NOTES ON

HUMAN RIGHTS LAW

BINDIYA CHANDRAN. K
Lecturer in Law
Govt. Law College, Kozhikode
 CONTENTS
1. INTRODUCTION
2. CLASSIFICATION OF HUMAN RIGHTS
3. ORIGIN & SOURCES OF HUMAN RIGHTS
4. HUMAN RIGHTS IMPLEMENTATIONS
a) INTERNATIONAL LEVEL
b) IN INDIA
5. SPECIFIC HUMAN RIGHTS ISSUES
1) WOMEN
2) CHILD
3) REFUGEES
4) TRIBALS & SCST’S
5) MINORITIES
6) PRISONERS
7) WORKERS
8) STATELESS PERSONS
 1
INTRODUCTION
Human rights are those inalienable fundamental rights to which a person
is inherently entitled simply because he or she is a human being. Section 2 (d)
of the Protection of Human Rights Act 1993 defines human rights as those rights
relating to life, liberty, equality and dignity of the individual guaranteed by
the constitution or embodied in International Covenants and enforceable by
court in India.
AN ANALYSIS OF ABOVE DEFENITIONS BRINGS OUT THE NATURE OF HUMAN
RIGHTS
1) Human rights are inalienable (means which cannot be separated) from
human beings. A person gets his human rights by birth itself. These are
his NATURAL RIGHTS and not gifts, awards, alms from anybody else.
Human rights cannot be created, transferred, surrendered or destroyed.
2) Human rights are basic rights without which a human being cannot lead
a normal existence. In the absence of human rights; a human being can
never reach his fullest potential in life. His condition would lower down
to animal or best level. His talents and capabilities would be stunted.
3) Human rights are universal. These rights and freedom belong to every
human being in the world irrespective of nationality, colour, religion, cast,
sex, place of residence, etc.
4) Human rights are inter-dependent and inter related. The improvement of
one human right lead to improvement of the other human rights. The
destruction or reduction of one human rights lead to destruction or
reduction of the other human rights. Egs: - Right to reasonable wages is
related right to work and Right to form trade unions Right to dignity is
related to Right to privacy and Right against torture. Right to freedom of
movement is related to right against arbitrary arrest and detention. Right
to life is related to right to live in a healthy, pollution free environment.
5) It is the prime duty of the state to guarantee and enforce human rights.
In other words; state should not be a giver of human right. It should be a
guarantor and guardian of human rights. Even though human rights are
natural rights most of the countries in the world have incorporated these
rights under both and international laws. Thus human rights have also
acquired the status of LEGAL RIGHTS in most countries. Human rights
cannot be suspended or taken away except by due process of law.

