HUMAN RIGHTS AND THE INDIAN CONSTITUTION

Lesson 4
HUMAN RIGHTS AND THE INDIAN CONSTITUTION

 
Anurag Pandey
Senior Research Scholar
Department of Political Science
University  of Delhi

Human rights refer to "the basic rights and freedoms to which

all humans are entitled. Examples of rights and freedoms which are
often thought of as human rights include civil and political rights,
such as the right to life and liberty, freedom of expression,
and equality before the law; and social, cultural and economic
rights, including the right to participate in culture, the right to work,
and the right to education.

India after independence also provides fundamental rights to

its citizens including some Directive Pricnciples of State Policy for
their development and to lead a civilized life. The preamble of the
Constitution clearly describes the values of justice, equality,
secularism and cultural pluralism to make a stable democratic
society and polity.

Human Rights and the Constitution of India

The constitution of India is known as one of the most right-based

constitutions in the world. It was drafted around the same time when the
Universal Declaration of Human Rights by the United Nations came into
force (1948). Indian constitution provides the spirit of human rights in its
preamble and the sections on Fundamental rights and Directive Principle of
State Policy.

Individual partly and wholly expects that he/she should be provided

the good environment for his/her overall development. Rights provide that
environment. Rights have been defined as those claims of an individual that
are necessary for the development of his/her ownself and recognized by
state or society. Some of the rights provided by the state and enshrined in
the constitution are known as fundamental rights. Fundamental rights are
those rights that are enforceable through the court of law.

The Indian constitution is based on the theory that guided India’s

struggle against British colonialism, which was marked by the violation of
civil, political, social, economic and cultural rights of the people.
Therefore, after independence the framers of the constitution provided
some fundamental rights to the citizens which are enshrined in the part III
of the constitution. These fundamental rights are defined as basic human
freedom for a proper and harmonious development of personality of every
Indian citizen. These fundamental rights apply to all Indian citizens,
irrespective of caste, creed, colour, sex, race or place of birth. They are
also enforceable by the courts, subject to certain restrictions.The rights
have their origins in many sources including England’s Bill of Rights, the
United States Bill of Rights and France’s declaration of the Rights of Man.

India’s Independence Movements, Human Rights and the

Constituent Assembly

The development of constitutionally guaranteed fundamental human

rights in India was inspired by England's Bill of Rights (1689), the United
States Bill of Rights (approved on September 17, 1787, final approval
on December 15,1791) and France's Declaration of the Rights of
Man (created during the revolution of 1789, and ratified on August
26, 1789).

The Rowlatt Act of 1919 provided extensive powers to the British

government. It allowed the officials to indefinite arrest, detention of
individuals and armed them with warrant-less searches and seizures. It also
restricted people for public gathering and censored the media. Therefore,
the extensive powers given to the officials resulted into the gross violation
of Human rights of masses. In response to this the public opposition grew
and there was a widespread demand of guaranteed civil liberties and
limitations on the powers of government. Prior to this Act, there were
Vernacular Press Act of 1878, Indian Council Act, 1892, Indian Council Act
1909 etc, which faced political and public opposition. The regime of Lord
Curzen (1892-1909) was marked by the violation of basic human rights of
individuals. Thus it can be said that the leaders of freedom movement were
not only fighting for the independence but they were also fighting for the
basic human rights of Indian masses.

Another major development during that period was the Nehru

Commission Report of 1928 (with Motilal Nehru as its Chairman). It proposed
constitutional reforms for India. It apart from demanding a dominion status
for India and elections under universal suffrage laid emphasis on the rights
deemed fundamental, representation for religious and ethnic minorities and
suggested to limit the power of government. It also proposed to protect the
fundamental rights of the people, which were denied most frequently by the
colonial administration.

 In 1931, the Indian National Congress approved several resolutions

committing itself to the protection of fundamental civil rights and
economic-social rights for example, the minimum wage and the abolition
of untouchabilityand serfdom. The Karachi Resolution adopted by
Congress was also a landmark as it demanded to include the economic
freedom with political freedom to end the exploitation of the people and
lastly the Sapru Committee[1] recommended the political and civil rights,
equality of liberty and security, freedom to practice a religion, worship etc
to the people. When India achieved independence on 15 August 1947, the
task of framing a constitution was undertaken by the Constituent Assembly.
It consisted of elected representatives with Rajendra Prasad as its
President. While members of Congress composed of a large majority, some
persons from diverse political backgrounds were appointed with a
responsibility to frame the constitution and national laws. Dr. Bhimrao
Ambedkar became the chairperson of the drafting committee,
while Jawaharlal Nehru and Sardar Vallabhbhai Patel became
chairpersons of committees and sub-committees responsible for different
subjects. A notable development during that period took place on 10
December 1948 when theUnited Nations General Assembly adopted
the Universal Declaration of Human Rights and called upon all member
states to adopt these rights in their respective constitutions, this
development has a significant impact on the Constitution of India.

            The Fundamental Rights were included in the Ist Draft

Constitution (February 1948), the IInd Draft Constitution (17
October 1948) and the IIIrd and final Draft Constitution (26
November 1949), being prepared by the Drafting Committee.

Human Rights and the Constitution of India

 The Constitution as said above provides some Fundamental Rights to
its citizens. The Fundamental Rights are included in Part III of the
Constitution (Articles 12-35)[2], these rights were finalized by a committee
of the Constituent Assembly headed by Sardar Vallabhbhai Patel.

Nature of Rights

These rights have not been defined in the Constitution. But it is

agreed that they are described as fundamental because they are superior to
ordinary laws; they can be altered only through constitutional amendment.
Furthermore they are vital for the full development of the human
personality, promoting an individual’s dignity and welfare. These rights
unlike other justifiable rights are protected by the constitutional remedy by
way of an application direct to the Supreme Court under Article 32, which is
itself included in Part III. The Fundamental Rights are not absolute; they can
be subject to certain restrictions. While some of these restrictions are spelt
out by the Constitution, other restrictions may be imposed by the
government. However, the reasonableness of such restrictions is to be
decided upon by the courts. Thus a balance is stuck between individual
liberty and social control. The Fundamental Rights can be suspended during
emergency.  The rights are available against the State and not against
private parties.

Fundamental Rights in India

The Fundamental Rights included in the Indian constitution are

guaranteed to all Indian citizens.[3] These civil liberties take primacy over
any other law of the land. They include individual rights common to most
liberal democracies, such as equality before the law, freedom of speech and
expression, freedom of association and peaceful assembly, freedom of
religion, and the right to constitutional remedies for the protection of civil
rights such as habeas corpus. In addition, the Fundamental Rights for Indians
are aimed to topple the inequities of past social practices. They abolish the
practice of untouchability; prohibit discrimination on the grounds of
religion, race, caste, sex, or place of birth; and prohibit traffic in human
beings and forced labor. They even protect cultural and educational rights
of minorities by ensuring them to preserve their distinctive languages and
establish and administer their own education institutions.

There are six fundamental rights enshrined in the Indian Constitution.

Right to equality is included in Articles 14. 15, 16, 17 and 18 of the
constitution. It is the principal foundation of all other rights and liberties.
Article 14 describes that all citizens of India shall be equally protected by
the laws of the country. Article 15 of the constitution provides that no
individual shall be discriminated on the basis of caste, colour, language etc.
However, the State may make any special provision for women, children,
and for socially or educationally backward class or scheduled
castes or scheduled tribes. Article 16 of the constitution defines that the
State cannot discriminate against anyone in the matters of employment
However, there are some exceptions, the parliament has the right to enact
law/s describing that certain jobs can only be filled by the applicant/s who
are domiciled in the area for the post that require knowledge and the
language of the locality or the area. The state may also reserve posts for
members of educationally and economically backward classes, scheduled
castes and tribes for their adequate representation in the jobs. Article 17
abolishes the practice of untouchability. Article 18 of the constitution
prohibits state from conferring any titles. This means that the citizen of
India cannot accept titles from a foreign state.
But Military and academic distinctions can be conferred on the citizens of
India and also the awards of Bharat Ratna and Padma Vibhushan cannot
be used by the recipient as a title.

