committee on the Elimination of Discrimination Against Women
meets thrice a year.
(b) The optional protocol includes an inquiry procedure as well as a
complaints procedure.
7.4 Setting the Global Gender Agenda
Various world bodies have defined gender equality in terms of human rights.
According to UNICEF gender equality is leveling the playing field for girls and
women by ensuring that all children have equal opportunity to develop their
talents.
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The United Nations Millennium Project says, Every single Goal is directly
related to womens rights, and societies where women are not afforded equal
rights as men can never achieve development in a sustainable manner.
The Suffragette Movement of the late nineteenth century led to the
movement towards gender equality especially in western countries. After this, a
number of changes were introduced in laws. Adopting affirmative action policies
also resulted in a number of changes. Many countries started accepting women
in police force and armed forces. Now, women are working in large numbers
even after marriage and child rearing is not considered exclusively a womans
domain.
The objectives of gender equality have not been met completely especially
in non-western countries. However, various efforts have been made for promoting
gender equality. For instance, the European Union opened the European Institute
for Gender Equality (EIGE) in 2010 in Vilnius, Lithuania. The objective of this
institute is to promote gender equality and to fight sex discrimination.
In India, the Constitution of India under Article 15(3) and 16(4) aims at
upliftment of the women in the country by providing reservation to women in
education and in service.
The Status of Women in US and Scandinavian Countries
In March 2011, in US, the Office of Management and Budget and the Economics
and Statistics Administration within the Department of Commerce together
created a report named Women in America. This report shows how the life of
women is changing in US.
The report shows that the achievements of women in educational field
have been better than those of men as women are getting better grades than
men. The health condition of women is also better than men. Their life expectancy
rate has increased and they are less likely to suffer from heart diseases.
As far as workforce is concerned, there was increase in women workforce
in mid 1990s but it has been almost constant since then. Most of the women are
working in part-time jobs and they are spending most of their time in household
activities. They also do more unpaid volunteer work than men.
In case of Scandinavian countries, women have been given independent
legal status and political rights. However, the main reason behind these rights is
their roles as mothers so that they can take part in nation-building by upbringing
children. The exhibit 7.1 also indicates the status of women in US and
Scandinavian countries.
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Exhibit 7.1
The Worlds Best Countries for Women
8 March 2010, By Nancy Folbre, The New York TimesIn 1995, the United
Nations Human Development report introduced two measures designed to
facilitate cross-country comparisons of the status of women. One, the Gender-
Related Development Index (G.D.I.) takes as its starting point a Human
Development Index based on life expectancy at birth, enrollment in schools,
adult literacy and per capita gross domestic product.
The G.D.I. takes both absolute and relative levels of these factors into account,
penalizing countries with a high disparity between mens and womens
achievements. In 2007, the latest year for which data is currently available,
the United States ranked 13th on the Human Development Index and 19th on
the Gender-Related Development Index. Norway took first place on the H.D.I.,
but only second on the G.D.I. (Australia took the gold in G.D.I. rankings.)
A second United Nations measure, the Gender Empowerment Measure
(G.E.M.) focuses more narrowly on relative levels of political participation and
decision-making power, economic participation and earnings. The economic
component, however, is influenced by absolute levels of income. As a result,
low-income countries rank low. Sweden took top prize in 2007, with the United
States in 18th place.
The organization Social Watch publishes a Gender Equity Index (G.E.I.) that
combines elements similar to both the G.D.I. and the G.E.M., but relies entirely
on relative measures, using a score of 100 to indicate perfect equality. This
measure puts some less-developed countries (such as Rwanda) in the top
category along with Scandinavian countries, with a score over 80; the United
States has a score below 65.
The World Economic Forum published a Gender Gap Index (G.G.I.) in 2007
that combines quantitative measures with some qualitative measures based
on a survey of 9,000 business leaders in 104 countries. They put the United
States in 31st place.
Despite these differences, a clear pattern emerges. Scandinavian countries
that have made gender equality an explicit goal and implemented policies
such as universal child care and paid family leaves almost always land on
the top of the list. The United States lags far behind.
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Efforts to look more specifically at developing countries show that several
countries in Latin America, like Paraguay, stand out in terms of their efforts to
reform family law and promote agrarian reforms that give women access to
land ownership. On the other hand, many countries in Africa and the Middle
East enforce laws that explicitly restrict womens rights.
None of the indexes described above provide a complete picture. Its easier
to measure rights and achievements than obligations and commitments.
Consider for instance, differences in financial responsibility for the care of
dependents which are quite substantial in many countries like the United
States, where single mothers are raising a large proportion of all children.
As women gain more economic independence, they may lose some financial
support from the fathers of their children.
Nor do any existing indexes measure differences between women and men
in the amount of time devoted to unpaid household work or family care, or
resulting differences in leisure time.
As national statistical agencies begin publishing data on these dimensions of
living standards, researchers can move toward the development of expanded
indexes.
Adapted from: http://www.womenscolleges.org/story/worlds-best-countries-for-women
Accessed on 23 December 2011
Self-Assessment Questions
5. Fill in the blanks with appropriate words
(a) The Suffragette Movement of the late nineteenth century led to the
movement towards _____________ especially in western countries.
(b) The objectives of gender equality have not been met completely in
______________ countries.
6. State whether the following statements are true or false.
(a) The report Women in America shows that the achievements of
women in educational field are negligible as compared to men.
(b) In Scandinavian countries, women have been given independent legal
status and political rights mainly for their roles as mothers.
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7.5 Offences, Violence and Crime Against Women
Gender Since time immemorial inequality between men and women has raged
in India. This form of discrimination has ensured that half of our population has
not been given the chance to grow and realize its full potential or even to be able
to live a life of dignity and well being. Violence against women continues to
plague our society and is a mark of dishonor for our country. This violence
rears its ugly head in various forms such as female foeticide, infanticide,
demands for dowry, sexual harassment at workplace, domestic violence, etc.
The National Crime Records Bureau has also reflected upon the increasing
crime against women. Let us discuss some evil practices against women in
India:
Female foeticide
The discrimination against women and the preference for sons has given rise to
female foeticide in India. With advancements in science and technology,
techniques have evolved to know the sex of the foetus. Female foeticide has
definitely distorted the sex ratios in India. Sex selective abortions are on increase
in India in rural as well as urban areas. Various techniques pertaining to sex-
determination have developed over the years. Techniques such as fonography,
fetoscopy, needling, Chorionic villus biopsy, and the most popular one,
amniocentesis are increasingly becoming household names in India (Ravindra,
1986 quoted in Vibhuti Patel 1996). Factors such as poverty and dowry play an
important role in peoples preference for a male child.
Female infanticide
Female infanticide is an act of killing girl child. It is a deliberate and intentional
act of killing a female child within one year of its birth either directly by using
poisonous chemicals or indirectly by not feeding the infant. Infanticide is killing
of an entirely dependent child under one year of ageby mother, parents or
others in whose care the child is entrusted (Koloor, 1990). Such practices are
deeply rooted in the socio-cultural milieu of Indian society. Many systems
prevalent in India like dowry, social customs, low position of women have all
contributed to give rise to such inhuman practices against the girl child.
Desai (1988) reported that female infanticide was so widespread in Jadeja
(Rajput) families of Kutch and Saurashtra that only five such families were found
who had not killed their new-born daughters. Prevalence of female infanticide
in post-independence period was reported from Madurai district of Tamil Nadu,
Bihar, Rajasthan, Orissa and Maharashtra.
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According to Crime in India (2000), foeticide cases reported an increase
by 49.2 per cent over previous year and infanticide cases have increased by
19.5 p