2
 CLASSIFICATION OF HUMAN RIGHTS
According to Karel Vasak a Czeck jurist human rights can be classified in to three
generations:
First generation human rights (Blue rights)
These are strongly individual rights Civil and political rights like freedom of
speech and expression, freedom of movement, freedom of religion right to free
and fair trial, right to vote, right to self determination, etc. These rights gave
importance to liberty of individual.
Second generation human rights (Red Rights)
These rights were recognised after World war 2nd and gave importance to
equality of individuals. Economic, social and cultural rights like: Right of
employment, Right of housing, Right to health care, Right to free education,
Right to social security, etc. These rights aim at equal treatment of citizens
equal conditions
Third generation human rights (Green Rights)
These rights are collective in nature. Groups rights like right to natural
resources, right to healthy environment, right to economic and social
development, right to communication, rights of tribal, rights of minorities,
right to participate in cultural heritage, etc. Right to intergenerational
equality is also a collective right. Intergenerational equality means equal
justice for all generations including future generations. For example the
present generation should not use natural resources and energy resources
indiscriminately. They should also save these resources for future generations.
Another example if the government provides several benefits to the present
generation by taking huge loans and liabilities it will result in great financial
burden and risk on future generations. This will lead to intergenerational
inequalities Third generation rights give importance of fraternity of individuals.
The term intergenerational equality was coined by James Tobin.
First and second generation human rights have been incorporated in the
UDHR (Universal Declaration of Human Rights 1948) in Articles 3 – 21 and
Article 22 – 27 respectively. Second generation human rights are also
incorporated in I C E S C R (International Covenants on Economic, Social and
Cultural Rights, 1966).
Third generation human rights have not yet been officially recognised
properly. But, these rights are implied in various international covenants
especially those related to environmental protection Eg: - Stockholm
Declaration, Rio Declaration. Countries like Finland, Hungary, New Zealand and
Israel have incorporated third generation human rights in their constitutions to
certain extend. International Organisations like the Organisation for security
and co-operation in Europe and the Directorate general for Environment of the
European Commission have also taken measures in this regard.
Implementation and enforcement of second and third generation rights
is more difficult than that of first generation rights. This is due to the reason
that implementation of second and third generation rights depends on
availability of resources with the government. A person cannot claim rights of
housing or right of free education if the government does not have enough
funds or resources. There are no effective mechanisms for implementing third
generation rights or to punish the violation of these rights.
Maurice Cranston was opinion that second and third generation human
rights are not really human rights at all. Because of every right has a
corresponding duty. But in second and third generation rights the government
cannot be compelled to do its duty if it does not have enough resources. Dr.
Charles Keblar* held that second and third generation rights are not human
rights but only political ideals and goals.
Human rights can also be classified in to POSITIVE and NEGTIVE human
rights. Positive human right is a right to get particular treatment from the
government Eg: - right to food, education, housing, employment, health care
road, and electricity facilities right to national security and social security etc.
second and third generation human rights are positive in nature. Negative
human right is a right not to get a particular treatment or not to get interfered
with Egs: - freedom of speech and expression, freedom of movement freedom
of religion and worship, freedom from slavery, right to fair trial, right against
arbitrary arrest, right to privacy, right to marry, right against torture and
crimes. First generation human rights are negative in character.
Negative rights are also known as classic human rights. Positive rights are
also known as social rights.
3
ORIGIN & SOURCES OF HUMAN RIGHTS LAW
 The evolution of human rights can be traced back to the evolution of
mankind itself as a part of Natural law and Divine law. However, human rights
jurisprudence was officially recognised in the 20th century particularly after the
mass killings of Jews, gypsies homosexual and disabled persons by the Nazis
during World war 2nd. These genocides (manslaughter) were treated as crimes
against humanity which shocked the world. The perpetrators of these crimes
were punished in the Nuremburg and Tokyo trials. It also led to the formation
of the UNO (United Nations Organisation).
Human rights jurisprudence is based on the golden rule: “Do not do anything
on others which you do not like to be done on you”. The following are the
known sources of human rights law
1) Hindu Vedas, Bible, Quran, Hammurabi’s Code, Sayings of Confucius-
These are the oldest sources of human rights law which lay down the rights,
duties and responsibility of citizen and the state.
2) Inca and Aztec writings: - which laid down codes of conduct in ancient
America
3) Natural and divine law of the Greeks and Romans : - Natural law also called
moral law universal justice, fair play action or fundamental justice it was
propagated by Herodotus, Socrates, Plato, Aristotle, Stoic and other
philosophers. Divine law which was propagated by the church from I st
century to 15th century interpreted natural law through priest Divine law had
a theological basis.
4) Cyrus cylinder of Mesopotamian civilisation : - the writings on this cylinder
says about the greatness of king Cyrus who used to grant religious freedom
to his subjects, abolished slavery and granted freedom to minorities and
deported persons.
5) Magna Carta of Great Britain (1215): - Passed by King John of England is
also known as the great charter of liberties.
6) English Bill of Rights (1689)
7) French declaration on the rights of Man and citizen (1789)
8) US constitution and Bill of Rights
9) Universal Declaration of Human rights UDHR (1948)
10) International Covenant on Civil and Political rights 1966
11) International Covenant on Economic, Social and Cultural Rights 1966
ICCPR.
12) Optional Protocol to ICCPR
13) Second Optional Protocol to ICCPR for abolish of Death penalty.
14) There are also numerous conventions and treaties related human rights
which are part of International Law: -
➢ Convention on Prevention and Punishment of Genocide, 1948
➢ Convention on Elimination of All forms of Discrimination against
women 1981 (CEDAW
➢ Convention on Elimination of all forms of Racial Discrimination,
1966
➢ Convention on Suppression and Punishment of Apartheid, 1973
➢ Convention on Status of refugees,1951
➢ Convention on Suppression of Traffic in Persons and Exploitation,
1949
➢ Convention against Torture and other cruel, inhuman or degrading
treatment or punishment, 1984
➢ Convention relating to Status of Stateless Persons 1954
➢ Convention against taking of Hostages 1979
➢ Slavery Convention, 1926
➢ Geneva convention on treatment of prisoners
➢ Geneva Protocol on Prevention of war 1949
➢ Geneva Protocol on Prevention of Bio warfare, 1929
There are also domestic laws passed by many countries which are being
implemented within their jurisdictions European, American and African states
have created their own charter of human rights Muslim states have created
Cairo Declaration on Human Rights in Islam (1990). In America, President
Abraham Lincoln abolished slavery through the Emancipation Proclamation
1863. In India laws like Protection of Human Rights Act 1993, Protection of Child
rights Act 2005, Prevention of Sati Act 1987, Suppression of Immoral Traffic Act
1956, Bonded labour Abolition Act 1976, Domestic violence Act 2005, Minimum
wages Act, SCST Prevention of Atrocities Act 1989, all examples of recognition
and respect for human rights and are strong domestic sources of human rights
law within the country.