Except the right to equality, the Constitution of India provides the

right to freedom, given in articles 19, 20, 21 and 22. Freedom of
speech and expression (it includes the freedom of press), freedom of
assemble peacefully without arms, freedom to form associations or unions,
freedom to move freely throughout the territory of India, freedom to reside
and settle in any part of the territory of India, freedom to practice any
profession or to carry on any occupation, trade or business are some of the
freedoms which are provided to Indian citizen.

However, at the same time these freedoms can be restricted in

the interests of public order, morality and the sovereignty and
integrity of India. Freedom of speech and expression, generally
interpreted to include freedom of the press, can be limited "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"

The constitution also guarantees the right to life and personal liberty
under article 20 and 21. Article 20 states that no individual can be awarded
punishment which is more than what the law of land prescribes at that time.
This legal axiom is based on the principle that any criminal law cannot be
made retrospective. Therefore, the essential condition for an act to become
a crime or offence is that it should have been an offence legally at the time
of committing it. It also provides that no person can be convicted twice for
the same offence. Article 21 declares that no citizen can be denied his/her
life and liberty except by law. Therefore, an individual’s personal liberty
can only be disputed if the person has committed a crime. This right does
not include the right to die thus suicide or an attempt thereof is an offence.

Rights of a person arrested under ordinary circumstances are laid

down in the right to life and personal liberty. No person can be arrested
without being informed about the grounds for his/her arrest. If arrested the
person has the right to defend himself by a lawyer of his choice and also
the arrested citizen has to be brought before the nearest court within 24
hours

In 2002, Article 21 (A) was incorporated by the 86th constitutional

amendment act. The primary education has been made a fundamental right
under the right to life and personal liberty. It says that “to the children in
the age group of six to fourteen years shall be provided free and compulsory
education” by the state.

There are provisions that state can impose restrictions on these rights
for the interest of independence, sovereignty and integrity of India.
Nevertheless, the right to life and personal liberty cannot be suspended.
The six freedoms described above are suspended automatically or bear some
restrictions imposed on them during the state of emergency.

Article 23 and 24 provides the right against exploitation. It has two

provisions, one being, the abolition of trafficking in human beings and Begar
(forced labor) and other the abolition of employment of children below the
age of 14 years in dangerous jobs like factories and mines.

Articles 25, 26, 27 and 28 of the constitution cover the right to

freedom of religion. The objective of this right is to maintain secular nature
of Indian state. Thus all religions are considered equal before the state and
no religion shall be given preference over other. Citizens are free to preach,
practice and propagate any religion of their choice. It also includes the
freedom not to practice a religion and to propagate such views. However,
the state can restrict certain practices of religions in the interests of public
order, morality and health, say for example the wearing and carrying
ofKirpans in the profession of the Sikh religion can be restricted by the
state. There are some other provisions like religious communities can set up
charitable institutions and no Individual shall be compelled to pay taxes for
the promotion of a particular religion. It should also be noted that the
institution/s run by the state cannot impart education that is pro-religion

Article 29 and 30 provides special measures to protect the rights of

the minorities. While article 29 applies to all the citizens of India, article 30
deals with the rights of minorities. Any religious or linguistic community that
has a language and a script of its own has the right to conserve and protect
them. State cannot discriminate any citizen against for admission in State or
State aided institutions.

All minorities, religious or linguistic, can set up their own educational

institutions in order to preserve and develop their own culture. In granting
aid to institutions, the State cannot discriminate against any institution
based on the fact that it is administered by a minority institution. Although
state can interfere in case of maladministration.

Article 32 of the constitution deals with the right to constitutional

remedies. It empowers the citizens to seek a court of law in case of any
denial of the fundamental rights, by asking the courts to preserve or
safeguard the citizen’s fundamental rights. It can be done in various ways,
for example the courts can issue various kinds of writs. These writs
arehabeas corpus, mandamus, prohibition, quo
warranto and certiorari. This right can be suspended by the central
government in case of a national or state emergency is declared.

Except this there was a provision for right to property under Articles
19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold
and dispose off property. Article 31 provided that "no person shall be
deprived of his property save by authority of law. The 44  constitutional
th

amendment act of 1978 deleted the right to property from the list of
fundamental rights. A new article (Article 300 A) was introduced which says
that ‘no person shall be deprived of his property save by authority of law’.
Therefore, if a legislature makes a law that deprives a person of his
property, there would be no obligation on the part of the State to pay
anything as compensation. The aggrieved person shall have no right to move
the court under Article 32. Thus, the right to property is no longer a
fundamental right, but a constitutional right.

Rights simply mean the freedom which is necessary for the individual
good and at the same time for the good of the community. The fundamental
rights guaranteed under the Constitution of India have been incorporated
into theFundamental Law of the Land and are enforceable in a court of
law. However, this does not mean that they are absolute or that they are
immune from Constitutional amendment.

Critical Analysis of the Fundamental Rights in India

These rights have been criticized for a number of reasons. There is

criticism of the provisions of preventive detention and suspension of
Fundamental Rights in times of Emergency. The provisions of acts like MISA
(Maintenance of Internal Security Act) and NSA (National Security Act)
are criticized as a means of attacking the fundamental rights. These acts
sanction excessive powers to fight the internal, cross-border terrorism and
political violence, but do not safeguards thecivil rights. The phrases like
"security of State", "public order" and "morality" have a wider implications.
The meaning of phrases like "reasonable restrictions" and "the interest of
public order" have not been explicitly defined in the constitution, and this
ambiguity leads to unnecessary litigation. The freedom to assemble
peacefully and without arms is also criticized due to use of force by police
(in some instances) to break up the meetings. The fundamental rights does
not include freedom of press in the right to freedom, which is necessary for
formulating public opinion and to make freedom of expression more
legitimate.

Some critiques feel that the rights benefit only a few in the country,
mainly the rich. The Constitution makes no difference between the rich and
the poor, but in practice the poor are unable to demand or fight for their
rights, as they do not have the money to go to court. The rich with the
capacity to go court are able to stand up for their rights. Besides, many of
these rights obstruct progressive legislation in the interest of socio-
economic development. If one subscribes to the idea of a democratic polity,
one cannot quite agree with the idea of removing the rights to facilitate
social welfare. The Fundamental Rights chapter does check State tyranny
which could ensue in the name of social welfare measures. The right way is
to empower the disadvantaged sections of the population with free legal aid
and educate all people about their rights (as well as duties).

Fundamental Rights are basic to a democratic polity, and, with all the
shortcomings of their enunciation in the Indian Constitution, their inclusion
in the Constitution has protected the basic human rights of the individual
well. 
Directive Principles of State Policy

Part IV of the constitution (Article 36-51) contains the Directive

Principles of State Policy.[4] Finalized by the Sapru Committee, these
Directives are in nature of directions to the legislative and executive wings
of the government to be observed while formulating laws and policies. Most
of them aim at the establishment of economic and social democracy which
is pledged for in the preamble.