4
 HUMAN RIGHTS IMPLEMENTATION IN
INTERNATIONALLEVEL
The establishment of the United Nations Organisation and the adoption
of human rights by the UN charter was the landmark in the history of human
rights law. The adoption of the UDHR (Universal Declaration of Human Rights,
1948) gave official recognition to human rights. UDHR also known as the
International Bill of Human Rights contains 30 articles and was ratified by most
member states. It lays down a set of minimum basic rights which should be
followed as a common standard by all member states, whether they have
ratified it or not. It lays down the norms of International behaviours to be
followed by member states with regard to right of individual. The following are
the rights laid down in the UDHR.
1) Right to equality and dignity
2) Right against discrimination on the basis of race, colour, religion, sex,
language, etc.
3) Right to life liberty and security
4) Right against slavery
5) Right against torture, cruel inhuman and degrading treatment
6) Right to be recognised as a person before law
7) Equality before law and equal protection of law
8) Right to effective legal remedies
9) Right against arbitrary arrest, detention or exile
10) Right to fair hearing
11) Right to be presumed innocent until proved guilty and right to public trial
and proper right against ex-post facto laws (criminal laws with defence
retrospective effect)
12) Right to privacy
13) Freedom of movement and residence Right leave and return to his country
14) Right to asylum
15) Right to nationality
16) Right to marry and form family
17) Right to property and right against arbitrary deprival of property
18) Freedom of thought, conscience and religion
19) Freedom of speech and expression
20) Right to peaceful assembly and association
21) Right to vote and take part in the government of his country
22) Right to social security
23) Right to employment equal pay for equal work, reasonable pay and
reasonable conditions of work, protection against unemployment, right to
form and joint trade unions.
24) Right to rest, leisure and holidays
25) Right to decent standard of living
26) Right to education
27) Right participate in cultural activities
28) Right to have a social and international order in which all the above rights
can be fully realised
29) Right against unreasonable restriction on the above rights and freedom
30) No state or person shall carry on any activity aimed at destroying the
above rights and freedom
In 1966, UNO adopted the following covenant in addition to
the UDHR:
1) ICCPR (International Covenants on Civil and Political Rights)
2) ICESCR (International Covenants on Economic, Social and Cultural rights)
These covenants are nothing but a further detailed explanation and
affirmation of the human rights laid down in UDHR.
ICCPR contains 53 Articles and 167 state parties the following are some of
the main provisions of the ICCPR:
1) Article 4 of the ICCPR says that states which are parties to this covenant
shall not violate the following rights event during emergency.
➢ Right to life
➢ Right against torture and cruel, inhuman, degrading treatment
➢ Right against slavery
➢ Right against imprisonment on ground of inability to fulfil contractual
liability
➢ Right against ex-post facto laws (Retrospective criminal law imposing
higher punishment)
➢ Right to be recognised as a person before the law
 ➢ Right to freedom of thought, conscience and religion
2) Article 10 Accused persons and juvenile offenders shall be separated from
convicted persons and given separate treatment.
ICESCR contains 31 Articles and 160 state parties the following are some of
the main provisions
1) Article 4 of the ICESCR says that states which are parties to the covenant
shall not impose unlawful, unreasonable and unreasonable and unnecessary
restrictions and limitations on the economic, social and cultural rights of its
subjects.
2) Article 5 says that restrictions cannot be laid down existing human rights in
any country on the ground that such rights are not mentioned in this
covenant or that on the ground that such rights are greater than that
guaranteed under this covenant.
Both ICCPR and ICESCR contain provisions for implementation and
enforcement of these rights.

UNO

HUMAN RGHTS IMPLEMENTATION

Human Rights Human Rights

Committee Committee

Articles 28-45 ICCPR Articles 28-45 ICCPR

State Reporting Inter State Conciliation

System Communication Measures

Let us examine these in detail

1) Human Rights Committee: - is established for h hearing complaints and
deciding problem and disputes related to civil and political human rights
 a) State Reporting system:
State parties to the ICCPR shall submit reports on the human rights situation
and implementation in their respective states. Such report is submitted to the
Human Rights Committee through the Secretary General of the UN. The
committee shall study such report and forward them to the ECOSOC (Economic
and Social Council) along with comments and suggestions of other state parties
are also forwarded to the ECOSOC. The ECOSOC has several specialised
agencies, sub-committee, expert committee and working groups to deal with
various types of human rights issues Egs: - Commission and working groups on
status of women, Sub commission for protection of minorities, Committee on
Crime Prevention and control Functional Commission, Social Committee of
NGO’S, etc.
b) Inter State Communication System:
If a state party to the ICCPR feels that another state party is giving effect
to the provisions of the ICCPR, it can demand explanation from such State party
written communication should be sent to that State. If no explanation is given
within three months or satisfactory explanation is not given then the matter
shall be referred to the Human Rights Committee. The Committee shall hear
both State parties and submit a report to both State parties within 12 months.
The Committee shall hold closed meeting and try to reach at a friendly solution
in the matter.
It is to be noted that the Committee shall deal with the matter only if the
complaining State party has exhausted all other domestic remedies.
c) Conciliation Procedure :
If the inter State communication system fails then the Human Rights
Committee shall form an Ad-hoc Conciliation Commission with the consent
of both State parties. The Conciliation Commission shall consist of 5 persons
acceptable to both State parties. Such persons shall be nationals of other
States. The Conciliation Commission shall submit its report within 12 months,
after hearing both State parties. The State parties shall within 3 months of
the receipt of the report inform the human Rights Committee as to whether
they accept the terms in the report or not.
2) State Reporting System: - It is followed in cases of implementation of
economic, social and cultural State parties to the ICESCR shall submit report
to the Secretary General of the UNO about the measures adopted by them
for implementation of human rights in the States. Copies of the reports shall
be forwarded to the ECOSOC and other specialised agencies shall study and
monitor these reports and evaluate the progress made by the States and
 make necessary arrangement and technical assistance for implementation of
human rights in these States.
ECOSOC may transmit these reports to the Human Rights Commission
if necessary. ECOSOC also submit reports on such matters to the General
Assembly from time to time. If higher level of international action and
assistance is required then the ECOSOC will bring this matter to the attention
of all other organs of the UNO.
All the 6 organs of the UNO, namely;
1) General Assembly
2) Secretariat
3) Security Council
4) Economic and Social Council
5) Trusteeship Council
6) International Court of Justice
Play their respective parts for effective implementation of human rights.
The General Assembly has main committees, several sub-committees,
subsidiary and specialised organs like UNICEF, UNESCO, FAO, etc. and
international convention committees like CEDWA, CERD, CAT etc. United
Nations Human Rights Council and office of High Commissioner of Human Rights
(OHCHR) are also subsidiary bodies of the General Assembly.
The Secretariat has several centres and departments like Centre for Social
Development and humanitarian affairs, Centre for Advancement of Women,
Department of Political and Social Security affairs Centre against Apartheid,
Division for Palestinian Rights. It also has a special office in Namibia.
Security Council Take crucial decisions like whether international action or
intervention is necessary. The general rule under the UN charter is that no
individual State can interfere in another State sovereignty even in case of
human rights violation. But the UNO can interfere in the affairs of a State
(Including sending of troops) if the violation of human rights in that State is very
serious and a threat to international peace and security. Such decisions are
taken by the Security Council.
Trusteeship Council has the responsibility of administering trust territories.
Trust territories are generally weak and dependent States and former colonies
like Majuro islands, Italian Somaliland, Pacific islands and certain African States.
From 1994 onwards the trusteeship council become temporarily inactive after
the independence of last trust territory Palau. Most of the independent trust
territories have themselves become of the UNO.
International Court of Justice does not have compulsory jurisdiction but can
try and decide cases between State parties on international issues, including
human rights. However, it has been criticized that the ICJ is not much active in
its judgements related to human rights for instance, in the La Grand case (2001
ICJ) 77; between Germany and USA, the court refused to decide the issue
whether the right to consular notification is a human right. In another case in
which the ICJ exercised advisory jurisdiction Re legality of threat or Nuclear
weapons (1996 ICJ) 240; the ICJ did not properly determine the question
whether the use of nuclear weapons would violate right to life under Article 6
of ICCPR,
International Criminal Court (ICC) Established in 2012 under Rome statute is
permanent tribunal for deciding crimes against humanity, war crimes genocides
and crimes of aggression. Currently, 122 States have submitted to its
jurisdiction USA, India, China, and Sudan have not submitted to its jurisdiction.
Some States have not signed the convention but have not ratified it.
ICC can exercise jurisdiction only if the domestic court do not take up the
case. It has power to issue summons and arrest warrants and punish the
offenders. ICC can exercise jurisdiction only in three situations:
1) If the accused is citizen of a state party.
2) If the crime took place in the territory of the state party.
3) If crime is referred to it by the UN Security Council.

REGIONAL IMPLEMENTATION OF HUMAN RIGHTS

European American African ASEAN

Convention Convention Charter on Human
on Human on Human Human Rights
Rights, Rights, Rights Forum
1950 1978 (Banjul)
1986

All these conventions contain provisions which are more or less replicas
of the UDHR, ICCPR and ICESCR, along with certain additional provisions. For
example establishment and organisation of European Court of Human Rights,
Inter – American Court of Human Rights, African Commission on Human Rights.
Article 16 of the European Convention specifically says that restrictions can be
imposed on aliens in matter of freedom of expression, freedom of assembly and
association and right against discrimination. Article 58 says that a European
State party cannot withdraw from this convention before 5 years. Article 27 of
the American Convention says that the following human rights cannot be
suspended even during emergency:
❖ Right to life
❖ Right to human treatment
❖ Right against slavery
❖ Right against ex-post facto law
❖ Freedom of religion
❖ Right of family and child
❖ Right of name and nationality
❖ Right to participate in Government.
The Preamble of the African Convention specifically aims at eliminating
Zionism Colonialism, neo-colonialism, apartheid and to break-up aggressive
foreign military bases.
ASEAN Human Rights Institution Forum is not as strong and binding like the
European, African and American conventions. However the ASEAN
Intergovernmental Commission on Human Rights (AICHR) was established in
2009 it is to be noted that the AICHR cannot receive or investigate complaint of
human rights initially. It is focussing more on human rights awareness and
promotion.

GLOBAL IMPLEMENTATION OF HUMAN RIGHTS

There are numerous treaties, convention and declaration between nations
of the world for this purpose.
 Convention against Torture (CAT).
 Convention on Elimination of All forms of Racial Discrimination (CERD).
 Convention on Elimination of all forms of Discrimination against Women
(CEDAW).
 Convention on Rights of Child (CRC).
 Convention on Prevention and Punishment of the Crime of Genocide
 Convention on rights of Disabled Persons
  Convention related to Status of Refugees.
There are also conventions on migrant workers, convention against
enforced disappearance, convention for Indigenous and Tribal people, etc.
• Declaration on Rights of Child 1923.
• Declaration on Rights of Disabled Person, 1975.
• Universal Declaration on Cultural Diversity.
• UN Declaration on sexual orientation and gender identity, 2008.
• Vienna Declaration on, 1993.
• Declaration of Human Duties and responsibilities 1998. Etc.

INTERNATIONAL ORGANISATION FOR HUMAN RIGHTS

There are both governmental and non-governmental organisations around the
world for this purpose. Almost all countries have governmental organisation
like Human Rights Commissions within their jurisdiction. The following are
some of the important international non-governmental organisations (NGO’s):
 Amnesty International
 Red Cross
 Amazon Watch
 Centre for Human Rights and Humanitarians Law.
 Centre for Housing Rights and Evictions (COHRE)
 Committee to protect Journalists
 Disabled Peoples International
 Enough Project
 Society for Threatened Peoples
 Helsinki Watch
 Hindu American Foundation
 Human Rights Observers
 Human Rights without Frontiers
 Institute for War and Peace Reporting
 International centre for Human Rights Research
 International Partnership for Human Rights (IPHR)
 International Rehabilitation Council for Torture victims
 Islamic Human Rights Commission
 Medical foundation for care of Torture victims
 Peace Bridges international
 Protection international
 Point of Peace Foundation
  Physicians for Human Rights
 World organisation against Torture
 World Future Council
 Womankind International, etc.
Amnesty International is the NGO having more than three million members
and supporters around the world. Object of this organisation is to conduct
research on human rights take action against violation, prevent human rights
violation and demand justice for victims of human rights violation it was
founded in London in 1961 by Peter Benenson, a lawyer. The Key-areas of its
focus are:
1) Women, children minorities, and indigenous rights.
2) Torture
3) Death penalty
4) Refugees
5) Prisoners of Consuenie* (mean persons imprisoned only because of their race
religion or political views)
6) Protection of Human dignity
7) Amnesty international received Nobel Prize for in 1977 and the United
Nations Prize in the field of Human Rights in 1978.