A Survey of the Directive Principles

Articles 36 and 37 define the term state and lay down that the
provisions in Part IV shall not be enforceable by courts. Article 39 of
the constitution requires the state to direct its policy towards
securing adequate means of livelihood for all citizens, the citizens,
men and women equally, have the right to an adequate means of
livelihood, the ownership and control of the material resources of
the community are so distributed as best to subserve the common
good, the operation of the economic system does not result in the
concentration of wealth and means of production to the common
detriment. In addition to this, Article 39A added by the
42  Amendment. It wants the state to ensure equal justice and free
nd

legal aid to poor. Organization of village panchayats and endow

them with such powers and authority as may be necessary to
enable them to function as units of self-government is suggested in
Article 40. Article 41, 42, and 43 suggest the right to work, to
education and to public assistance in certain cases, provision for
just and humane conditions of work and maternity relief, living
wage, etc., (for workers), and the participation of workers in
management of industries. Article 44 deals with the concept of
Uniform civil code for the citizen, means that all religions should be
governed by one uniform law. Article 45 and 46 suggest for free and
compulsory education for children, and promotion of educational
and economic interests of Scheduled Castes, Scheduled Tribes and
other weaker sections of the society. Article 47 expects the state to
raise the level of nutrition and the standard of living and to improve
public health. While Article 48 deals with the organization of
agriculture and animal husbandry, Article 48A suggests for the
protection and improvement of environment and safeguarding of
forests and wild life. Article 49 concerns with the protection of
monuments and places and objects of national importance and
Article 50 expects the separation of judiciary from executive. At last
Article 51 of the Directive Principle deals with the concept of
promotion of international peace and security

The State shall endeavor to promote international peace and security,

maintain just and honorable relations between nations, foster respect for
international law and treaty obligations in the dealings of organized people
with one another; and encourage settlement of international disputes by
arbitration. Many of the Directive Principles are influenced by Gandhian
philosophy.

Implementation of the Directive Principles

While the Directive Principles have not been fully translated into
action, it cannot be denied that the various governments have put in some
effort in this direction. The Directive in Article 39(b) has influenced
legislation to fix land ceilings and remove intermediaries such as Zamindars;
Article 40 has led to several laws for organizing village panchayats; Article
43 is seen working in the formation of several boards to help develop
cottage industries; legislations for compulsory education at primary level
exists as directed by Article 45; various measures have been taken to
protect historical monuments, forests and wild life. Efforts have been made
to organize agriculture along modern and scientific lines. Cow slaughter is
banned in many states. A legal aid system has been established.

However, on the whole, implementation of the legislations giving

importance to the Directive Principles has been slow and has not shown
desired effect of removing economic, social and political injustices, nor has
the tendency of wealth being concentrated in a few hands been retarded.
Prohibition has proved a sad experience as states find themselves caught in
the dilemma of practical difficulties and loss of revenue. Political parties
are reluctant to agree to structural changes in the existing property
relations because they do not want to hurt their vote banks.

Significance of the Directive Principles

The Directive Principles are not enforceable in courts. So what is the

utility of including them in the Constitution? How can a Government be
made to implement them? It may be pointed out, however, that no
Government can afford to ignore them without running the risk of apply
these principles in making laws. The Directives amplify what is said in the
Preamble, that the goal of Indian polity is a welfare state. They are ‘moral
precepts’ and the courts are increasingly talking the Principles into
consideration while interpreting the Constitution.

Fundamental Rights and Directive Principles: A Comparison

There is no doubt that both the Fundamental Rights and the Directive
Principles of State Policy are important features of the constitution.
However, they differ from each other in certain points. For example, the
Fundamental Rights seek to protect the individual from state encroachment
but the Directive Principles are aimed at the promotion of the general
welfare of the society. The Fundamental Rights constitute some limitations
upon the State action and the Directive Principles are positive instruction to
the Government to take steps to establish a just social, economic and
political order. The Fundamental Rights are justifiable, any citizen can seek
court’s assistance if he/she is denied the rights guaranteed to them or if
their rights are violated by individual or state but the Directive Principles
are not enforceable by the courts if the state has not implemented them. If
there is no law enacted to carry out the policy stipulated in any of the
Directives, no individual or the state, for that matter, can violate any
existing law under the pretext of following a Directive. In other words,
legislation is required before any Directive is implemented. The
Fundamental Rights, on the other hand, are guaranteed by the constitution.

Human Rights Discourses in India

There are three major specific course of human rights discourse in the
Indian context

Civil and Political Rights[5],

Rights of the Marginalized (such as women, Dalits and Adivasis) and

Economic, Social and Cultural Rights.

Civil and Political Rights

The late 60s and early 70s is known as the years of various movements
and political formations due to the growing disappointment with the state.
It was the period when Congress was bifurcated into Congress (O) led by Old
Guard and Congress (R)[6] led by Indira Gandhi. But later Congress (R)
became the main Congress and Indira Gandhi as its main leader. But the
successive years followed some movements like Nav Nirman movement in
Gujarat (1974) and Jai Prakash Narain agitation against Congress regime,
due to corruption in Congress regime, price rice insufficient generation of
employment etc. these developments were not tolerated by Indira Gandhi
regime and insecurity of her government caused imposition of Emergency
(1975-77). During that period most of the civil and political rights were
suspended. Almost all the political opponents, activists and critique of the
government were imprisoned. It was the period when every civil and
political rights guaranteed by the constitution to the citizens were violated
by the state. The emergency is marked out by a black spot in the history of
democracy in India. Custodial violence, arbitrary detention and police
atrocities etc caused the serious violation of human rights against the
citizens of India.

In the last 20 years, the movement for civil and political rights
has become much more lucid and extensive. It has developed
beyond a set of urban middle class liberal intellectuals to a wide and
diverse socio-political base. With the increase of insurgencies in the
1980s and the resulting State suppression of separatist movements
in different parts of the country, caused the incidents of violation of
basic human rights to most of the citizens. It is this period when
various human rights organization began to appear. The Sikh
massacre in 1984, followed by the assassination of Mrs Gandhi,
raised serious questions about the role of the state in protecting the
fundamental rights of the citizens.

The rise of right-wing Hindu communalist forces, the biased State

machinery and increase of the incidents of communal violence in recent
years have given rise to a different set of actors who put emphasis on the
civil and political rights of the minority communities. The communal
violence in Gujarat (2002), where more than 1,000 people were killed and
hundreds of homes and shops destroyed and looted, portrayed the inherent
contradictions in the Indian polity and State. But the rise of these sectarian,
fanatical and communal forces and their anti-human rights image provided a
way for bringing human rights activists across the political spectrum,
including leftist groups and minority rights groups together.

The recent ongoing human rights violation of Hindi-belt people in

Assam and Maharashtra also portrays the negative picture of human rights
situation and state response to it. Therefore the condition of civil and
political rights in India has been in a very haphazard situation. No doubt the
constitution provides safeguards of basic rights of every citizens of India;
the real picture shows a different story.

Rights of the Marginalized

 The civil and political rights as discussed above focused largely on the
rights of individual, but the mid 70s witnessed a new development of human
rights discourse in India, which was based on group rights, collective rights
and people rights for the economic, social and political empowerment of the
marginalized groups, like women, Dalits, and Adivasis (Tribals).

The women’s movement emerged in the 1970s. The committee on

Status of Women submitted a report in 1974 describing the marginalization
of women in every sphere of life. The emergence of some women’s groups
like Self Emloyed Women’s Association, (SEWA), All India Democratic
Women’s Association (AIDWA), Manushi, Joint Women’s Forum and Centre
for Struggling Women etc raised a new consciousness and public debate on
the issue of status of women. These organizations raised voice against
domestic violence, dowry, rape, custodial violence, trafficking, sexual
harassment in work place or educational institutions and invisible labour of
women in their household etc.

The women's movement not only presented a critique of the Indian

patriarchy, casteism and feudalism, it also endorsed a new awareness of
women's rights. Though the movement initially emerged as a largely urban
movement, but now it has developed as one of the most articulated and
widespread movements in India, with new campaigns for political
participation of women and their rights.

It is partly the pressure from these women’s movements that the

73  and 74  constitutional amendments provided 33% reservation for women
rd th

in local self government institutions in India.

In the post-Emergency years, emphasis on social mobilization of

marginalized groups is witnessed. A number of political and social activist
etc focused on the movements of Dalits or Tribal rights. These activists
highlight the historical and structural marginalization of Dalits, Tribals and
landless labourers. The empowerment of these groups has become a key
concept in contemporary politics and social discourses. Affirmative action
(like reservation for these marginalized groups in educational institutions
and public jobs, program and policies for their economic, social and political
development) is done by the state to enable them for a dignified life. The
Social and political activists working in the field of rights of marginalized
use the term People rights to emphasize the collective characteristics of
their rights and to focus on political aspects of their rights.