IMPORTANT POINT & CASE LAWS

❖First Optional Protocol to ICCPR 1976
States who signed and ratified this protocol agree to accept the
jurisdiction of Human Rights Committee. An individual who is a subject of such
a State can file written communication to the Human Rights Committee in case
of violation of his human rights in that State. However he should have
exhausted all other domestic remedies before approaching the Human Rights
Committee. The Committee shall inquire into the matter and demand
explanation from the concerned State. After hearing both sides, the Committee
shall inform its view on the matter to both parties and also report it to the
General assembly. The report submitted to the General Assembly will help to
build strong public opinion against the concerned State.
Currently 114 countries have signed this Protocol. The question as to whether
the decision of the Human Rights Committee can be treated as judicial decisions
is still under dispute.
❖ Second Optional Protocol to ICCPR, 1991
 States who have signed and ratified this protocol agree to abolish
death-penalty in their jurisdictions currently 75 States have signed it Argentina,
Australia, Austria, Belgium Brazil, Canada, Colombia, Denmark, Finland France,
Greece, Germany, Italy, Mexico, Nepal, Netherlands, Newzeland, Norway,
Philippines, South Africa, Spain, Switzerland, Turkey, U.K are some of the
prominent Parties. However many countries have ratified this protocol with
certain reservations and exceptions like military crimes, war-crimes and very
serious crimes. Egs: - Greece, Cypress Brazil, Azerbaijan, Spain, Finland, Chile.
❖ CAIRO Declaration of Human Rights in Islam, 1990
This declaration was signed and ratified by 57 States who are members
of OIC (Organisation of Islamic Conference). The provisions of this declaration
give an overview of Islamic attitude towards human rights.
This declaration is widely criticized on the ground that it gives prominence only
to Quranic and Shari at Laws and overrides the provisions of the UDHR and
other important International declarations and conventions. The main points of
criticism are:
1) Unequal treatment to women
2) Discrimination toward non-muslims
3) Restriction on freedom of religion (Art 10)
4) Punishment for crimes according to Shari at. Eg: - Capital Punishment,
whipping stoning, amputations, etc.
5) All other types of freedom and rights are also subject to Shari at Law
Article 22 of the OIC Convention on Combating International Terrorism has also
been widely criticised. According to this Article, armed struggle against foreign
occupation, colonialism hegemony, and aggression aimed at liberation and self
determination cannot be treated as terrorism. The definition of terrorism in
Article 1 was also criticised as being loosely and vaguely worded.