Therefore, from the mid 80s there have been continuous efforts to
describe and re-articulate the rights of dalits, Tribals over natural resources
etc.  This became more articulated and vocal, when issue of displacement
because of large dams, developmental projects, forestry projects, mining
companies etc, came into existence. Most of the sufferers of these
displacements were Dalits and Tribal people. The movement like Narmada
Bachao Andolan, the Fishworker’s struggle and Dalit movements brought the
issue of the marginalized communities into the mainstream political
discourse in India.

Economic, Social and Cultural Rights

The unequivocal focus on Economic, Social and Cultural (ESC)

Rights is comparatively new when compared to civil and political
rights or group rights. The appearance of ESC rights in the
mainstream development agenda is related with the emergence of
more institutionalised and funded efforts for the eradication of
poverty and social development of the masses. These initiatives
generally termed as Non Governmental Organizations (NGOs). In
the initial years, many such NGOs commenced with a welfarist
approach, with an effort to supplement or substitute the welfare
State.

However, over a period of time there has been an extensive

realisation of the limitations about these micro-level development
projects and poverty eradication programmes, as they do not
question the politics and programs that disseminate deprivation
among the masses. Thus primarily because of this contradiction,
there was felt a need to bridge the micro-level program and macro-
level political and policy formulation became relevant, resulting the
rise of some grassroots level action groups and the mass
movements of Women, Dalits, Tribals and landless poor to
pressurise and influence the State to meet its obligation to fulfil  the
ESC rights.
 The active judiciary has also served for the development of the scope
of fundamental rights which resulted into the integration of economic and
social rights in its arena. It expanded the scope of Article 21 of the Indian
Constitution which guarantees the Right to Life and suggests  that the right
to life means the right to live with dignity, and that the right to live with
dignity includes the right to livelihood, right to education and right to
health. 

The various World Summits on ESC rights, starting with the Vienna
Summit on Human Rights in 1993, encouraged to bring ESC rights into the
agenda of many international developmental organizations. Thus different
groups have taken up the issue to promote specific rights. This contains the
campaign for the fundamental right to education. Therefore, the 86th
constitutional amendment of the Indian Constitution, guarantees the
fundamental right to education. There have also been parallel campaigns for
the rights of self-employed women and unorganised workers including the
right to universal healthcare and some other campaigns which focus on
economic, social and cultural rights.

To protect the rights of consumers and people, the

environmental and consumer protection movements (from 1980s)
suggested the way for a series of new legislations and policy
interventions. The Adivasi (tribal) movement and the increasing
marginalisation of the minority groups by the right-wing forces have
brought the concept of cultural rights into public debate and policy
discourse.

While the period of 1970s can be termed as the decade of the civil
liberties movements, the 1980s observed the appearance of group rights and
people's rights over resources and livelihoods. But the 1990s witnessed the
emergence of ESC rights, causing the rights-based reorientation through the
international development organizations and the political impulses on the
ground and the increased visibility of the rights discourse provided the right
conditions for advocating ESC rights.

Making Human Rights Work: Indian Judiciary and other

Human Rights Institutions in India

Human Rights and Indian Judiciary

The Indian judiciary occupies a unique place in Indian democratic set

up. As an interpreter of the Constitution, the Indian judiciary is an
independent organ of state and contains the power to strike down
executive, quasijudicial and legislative actions as unconstitutional. The
Supreme Court’s interpretation of the law is binding to all the higher or
lower courts within the Indian territory. Except this, all authorities like civil
or judicial in India shall act in aid of the Supreme Court. It is armed with the
power to punish for contempt of the law or court and also reinforces the
position of the judiciary as a Constitutional authority that enforces
accountability and answerability of the other organ of the state.

In recent years, it is witnessed that the court has emerged as a

dynamic institution which play active role in the task of expanding the scope
and content of individual and collective rights of the citizens in civil and
political spheres and in the economic, social and cultural spheres.

Nature of Court Orders

The enforcement of orders declared by courts is heavily dependent on

the nature of its orders, primarily there are two aspects of court’s order

a) Declaratory and b) Mandatory

While declaratory orders and judgments (without substantial

directions to the state authorities) have to await the acceptance of their
binding nature under Article 141 & 144 by the state and
the mandatory orders, on the other hand, are grounded on the general
indifference displayed by the executive to move to action and spell out a
plan of action as well as a time schedule within which compliance with court
orders is expected.

The Unnikrishnan JP vs. State of Andhra Pradesh[7] is the

example of declaratory orders, in which the court held that the right to
education is implicit in and flows from the right to life guaranteed under
Article 21 of the constitution, which includes that a child who is a citizen of
India has the fundamental right to free education upto the age of 14 years. 
After nine years of this jurisdiction, the nineteenth constitutional
amendment act came into force as a response providing Article 21 A which
entitles free education to every child between ages of 6- 14 years.
 The Bandhua Mukti Morcha Case[8] is the example of Mandatory
orders by court. In this case the court pronounced that the non-enforcement
of welfare legislation like the Minimum Wages Act, 1948 and the Bonded
Labour (Abolition) Act, 1976 would equivalent to denial of the right to live
with human dignity enshrined under Article 21 of the Constitution.
The Asiad Working Case and the Olga Telis Case[9] are also the
examples of this mandatory order, where the court clearly describes these
incidents as the violation of Article 21 and gave judgments in favor of the
sufferers. Ban on Child labor can also be referred as an example of this
category.

Debate on Judicial role in the arena of Human Rights

There are two kinds of arguments in judicial intervention in the arena

of Human rights, one is positive implicationsand other is negative
implications of court’s order.

Positive Implications

In the case of Vishaka[10] on the issue of sexual harassment of

women in the workplace, the Supreme Court provided recognition and
enforcement of the right to access judicial remedy against the injury caused
to women at the work place. The Supreme Court’s jurisdiction of free
education to every child between ages of 6-14 years protects the basic
rights to education of every child of India.[11] In the Paschim Banga
case[12] the right to emergency medical care for accident victims, the
court protects the right to health of every citizens of India and lastly the
environmental issues enabled the court to develop and apply the polluter
pays principle, the precautionary principle and the principle of restitution.
[13]

Negative Implications

Because of this court’s intervention, there may be a situation of

conflicts of rights, for example, the court’s decision to close a polluting
abattoir in Delhi has also affected the livelihoods of butchers.[14] This
intervention may lead a negligence of accounting for competing public
interests. For example, while ordering the closing of a polluting industry or
ban of child labor, the workmen and their families may be affected
adversely and their issues may go unheard or unnoticed. There may be
instances of challenges to the legitimacy of court’s order due to continued
non-implementation of a declaratory judgment. It is debatable question
whether the use of contempt of power (due to problem/s of lack of
resources), is indeed the best or only way of guaranteeing implementation
of the orders.

In spite of some shortcomings, Indian judiciary is playing an active role

in implementing and protecting the basic rights of its citizens. The court is
also providing a platform for the state, civil society organizations (like NGOs
or some other social organizations), activists or institutions of human rights
to engage in the scheme for realization and protection of human rights of
Indian citizens.

National Human Rights Commission

It was established on 12th October, 1993 under the legislative

mandate of the Protection of Human Rights Act, 1993. Over the past few
years, the Commission has given a positive meaning and a consent to the
aims set out in the Protection of Human Rights Act, 1993. It has been armed
through this Act to promote and protect human rights in the country. While
enterprising the tasks set out in the Protection of Human Rights Act, 1993, it
has noticed several loopholes in the Act over the past few years. Therefore,
the commission put emphasis on the need to review and amend the Act of
1993 for the proper and effective functioning of the Commission.[15]

The Commission generally takes up the issues involving cases of human

rights violation that are of significance, either through suo moto, or when
the civil society organization, the media, concerned citizens, or expert
advisers, bring the cases to its notice. It focuses on the protection of human
rights to all section of society, particularly the vulnerable or marginalized
sections of the society.