IMPORANT CASE LAWS

▪ Waldman. Vs Canada (1999)
Govt of Ontario State in Canada provided public funding in favour of Roman
Catholic school only. The complainant wanted to give Jewish education to his
children. As Jewish school were not entitled to public funding, he faced financial
hardship in providing education to his children. He contended that the
Education Act of Ontario violated Article 2, 18, 26 and 27 of the ICCPR.
Human rights committee held that Canada has violated these Articles of a State
wants to provide public funding to religious school; it must do so without
making any discrimination. It at all, the State makes discrimination, there
should be a rational and reasonable cause behind such discrimination.
 ▪ Ignatane vs. Latvia (2001)
Mrs. Ignatane, wanted to contest for the Latvian local election in 1997. Even
though she was certified by 5 experts as being proficient in Latvian language in
1993 she was failed by a single inspector in a Latvian language exam held in
1997. As a result her election candidature was cancelled. Her appeals were
rejected by Latvian courts. Therefore she filed a complaint before the Human
Rights Commission.
The Human Rights Commission held that Latvia has violated Article 25 (right to
participate in public life) of ICCPR.
▪ Diergaardt vs. Namibia (2000)
Representatives of the Baster Community of Namibia filed a complaint
before the HRC, as the State of Namibia had instructed Civil servants not to
Afrikaans language.
The HRC held that Namibia has violated Article 26 (Discrimination on the
ground of language) of ICCPR.
▪ Ambrosini vs. Uruguay
In this case of unlawful detention and torture by state authorities, the HRC
held that Uruguay has violated Article 7 & 9 of the ICCPR (Right against torture
and Right against arbitrary arrest).
▪ Drake vs. New Zealand (1997)
Drake, who was a war prisoner in Japan during world war 2nd, made a
complaint against New Zealand government on the ground of the
discrimination shown by New zealand between war-prisoners in Japan and
Germany. As per the treaty of San Francesco; New Zealand gave lots of benefits
and reparations to war prisoners in Germany only.
The HRC dismissed Drake’s complaint on two grounds:
1) The causes of action in this complaint occurred before New Zealand became
a party to the first Optional Protocol.
2) The type of discrimination alleged by Drake is not listed in the ICCPR. Hence
the HRC has no jurisdiction to deal within this complaint.
▪ Toonen vs. Australia (1992)
Australia had passed a law criminalising homosexuality. However the law
had not been brought in to force even after 10 years. The complainant had
never been prosecuted under this law, but had suffered great tension and
emotional anguish due to the existence of this Law.
HRC held that he can be considered as a victim of human rights violation.
▪ Lubanga trial (2012)
 Lubanga a Congo leader was accused of massive human rights violation.
Large-scale killing of ethnic groups, torture, rapes and forcefully recruiting child
soldiers. The International Criminal Court (ICC) sentenced him to 14 years
imprisonment.
Several other cases on human rights violation are currently pending
before the ICC.
▪ Yilmaz-Dogan vs. Netherland, C.E.R.D. (1988)
Yilmaz-Dogan was a Turkish National, working in a Netherland company, she
was pregnant. She asked the employer to give her maternity benefit leave.
Instead of giving maternity benefit to the petitioner, the employer dismissed
her from services. On questioning the company replied that such benefit would
be given only to Netherland pregnant women.
The petitioner submitted petition before the committee on Elimination of
Racial Discrimination contending that the employer’s act was violative of
Articles of NCERD.
Decision: The Committee on Elimination of Racial Discrimination gave its
decision in favour of the petitioner, and instructed the Netherland Govt. to
amend the municipal laws according to the provisions of NCERD.
▪ Brocks vs. Netherland HRC 196 (1987)
Brocks was a nurse. She was dismissed from services due to her illness she
was not paid unemployment benefit according to the Dutch Social security law,
a woman employment would get unemployment benefit, if she could prove
that she was the “only bread winner” of the family.
This condition would not apply to males. She applied to Human Rights
Commission pointing out the discriminations shown between males in Dutch
Security laws, and such laws were against Article 26 of ICCPR.
Decision: The Human rights Committee upheld her contention, and instructed
the Netherlands Govt. to remove the provisions relating to the discrimination
between males and females.
▪ Lovelace vs. Canada HRC 28 (1981)
Lovelace was an Indian woman she married a Canadian and left to Canada.
She relinquished Indian citizenship and took the Canadian citizenship, after
some years disputes arose between her and her husband.
They took divorce. According to the Indian law, once she has relinquished, she
was residing in Tobougue. She was not allowed to return to India.
The Canadian Govt. asked her to leave the country as she was a divorce; she
submitted an application to the HRC stating that the Canada Govt.’s action was
violative of Article 27 of the ICCPR.
Decision: The Human rights Commission of Canada gave decision in favour to
Lovelace, and asked the Canada Govt. to amend its laws.
▪ Camargo vs. Columbia {HRC 112 (1982)}
A report was received by the Columbian police in connection with a
kidnapping and that the kidnappers hid in a house. The police raided the house.
No one was found in the house, but they hid in the same house waiting for
kidnappers. Seven civilian people in no way connected with the kidnapping
were coming towards the house.
The police fired at them without giving any warning. Mrs Maria Fanny Surez
de Guerero, the wife of the one of the deceased in the said incident, submitted
an application to the Human Rights Commission.
The Human Rights Commission of Columbia enquired into the matter. The
Govt took the defence of a Decree passed by the Parliament for protecting the
police.
Decision: The Human Rights Commission condemned the attitude of Columbian
Govt., and ordered it to pay compensation to the applicant.
Estrella vs. Uruguay (HRC 93 1983)
Estrella was an Argentinean national. He was a professional pianist living in
Uruguay all of a sudden; the Govt. of Uruguay informed that she should leave
the country as she was regarded as the opponent of the Uruguay Govt.
While she was preparing to go to her country. The Uruguayan police arrested
her without showing any cause. In detention she was tortured by means of the
electric shocks, beating with rubber truncheons, punches, kicks, hanging etc.
After release from the detention, she filed application to the Human Rights
Commission of Uruguay.
Decision: the Human Rights Commission condemned the attitude of Uruguayan
Govt. and ordered it to pay compensation to Estrella.