A significant increase in public awareness of the work of the

Commission has been witnessed. This is partly reflected in the growing
number of the complaints of human rights violations, which have been
received by the Commission over the past few years. The Commission
divides the cases in these following categories: (1) Custodial deaths; (2)
Police excesses (Torture, Illegal detention\ unlawful arrest, false implication
etc.; (3) Fake encounters; (4) Cases related to Women and Children; (5)
Atrocities on Dalits\Members of Minority community\ Disabled (6) Bonded
labour (7) Armed forces\ para military forces and (8) other important cases.
[16]   

Once the Commission receives a complaint from any individual or civil

society organizations etc, it asks statements from the concerned
government or authority regarding complaint. After receiving the comments
from the concerned authority a comprehensive note on the merits of the
case is prepared for the consideration of the Commission. Once this process
is completed a detailed directions and recommendations by the Commission
are communicated to the concerned government under Sections 18 and 19
of the Act.

Since its establishment in October 1993, the commission has issued

compensation in the amount of Rs. 9,76, 68,634 to be paid in 559 cases.
[17] In year 2002-2003 the Commission recommended the compensation
 

amount of Rs. 31, 40,000 to be paid in 39 cases.[18] The Commission during

 

the period beginning from 1 April 2002 to 31 March 2003 lodged 68,779 cases
and in the same period for 2001 to 2002 the Commission registered 69,083
cases.[19] Out of 68,779 cases placed before the commission in the year
  

2002 to 2003, 67, 354 complaints related to human rights violations, 1340
related to custodial deaths, 2 concerned custodial rapes and 83 related to
police encounters were found.[20] Till 31March 2003, the total number of
 

cases of human rights violation which were placed before the  Commission
was 43,010, out of which, 9763 cases were awaiting for preliminary
consideration and 33,247 cases either reports were awaited from the
authorities concerned or the reports had been received and are pending
further consideration within the Commission.35

National Human Rights Commission v. State of Arunachal

Pradesh

The Commission under Article 32 of the Indian Constitution registered

a writ petition as a public interest petition before the Supreme Court of
India.[21] The Commission filed this petition mainly to enforce of
 

fundamental rights of about 65,000 Chakma\ Hajong tribals under Article 21

of the Constitution. In this case due to Kaptain Hydel Project,  a huge
 

number of refugees from former East Pakistan[22] were displaced in 1964.

 

These displaced Chakmas took shelter in North-Eastern States of India, like,

in Assam and Tripura. There were two foremost issues involved in this case,
one being the conferring of citizenship and other fear of maltreatment by
certain sections of the people of Arunachal Pradesh. Largely to deal with
these two issues NHRC was approached by two different NGOs.

In this case the Commission argued before the Court that the
Commission received some complaints against All Arunachal Pradesh
Students Union (AAPSU) to Chakmas and their act was appeared to be
supported by the officers of Arunachal Pradesh. The State government
intentionally delayed the disposal of the matter by not furnishing the
required response to NHRC and infect supported the enforcement of eviction
of the Chakmas from the State through its agencies.[23]

The Court after hearing the argument asked the government of

Arunachal Pradesh to guarantee the life and personal liberty of each and
every Chakma who are residing within the State. This decision defines that
foreigners are entitled to enjoy the protection of right to life and liberty
under Article 21 of the Indian Constitution. Timely intervention by the
Commission has saved the life of thousands of innocent Chakma refugees
from AAPSU.

Indian Council of Legal Aid and Advice and others

The Commission took action on a letter from Chaturanan Mishra (then

Union Minister for Agriculture) on 3rd December, 1996, about the starvation
deaths in Bolangir district of Orissa, due to the drought. In related matter a
Writ petition[24] was filed by the Indian Council of Legal Aid and
 

Advice and others  on 23 December 1996 before the Supreme Court of

India under Article 32 of the Constitution. The petition claimed that deaths
by starvation continued to occur in certain districts of Orissa. The Supreme
 

Court of India on 26th July 1997 gave judgment that because the matter is
seized with the NHRC and is expected to deliver some order, the petitioner
can approach to the Commission. Supporting the view that to be free from
hunger is a fundamental right of the people, it acted quickly on this matter
and prepared an interim measure for the period of two years and also
requested the Orissa State Government to form a Committee to inspect all
aspects of the Land. The Commission has endorsed the establishment of a
Core Group on Right to Food that can give advice on issues referred to it and
also propose appropriate programmes, which can be undertaken by the
Commission.[25]

Punjab Mass Cremation Order

 Two writ petitions were filed before the Supreme Court of India
 

which contains serious allegations about large-scale burials of

people by the Punjab Police, allegedly killed in what were termed as
“encounters”.[26]These petitions were mainly based on a press
release of 16 January 1995 by the Human Rights Wing of the
th 

Shiromani Akali Dal titled “Disappeared” “cremation ground”. The

press release charged that the Punjab Police had cremated a large
number of human bodies by arguing that they were unidentified.
The Supreme Court after a close examination of the report handed
it over to CBI for further inquiry. Central Bureau of Investigation
(CBI), after examination of the report concludes that 585 dead
bodies were fully identified, 274 partially identified and 1238
unidentified. This report exposes deliberate violation of human
51 

rights on a large scale. On 12 December 1996 the Court requested

the Commission to examine the matter in accordance with law and
resolve all the issues related with the case. Though matter is still
pending before the Commission for final consideration, however, the
Commission granted in some cases compensation amounting of
Rupees Two Lakh Fifty thousand (Rs. 2,50,000/-) to the next of kin
of the 89 deceased persons.[27]

Gujarat Communal Riot

The commission took suo motu  action on the incident of communal

violence against Muslims, which took place in Gujarat in March/April 2002.
The decision to take action was primarily based on the reports of print and
electronic media.[28] A team of the Commission visited Gujarat between19
to 22 March 2002 and prepared a confidential report, which is latter made
to the public.[29] Unfortunately, the State government did not bother
much about this report.   

Action in the case of Rohtak fire cracker unit blast in Haryana

The Commission took sup-motu action on the basis of press reports,

which says about an explosion at a fire cracker factory in Tohtak, Haryana
on 24 May 1995 and issued notice to the State Government calling for a
report. The press reports claims the death toll at 23, which included 13
women, 6 children and 4 men.

 
Compensation to the next of kin of riot victims in Gujarat in
1993 Communal Riots

The Commission received a complaint from Bashir Ahmed Mir of

Jammu & Kashmir, which stated that Gulab Nabi Bandey and Zahir Ahmad
Bandey, (his relatives) were killed in Surat, during communal riots of 1993,
followed by Baburi mosque demolition. Upon the intervention of the
Commission, a sum of Rs. 2, 00,000/ was sanctioned to the heirs of who died
in communal riots in Surat,

Atrocities against minorities: Killing of Australian missionary

and his sons: Orissa

On Janurary 25, 1999, the Commission took suo-motu action against

killing of Australian missionary and his sons. The Commission also expressed
its deep shock and pain at the attacks on the members of the Christian
community in Madhya Pradesh, Gujarat and Orissa, these incidents had been
extensively reported in the Press. The Commission observed that given the
persistent character of these grave occurrences, a pattern transcending any
single State appeared to be emerging, threatening the pluralistic character
of the country and constitutionally guaranteed human rights to the people
and suggested the state/s to prevent the recurrence of such tragic events.

The National Human Rights Commission has taken suo-motu action

against the distressing press report (The Times of India", New Delhi;
dated 21.10.08) which highlights the incidents of attack on north Indian
aspirants for railway jobs by the Maharashtra Navnirman Sena. It has issued
notice to the Chief Secretary, Government of Maharashtra and the Director
General of Police, Maharashtra for their comments within two weeks. The
Commissions in its notice said that the news of the press report, if true,
raise grave problem of violation of human rights of the citizens of the
country.The Commission in numerous cases recommended
prosecution of the public servants, who had been responsible for
violation of human rights, under section 18(1) of the Act. In this
case of violation of human rights in Maharashtra, the Commission
may recommend under Section 18 (3) of the Act that the concerned
State to grant immediate interim relief to the victim or members of
the family.

The National Commission for Minorities

 The NCM is a body constituted by the Government of India to
monitor and evaluate the progress of people classified as minorities by the
Indian government. Essentially the minorities in India consist of followers of
all religions other than Hinduism and weaker sections in the Hindu
community. The Commission is also referred to as the Minority
Commission. It was formed as a result of an act of the Indian
Parliament in 1993.

Functions and powers

The Commission’s to evaluate the progress of the development of

Minorities under the Union and States, to monitor the working of the
safeguards provided in the Constitution and in laws enacted by Parliament
and the State legislatures, to make recommendations for the effective
implementation of safeguards for the protection of the interests of
Minorities by the Central Governments or the State Governments,
and to look into specific complaints regarding deprivation of rights
and safeguards of the Minorities and take up such matters with the
appropriate authorities.

The work done by NCM in protecting Minority Rights

In its meeting on July 1998, the commission discussed the complaints

against the violation of human rights of minorities in Gujarat. The
commission decided to send a fact finding team (NCM team) to Gujarat
headed by its member, Mr. James Massy. The NCM toured to Gujarat
between 10-12 August in various parts of the state and met with the
persons, groups and the office bearers of the state government, collected
and recorded evidence and examined witnesses. The main incidents which
looked into depth were, a) alleged exhuming of a corpse from a Christian
cementry in Kapadganj in old Khera district, b)alleged burning of the holy
Bible in a school in Rajkot city and c0. alleged harassment of the Muslims of
village Randhikpur as a reaction to some inter-religious marriage.[30]  The
commission urged the concerned constitutional authority in Gujarat to take
effective steps to maintain complete religious harmony in the state,
ensuring that the fundamental rights are freely enjoyed by the citizens of
the state. It also provided some recommendations to the Gujarat
government and to lay it before the state legislature and to act on the
statutory requirements as soon as possible and also expressed its will to
provide any cooperation that may be required in the matter by the state
government. But nothing worked out, as in 2002 Gujarat witnessed the
worst incident of communal violence against Muslims. The NCM took a grave
concern over the issue but no action is taken by the state government.

As far as development of Minorities is concerned, the commission

submitted its report on 31  March 2002 to review the working of the
st

constitution for minorities and backward classes. In this report the

commission dealt with the problems of Muslims, Scheduled Castes,
Scheduled Tribes and women. The NCM also recommend some measures for
development of minority communities, particularly the Muslims. In this
recommendation the commission also supported the idea of reservation for
backward Muslims under Article. 15 (4) and 16 (4). This opens doors to
appoint a commission to establish whether the Muslim community and/or
any section who constitute a backward class, and if it does, to determine
the question of reservation in their favour as has already been done in
Kerala and Karanataka.[31]The main objective of the commission is to
emphasize that the life, honor and dignity of minorities must be protected,
their identity must be respected and the laws should be implemented
effectively for their better protection.

National Commission for Women

It is a statutory body for women in the Indian Union. The Commission

is established under specific provisions of the Indian Constitution.[32]

Activities

The main concern for the NCW is to provide a voice for the problems
faced by the women, thus it represents the rights of women in India They
have actively worked and campaigned against injustices, which hampers the
human rights of women, such as dowry, equal representations for women in
jobs, politics, religion, domestic violence, cases of rape, sexual harassment
in work place or educational institutions and the exploitation of women in
labor. The commission regularly publishes a monthly newsletter, "Rashtra
Mahila" in Hindi and English.

Functions of the Commission

The Commission can investigate and examine all matters relating to

the safeguards provided for women under the Constitution and other laws.
For example it can present to the Central Government, (annually and at
such other times) the reports upon the working of those safeguards to
protect women’s rights and can make in such reports recommendations for
the effective implementation of those safeguards for improving the
conditions of women by the Union or any State. It is empowered to review,
from time to time, the existing provisions of the Constitution and other laws
affecting women and recommend amendments thereto so as to suggest
remedial legislative measures to meet any lacunae, inadequacies or
shortcomings in such legislations and can take up the cases of violation of
the provisions of the Constitution and of other laws relating to women with
the appropriate authorities. The Commission also looks into the complaints
and takes suo moto notice of matters which relates to a). deprivation of
women's rights; b). non-implementation of laws enacted to provide
protection to women and also to achieve the objective of equality and
development; c). non-compliance of policy decisions, guidelines or
instructions aimed at mitigating hardships and ensuring welfare and
providing relief to women, and take up the issues arising out of such matters
with appropriate authorities; d) call for special studies or investigations into
specific problems or situations arising out of discrimination and atrocities
against women and identify the constraints so as to recommend strategies
for their removal; e). undertake promotional and educational research so as
to suggest ways of ensuring due representation of women in all spheres and
identify factors responsible for impeding their advancement, such as, lack of
access to housing and basic services, inadequate support services and
technologies for reducing drudgery and occupational health hazards and for
increasing their productivity; f). participate and advise on the planning
process of socio-economic development of women; f). evaluate the progress
of the development of women under the Union and any State; g). inspect or
cause to be inspected a jail, remand home, women's institution or other
place of custody where women are kept as prisoners or otherwise, and take
up with the concerned authorities for remedial action, if found necessary;
g). fund litigation involving issues affecting a large body of women; h). make
periodical reports to the Government on any matter pertaining to women
and in particular various difficulties under which women toil and i). any
other matter which may be referred to it by the Central Government.[33]

The Commission also held some public hearings on the issues of the
impact of Globalization, Mechanization and Liberalization on women
workers in the informal sector; Women Bamboo Workers in Malyatorr,
(Kerala); Problems of Share Croppers and rope makers at Patna; Crimes
against women in Uttar Pradesh, West Bengal, Kerala, Orissa, Tamilnadu and
Jharkhand; Problems of Muslim Women in Maharashtra and Rajasthan;
Problems of Beedi and Cigar Workers at Ahmedabad, Thirunalvela and Sagar;
Problems of Construction Workers at  Jaipur, Delhi, Mumbai, Patna and
Bangalore. In order to create awareness about the evils of child marriage,
the Commission organized Bal Vivah Virodh Abhiyan in collaboration with
State Commissions for Women and NGOs. The Commission held several State
level consultations to evolve an appropriate action plan for empowerment of
women besides undertaking visits to States to evaluate the status of women
in the States.

Cases before the National Commission for Women

In a case of, Smt. Bhanwari Devi, a ‘Sathin’ working in the rural areas
of Rajasthan under the State Government’s Women Development
Programme, was allegedly raped by certain villagers for her campaign
against child marriage. Later, the District and Sessions, Judge, Jaipur,
whose court heard this case, acquitted the persons accused of rape. The
press reported this judgment prominently and also reported that a sense of
hostility persisted amongst some persons against the victim. NCW took up
this case with the State Government as also the Government of India. Their
intervention had resulted in the sanction by the Prime Minister of a token
amout of ten thousand rupees as relief to the victim and also entrusting of
the investigation to the Central Bureau of Investigation (CBI). The NCW also
provided financial support to the women’s organization which took up the
litigation on behalf of the victim.