5
HUMAN RIGHTS IMPLEMENTATION IN INDIA
 Being a democratic country, India has always respected and upheld the
concept of human rights. India is a party to the UDHR and ICCPR and ICESCR.
However, India has made some reservations on the right of self determination
and right of equal opportunity under the ICESCR. India is not a party to the
optional protocol to ICCPR and other important documents like Charter of
International Criminal Court, convention concerning elimination of child labour,
Convention for right to organise and collective bargaining, convention for
occupational safety and healthy working environment, Convention on
protection and rights of Migrant workers, Convention against discrimination in
Education, Convention on status of refugees and Stateless persons, etc.
However, India is a party to international document like CEDAW, CERD,
Convention against Transnational organised crime, Slaver Convention, on
Suppression of Trafficking in persons and prostitution, CAT (convention against
torture), Convention on Rights of Child, Convention against forced Labour,
International Convention against taking of Hostages, International Convention
against Terrorism, etc
Most of the provisions of the UDHR, ICCPR and ICESCR have been
incorporated in to our Constitution, particularly in the preamble, Part III
(Fundamental rights) and Part IV (Directive Principles). Our Courts have further
widened the scope of human rights by a liberal and purposive interpretation of
the constitutional provisions.
Article 21 of the Constitution says Right to Life and liberty. This has been
interpreted by the Supreme Court so as to include:
❖ Right to privacy – Kharak Singh. v. State of UP (1963) in this case domicillary
visits by the police were held to be violation of Article 21 of the Constitution
❖ Even a prostitute has right to privacy – State of Maharashtra. v. Madhukar
Mardhikar (1991)
❖ Right against arbitrary arrest – D.K Basu v. State of West Bengal and
compensation for unlawful arrest – Rudal shah v. State of Bihar (1983)
❖ Right against mistreatment in Police Station – Sheela Barse v. Union of India
(1987)
❖ Right to humane jail conditions
❖ Rights free, fair and speedy trial – Hussainara Khatoon v. Home Secretary,
Bihar (1976), M.H. Hoskot v. State of Maharashtra (1978)
❖ Right to Travel abroad – Satwant singh v. Passport officer (1967)
❖ Right against sexual harassment in work places – Visakha v. State of
Rajasthan (1997)
❖ Right to medical assistance in emergency cases – Paramanand khatara
❖ Right to healthy environment and preserve cultural heritage – M.C. Mehta v.
Union of India
❖ A person should not be imprisoned due to genuine inability to meet his
contractual liabilities.
❖ Right to minimum wages - Asiad case
❖ Right against bounded labour – Bandhua Mukthi Morcha v. Union of India
1982
❖ Right t housing – Olga Tellis v. Union of India
❖ Non-voluntarily narco-analysi, brain mapping and lie-detector tests violative
of Article 20 (3) right against self-incrimination Article 21.
❖ Right to clean and pure water – Ganga Pollution case 1988
❖ Right to sleep – Ramleela maidan incident case 2012
❖ Recently a NGO association called Aam Aadmi Lok Manch has filed a petition
in the Bombay High Court against BCCI alleging that auctioning of IPL players
is human rights violation.
❖ Right to education has incorporated in the Constitution (86th amendment) in
2002
Most of the cases involving violation of fundamental rights / human rights
were filed in the form of Public Interest Litigations (PIL) by invoking writ
jurisdiction of High Court and Supreme Court under Articles 226 and 32 of the
Constitution. Courts have even relaxed the rule of Locus-standi for entertaining
more and more PILS by persons who are not directly affected by the human
rights violation. However, in ADM Jabalpur v. Shivkant Shukla (1976): the
Supreme Court held that no person has Locus-standi to file a writ to enforce
fundamental rights under Article 226 during declaration of Emergency. After
this judgement, the Constitution passed 44th amendment according to which
Article 20 and 21 cannot be suspended even during the emergency.
According to Human Rights Watch Committee (HRW) the following are the
major human rights issues in India:
1) Lack of accountability of security forces
2) Police Tortures
3) Discrimination of dalits and indigenous people
A UN expert report in 2011 says that victimisation of human rights activists in
India is also a major human rights issue.
Besides there are various other issues like Slum-dwellers, increase in crime rate
against women, illiteracy, child labour Khap-Panchayats in North India who kill
eloping lovers and couples who marry against their parent wishers, etc.
INPORTANT HUMAN RIGHTS ACTIVISTS AND ASSOCIATION IN INDIA
➢ AIHRA (All India Human Rights Association)
➢ Amnesty International India
➢ UNICEF India
➢ Human Rights Watch India
➢ Aam Aadmi Lok Manch
➢ Peoples Union for Civil Liberties
➢ Eminent activist like Medha Patkar, Prof Upendra Baxi, M.C. Mehta
IMPORTANT LAW RELATED TO HUMAN RIGHTS
a) Prevention of Sati Act, 1987
b) Child Marriage Restraint ACT, 1927
c) Domestic Violence Act, 2005
d) Minimum Wages Act
e) Bonded Labour Abolition Act 1976
f) Suppression of Immoral Traffic Act, 1956
g) Protection of Child Rights ACT 2005
h) Maternity Benefit Act
i) SCST (Prevention of Atrocities) Act, 1989
The land mark law in the field of human rights in India is the Protection of
Human Rights Act, 1993