The Commission received a complaint from Smt. Shanti Devi, w/o

Mangelal Rao, (Village Kanana, District Barmer, Rajasthan), who alleged
that for the last 2 years widow pension had been stopped to her by the
concerned authorities, as they had declare her dead. She approached the
concerned department for redressal but no action was taken. On the receipt
of the complaint by NCW, the matter was brought to notice to the District
Collector, Barmer and the Collector provided information to the Commission
about the allegation of Shanti Devi to be correct and necessary instructions
had been issued by the District Collector to the Treasury office, Barmer.
Also the concerned Patwari had been proceeded for stopping the pension on
false grounds. In another case of Ms. Rupali Jain whose services in a school
run by a non-governmental organization were terminated without providing
any reason.The Commission had taken up the matter with the District
Collector, Ferozabad, who reported to the Commission that Ms. Rupali Jain
had been allowed to join back as her grievance was found to be valid. In
another case of Smt. Chanchal Bajaj, a resident of Delhi, who approached
the Commission alleging that she was not allowed to stay in the flat jointly
owned with her son. Her son got married and was staying at Gurgaon in a
rented flat. Smt. Bajaj, after getting flat’s possession, allowed her son to
shift to the Gurgaon flat. Previously, Smt. Bajaj was staying in a government
accommodation but now she is residing in a flat in Delhi on rent which she
cannot afford. Thus, she, too, wanted to shift into the Gurgaon flat, but her
son and daughter in law did not allow her to shift into the flat. The matter
was taken up in the Commission and it held three counseling sessions on the
issue. Thereafter, Sachin Bajaj, son of Chanchal Bajaj gave a cheque of
Rs.5, 49,000/ to his mother after selling the flat at Gurgaon. The matter
was, thus, compromised with the interference of the Commission to the
satisfaction of both the parties. The commission was approached by Smt.
Savitri, a resident of Kotdwar, Uttaranchal, regarding exploitation of her
deaf and dumb daughter Sunita (name changed).  Sunita was studying in a
school in New Delhi.  Savitri was the neighbor of Mahendra Prasad.   Rohit
Kumar (name changed), son of Mahendra Prasad, was also staying at the
same time in R.K.Puram, New Delhi for his studies.  A few years back,
Savitri took out her daughter from the Deaf and Dumb School to her house at
Kotdwar.  Rohit Kumar used to visit the girl at her house in Kotdwar and
during these meetings, developed physical relationship and because of this
Sunita became pregnant.  When the complainant got to know about this, she
pressurized Rohit Kumar to marry her daughter, thus Sunita and Rohit Kumar
were married in July, 2004 in Kotdwar.  The marriage was also registered. 
In August, 2004, Mahendra Prasad renounced his son and daughter-in-law. In
October, 2004, Sunita delivered a daughter, and thereafter, Rohit Kumar
abandoned her.  Due to this injustice, the complainant approached NCW. 
Before approaching NCW, the complainant had approached the police to
obtain justice but she was not heard by anyone.  The Commission summoned
the SP of Pauri Garhwal to the Commission, urging him to take necessary
action.  After the Commission’s intervention, the police traced the husband
and counseled him.  He has now agreed to accept back his wife and
daughter. In a case of 2002, Mrs. Sudha Bala (name changed) was allegedly
gang-raped by some BSF personnel in early 2002 at Gojhadanga at Indo-
Bangladesh Border.  Since then the victim along with her young daughter
had been passing days in the Presidency Jail at Kolkata simply because of
non-submission of charge-sheet by Police although a case under section 376
I.P.C. was registered against the BSF personnel.  The issue was taken up by
the Commission for the release of rape victim from the jail and arrangement
for her rehabilitation. The joint efforts of the National Commission for
Women and the West Bengal State Commission for Women resulted in the
release of Mrs. Das from jail, who was given into safe custody to her
brother. In Gujarat violence of 2002, NCW took a grave concern over the
violation of human rights of women also the National Commission for Women
accused organizations and the media of needlessly exaggerating the plight
of women victims of the riots. Nafisa Hussain, a member of the NCW, went
on record saying that several organizations and the media have needlessly
blown out of proportion the violence suffered by minority women in the
communal riots of Gujarat.

The recommendations by NCW covered various suggestive measures.

The follow up was jointly taken up with State Governments and in few
cases, compliance reports were received. Overall, NCW’s Complaints &
Investigation Cell has been able to make its impact in terms of the numbers
of complaints received and subsequently the desirable remedial action
taken by the Commission were noticed everywhere.

National Commission for Scheduled Castes and Scheduled

Tribes

The Scheduled Castes (SCs) and Scheduled Tribes (STs) are those
people who are explicitly recognized by theConstitution of India who
require special support and assistance from state to overcome centuries of
discrimination by mainstream Hindu society. The Scheduled Caste peoples
are also known as Dalits or lower castes Hindus, and Scheduled Tribe people
are referred to as Adivasis. Articles 338 and 338A, provides two statutory
commissions, one is The National Commission for Scheduled Castes and The
National Commission for Scheduled Tribes for effective implementation of
the various safeguards which are included into the constitution and other
legislations.[34]
History

To provide safeguard against exploitation, injustices etc and to

promote and protect the social, political, economical and cultural interests
of these communities, some special provisions were made in the
constitution.  Due to the existence of undemocratic caste system and their
backwardness, they could not achieve reasonable share in elected office,
government jobs and educational institutions etc. Thus, to ensure their
effective participation in democratic set ups, the policy of reservations for
them was implemented. Except this, the Constitution under Article 338
provided for appointment of a Special Officer. The post of Special Officer
was designated as Commissioner for SCs & STs for effective implementation
of various safeguards provided in the Constitution and was assigned the duty
to investigate all matters relating to the protection of human rights of SCs
and STs.
 The 46  Amendment Act replaced the arrangement of one
th

Member system with a Multi-Member system. Although 338 was

under consideration, the Government decided to set up a Multi-
Member Commission. Thus, the Ministry of Home Affairs in its
Resolution Number. 13013/9/77-SCST (1) dated 21.7.1978,
established the first commission for SCs and STs with Sri Bhola
Paswan Shastri as its chairman. 

This provision for Multi-Member Commission was modified by

the Ministry of Welfare in its Resolution Number. BC-13015/12/86-
SCD VI dated 1-9-1987 and the commission for SCs & STs was
renamed as the National Commission for Scheduled Castes and
Scheduled Tribes.  It was set up as a National Level Advisory Body
with a motive to advise the government on broad policy issues and
the questions of development of these communities. 

The 65  Constitution Amendment Bill 1990, provides a

th

statutory National Commission Scheduled Castes and Scheduled

Tribes. It was constituted on 12-3-1992, which replaced the
previous Commissioner for Scheduled Castes and Scheduled Tribes
and the Commission set up under the Ministry of Welfare Resolution
of 1987.   

Consequently, the 89  Constitution Amendment Act 2003 (which came

th

into force on 19-2-2004), bifurcated the previous National Commission for

Scheduled Castes & Scheduled Tribes into (1) National Commission for
Scheduled Castes, and (2) National Commission for Scheduled Tribes. The
Rules of the National Commission for Scheduled Castes were reported on
20  February, 2004 by the Ministry of Social Justice & Empowerment.
th

Main activities/functions of the public authority 

The functions, duties and power of the Commission have been laid
down in clauses (5), (8) and (9) of the Article 338 of the Constitution. It
shall be the duty of the Commission to investigate and monitor all matters
relating to the safeguards provided for the Scheduled Castes under this
Constitution or under any other law for the time being in force or under any
order of the Government and to evaluate the working of such safeguards; to
inquire into specific complaints with respect to the deprivation of rights and
safeguards of the Scheduled Castes; to participate and advise on the
planning process  of socio-economic development of the Scheduled Castes 
and to evaluate the progress of their development under the Union and any
State; to present  to the President, annually and at such other times as the
Commission may deem fit, reports upon the working of those safeguards; to
make in such reports recommendations as to the measures that should be
taken by the Union or any State for the effective implementation of those
safeguards and other measures for the protection, welfare and socio-
economic development of the Scheduled Castes; and  to discharge such
other functions in relation to the protection, welfare and development and
advancement of the Scheduled Castes as the President may, subject to the
provisions of any law made by Parliament, by rule specify. 

Role of NCSCST in protecting the rights of Dalits

Atrocities on Dalits: Bihar

Commission took steps on killing of 21 Dalits in Jehanabad (Bihar) by

Ranvir Sena (private army of upper caste landlords) on the basis of
newspaper ‘Indian Express’ dated 27 January 1999 captioned "Bihar: old
script, new victims, and upper caste Ranbir Sena kills 21 Dalits in
Jehanabad". According to the Indian Express report (dated January 27,
1999), the persons of Ranbir Sena who were armed with sophisticated
weapons, killed at least 21 people including 6 children and 5 women on 25
January 1999 in Rukhsagar Bigha village under the Mehandia Police Station in
Jehanabad district of Bihar. The victims were all from the backward castes
and included several Dalits.

The Commission paid grave concern and asked for immediate steps to
be taken and bring to book the guilty persons, and to ensure that there was
no recurrence of such incidents.

Police Firing on Dalits in Tamil Nadu

Two persons belonging to the Scheduled Castes from Village

Vashistpuram, District South Arcot were shot dead by Tamil Nadu police on
17 January 1995, while they were trying to protect others of their
community who were being lathi-charged by the police when they tried to
hoist a flag of Dr. Ambedkar in the street. The allegation was that the police
even helped members of other castes to ransack the homes of those
belonging to the Scheduled Castes. Media persons were not allowed to file
any report on the matter in the newspapers. The police had fired two
rounds causing injury to Jyoti and Mahindra, who were hospitalised and later
discharged. However, in the clash, the mob of non-Adi Dravidars had beaten
to death two persons, Shri Shanmugham and Shri Ramesh. The police had
registered the complaint and charge-sheeted the accused persons. The
commission criticized the incidents and supported the direction of NHRC,
which directed the the Chief Secretary, Government of Tamil Nadu to pay
Rupees one lakh as compensation to the wife of the deceased, Shri
Shanmugham, and to give her a job to earn her livelihood. It was also
directed that Rupees One lakh should be paid as compensation to the father
of the deceased, Shri Ramesh, who was also a victim of mob anger. Of the
Rupees One lakh being paid to them, it was directed that Rs.20,000/- may
be paid straight away and the balance Rs.80,000/- kept in a long-term fixed
deposit in a Nationalised Bank with the interest earned being paid to them
every month. The Commission also directed that Rs.30,000/- each be paid to
Shri Jyoti, son of Shri Muthu and Shri Mahindra, son of Shri Peruman, who
suffered bullet injuries at the hands of the police. Of this a sum of
Rs.5,000/- should be paid in cash and the balance of Rs.25,000/- placed in a
long-term fixed deposit in a Nationalised Bank with interest thereof to be
paid to them every month.

It has also examined the incidents of violence against Dalits in Jhajhar

(Haryana), Uttar Pradesh, Bihar, Gujarat, Orissa and some other states
during recent years. The Commission also criticized the Nitish Kumar
government who formed the Mahadalit Commission in September 2007. The
NCSC has declared the Mahadalit Commission as unconstitutional. The NCSC
criticized the move by government by saying that the state government was
not empowered to de-categorize reservation. The state government last
year stated 18 out of the 22 Dalit sub-castes as Mahadalits. The four sub-
castes excluded from the Mahadalit category are Dussadh or Paswan,
Ravidas (Cobblers), Dhobi (Washermen) and Pasi (toddy-sellers). A bench of
the NCSC held a meeting under the chairmanship of Buta Singh, to express
its objection to the one-sided decision of the state government in this
regard. Officials of the Ministry of Social Justice, Department of Personnel
and Training, and Ministry of Home Affairs also attaended the meeting.
The NCSC claimed that Bihar does not have State Commission For Schedule
Caste (SCSC) and if it wants betterment of the Dalit community, it should
first set up SCSC. It questioned the state government’s authority of
excluding some sub-castes of Dalits.

In a recent violence against Christians in Orissa, a fact finding team of

the NCSC chaired by Buta Singh visited Kandhamal on October 17/2008. The
team visited the worst affected Kandhamal district and adjoining areas to
assess the situation. NCSC members held meetings with the Chief Secretary,
Home Secretary and DGP of the state. 
The Commission apart from examining cases of attacks against Dalit
Christians evaluated the steps taken by the state government to render
protection to the Christians.

Human Rights in India: A Critical Assessment

The status of human rights in India presents a complex picture, on

the one hand there is constitutional provisions for protection of human
rights and on the other there is found systematic violation of human rights
of marginalized groups, like minorities,  women, Dalits, Tribes, unorganized
workers etc. It is often held, particularly by Indian human rightsgroups and
activists that members of these marginalized groups have suffered and
continue to suffer substantial discrimination. Although the problems of
violation of human rights do exist in India, the country is generally not
known as a human rights apprehension, unlike other countries in South
Asia. The report on Freedom in the World 2006 byFreedom House put
testimony to the fact when it gave India a political rights rating of 2, and a
civil liberties rating of 3.

Survey of Human Rights Violation in India

Custodial death

In spite of the fact that state prohibits against torture and custodial
delinquency by the police, torture and fake encounter is widespread in
police custody. G.P. Joshi, the programme coordinator of the Indian branch
of theCommonwealth Human Rights Initiative in New Delhi explains
that the main issue at hand concerning police violence is a lack of
accountability of the police.

In 2006, the Supreme Court of India in its judgment of

the Prakash Singh vs. Union of India case, gave guidelines to central
and state governments with seven directives to begin the process of police
reform. The aim of these directives was twofold, firstly to provide tenure to
and streamlining the appointment/transfer processes of policemen, and to
increase the liability and answerability of the police

Freedom of Press
 The freedom of press in Indian is under certain restrictions, that is
why the Reporters Without Borders ranked India 120  worldwide in press
th

freedom index. (press freedom index for India is 39.33 for 2007). The

Constitution of India, without mentioning the word press endows with the
Right to Freedom of Speech and Expression in Article 19(1:a). However this
right is subject to certain restrictions under sub-clause (2), means this right
can be restricted for certain reasons like to preserve the sovereignty and
integrity of India, the security of the State, friendly relations with foreign
States, public order, preserving decency, preserving morality, in relation to
contempt of court, defamation, or incitement to an offence. Some laws
like Official Secrets Act and Prevention of Terrorism Act  (POTA) have
been systematically used to check or control press freedom. POTA was
revoked in 2006, but the Official Secrets Act of 1923 still continues.

Indian print and electronic media was fully controlled by the state
which was the major constraint on its freedom.Indira Gandhi in her famous
declaration in 1975 in which she insisted that the All India Radio is "a
Government organ, it is going to remain a Government organ,” put
testimony to the fact of state control over press. With the starting of
liberalization in the 1990s, private controlled media has flourished, resulting
increase of independence and greater scrutiny of government. The Prasar
Bharti Act of November 1997 contributes significantly in reducing the control
of the press by the government.

Communal Violence

Communal riots, mostly occurs between Hindus and Muslims have been
of a grave concern. It has a long history in India, among the oldest incidents
of communal riots was Moplah Rebellion of 1921 and post partition riots in
1947-48, in 1969, 1985, 1989 except this most recent violence includes
1992-93 and Gujarat violence of 2002

The anti Sikh riots of 1984 continued for four days, in which Sikhs
were massacred by members of the secular-centristCongress Party of
India; it is known as the large scale violence against Sikhs in India,
damaging crores of rupees and making lots of Sikhs homeless. This anti Sikh
riots of 1984 is known as a black day in India. Other incidents consist of the
1992 Bombay Riots, (soon after Baburi mosque demolition by Hindu
communal groups) and the 2002 Gujarat violence, which was carried out
by the Hindu militant Sangh Parivar, where almost 1500 people were killed.
Other incidents can be laid down as the killing of some people in Mau (Uttar
Pradesh) in a recent violence, the 2002 Marad (Kerala) massacre, which was
carried out by Muslim militant group National Democratic Front of Abdul
Madani and communal riots in Tamil Nadu executed by the Islamist Tamil
Nadu Muslim Munnetra Kazagham against Hindus.  These incidents are
not only go against the secular nature of Indian state but also violates the
human rights of the victims.

The survey of Human Rights in India presents a complex scenario.

While Indian Constitution provide every citizen some fundamental rights and
has developed some institutions to deal with the gross violation of Human
Rights, but at the same time there are incidents of basic human rights
violations. It must be noted that Human rights are necessary and essential
condition for the development of democracy and personality of people for
their overall progress in political, social and economic life.