THE PROTECTION OF HUMAN RIGHTS ACT 1993

The world Conference on Human Rights in 1993 urged the Governments
to strengthen National Institutions and organs of society to promote and
safeguard Human Rights.
The Parliament of India enacted the Protection of Human Rights Act,
1993 with following objects.
1) To set up National Human Rights Commission.
2) To set up State Human Rights Commission in states.
3) To define functions and powers of the National Commission and State
Commissions.
 4) To prescribe procedures to be followed by the commissions while
inquiring into the complaints of violations of Human Rights.
5) To set up Human rights Courts.
The Human Rights Act extends to the whole of India .
Definition of Human Rights
Section 2 (d) of the Protection of Human Rights Act 1993 defines human
rights as those rights relating to life, liberty, equality and dignity of the
individual guaranteed by the constitution or embodied in International
Covenants and enforceable by courts in India.
The expression International Covenants means the International
Covenants on Civil and Political Rights and the International Covenants on
Economic, Social and Cultural Rights adopted by the General Assembly of the
United Nations on 16th December 1966.
NATIONAL HUMAN RIGHTS COMMISSION (NHRC)
Section 3 of the Act empowers the Central Government to constitute a
body to be known as the National Human Rights Commission. The National
Human Rights Commission shall consist of –
a) A Chairperson who has been a Chief Justice of the Supreme Court.
b) One Member who is or has been, a judge of the Supreme Court.
c) One Member who is or has been, the Chief Justice of High Court.
d) Two Members to be appointed from amongst persons having
knowledge of, or practical experience in, matters related to human
Rights.
The Chairpersons of the National Commission for Minorities, National
Commission for the SCST and National Commission for Women shall be deemed
to be Members of the Human Rights Commission.
Thus National Human Rights Commission shall have eight members.
The Chairperson and members shall hold office for a period of five years or
until they attain the age of seventy years, whichever is earlier. They shall be
eligible for re-appointment for another term.
The Chairperson and other members shall be appointed by the president.
The appointment shall be made after obtaining recommendations of a
Committee consisting of the Prime Minister, Speaker of the House of the
People. Minister in Charge of Home Affairs, Leader of Opposition in the house
of People, Leader of Opposition in the Council of States and Deputy Chairman
of the Council of States. No sitting judge of the Supreme Court or sitting Chief
Justice of the High Court shall be appointed except after consultation of Chief
justice of India.
The Commission shall have the Secretary General who shall be the Chief
Executive officer of the Commission.
The Headquarters of the Commission shall be at Delhi. The Commission
may, with the previous approval of the Central Government, establish officer at
other places in India.
The Commission shall perform the following functions:
1) Inquire in to complain of violation of human rights on negligence in the
prevention of such violation by public servant. The inquiry may be conducted
on a petition presented to it by a victim or any other person on his behalf or
suo moto.
2) Intervene in any proceeding involving in any allegation of violation of human
rights pending before a court with the approval of such court.
3) Visit any jail or any other institution, under the control of the state
Government, where persons are detained or lodged for purpose of
treatment, reformation or protection to study the living conditions of the
inmates and make recommendations.
4) To study treaties and other international instruments on human rights and
make recommendation for their effective implementation.
5) Undertake and promote research in the field of human rights.
6) Spread human rights literacy among various sections of society and promote
awareness of the safeguard available for the protection of these rights
through publications, media, seminar and other available means.
7) Encourage the efforts of non-governmental organisations and institutions
working in the field of human rights.
The commission shall, while inquiring into complaints of violation, have
all the powers of a civil court trying a suit.
The commission may take any of the following steps upon completion of
an inquiry.
1) If the inquiry discloses the commission of violation of human rights or
negligence in the prevention of violation of human rights by a public servant,
it may recommend the concerned Government or authority the initiation of
proceeding of prosecution or such action as the commission may deem fit
against the concerned person or persons.
2) Approach the Supreme Court or the High Court concerned for such directions
orders or writs as that Court may deem necessary.
3) Recommend the concerned Government or authority for the grant of such
immediate interim relief to the victim or the members of his family as the
commission may consider necessary.
The Commission shall submit an annual report to the Central Government
and the concerned State Government. The Central Government and the State
Government shall cause the annual report of the commission laid before each
House of Parliament or the State Legislature respectively along with a
memorandum of action taken or proposed to be taken on the
recommendations of the Commission and the reasons for non-acceptance of
recommendation, if any.
STAE HUMAN RIGHTS COMMISION
Section 21 of the Act empowers each State Government to constitute
State Human Rights Commission.
The State Human Rights commission shall consist of –
a) A Chairperson who has been a Chief Justice of a High Court
b) One member who is or has been a judge of a High Court
c) One member who is or has been a district judge in that state
d) Two members to be appointed from amongst a person having special
knowledge of or practical experience in matters relating to Human Rights
The Chairperson and members of the State Commission shall be
appointed by the Governor. The appointment shall be made after obtaining the
recommendation of Committee consisting of the Chief Minister, Speaker of the
Legislative Assembly, Home Minister and Leader of Opposition. A sitting judge
of the High Court or a sitting District Judge shall not be appointed except after
consultation with the Chief Justice of the High Court.
A State Commission may inquire in to violation of human rights only in
respect of matters related to any of the entries enumerated in List II and List III
in the seventh schedule to the Constitution.
If any matter has already inquired into by the National Commission or any
other Commission dully constituted under any law for the time being in force,
the State Commission shall not inquire into the said matter.
In the matter of inquiry into the complaints of violation of Human Rights
and recommendation, the State Commission shall have all the powers of the
National Commission.

6
SPECIFIC HUMAN RIGHTS ISSUES
1) WOMEN
The UDHR and other important international documents declare
equality of all human beings and non-discrimination on basis of religion,
language, sex and other factor. However, the greatest problem faced by
women, even in advanced countries is basic that of GENDER DISCRIMINATION
even though gender-equality has been recognised as human rights. Women are
being discriminated in the field of education politics, employment, wages, etc.
Other human rights problems faced by women are:
• Sexual and Domestic Violence
• Lack of Motherhood Care Including Pregnancy Death and child Birth,
Death
• Female Infanticide
• Child marriages and Forced Marriages
• Problems of Domestic Servants and Migrant Workers
According to HRW (Human Rights Watch) report, woman face sexual
violence and harassment in prisons; that too in developed countries like USA,
HRW has rated India as the top most dangerous countries in the world for
women to travel. Other dangerous countries are Brazil, Turkey, Egypt,
Columbia, Guatemala, Mexico, and Kenya. In countries like Afghanistan;
women are severely punished for moral crimes like adultery, running away
from home without man’s permission, etc.
There are certain International Treaties and Conventions for women’s human
rights.
 CEDAW (Convention for Elimination of All forms of Discrimination against
Women) 1979 – Contains 30 Articles. Also known as International Bill of
Women’s Rights. This is the first convention to recognise Reproductive Rights
of Women.
There is also a CEDAW Committee for implementation of the rights State
parties who have signed CEDAW should submit periodical report. State parties
who have signed the Optional Protocol to CEDAW should agree to submit to the
jurisdiction of the CEDAW committee, in cases of women’s rights violation in
these States. It is noteworthy that India has not signed the Optional Protocol to
CEDAW.
 UNIFEM ( UN Development Fund for Women) 1976
Provides financial and technical assistance to programmes to promote
women’s human rights
 In 1993, the UN General Assembly passed a Declaration on Eliminating of
violence against women
 UN Women, 2010 (UN Entity for Gender Equality and Empowerment of
Women)
▪ Section 304 – B IPC which makes death a criminal offence
▪ Indian Evidence Act also contains presumptions in case of Dowry death and
consent in Rape case.
▪ Under IPC, disclosing identity of rape victim is also a criminal offence.
▪ In case of offence of Adultery women are not punishable under IPC
▪ Section 125 Cr. PC maintenance to wives

The fact that India had a woman Prime Minister and Chief Ministers are
indicative of the acceptance of gender equality. However, it is to be noted that
problems of tribal women, especially unwed mothers have not been given due
importance.

Indian judiciary also delivered certain landmark judgements on human

rights of women in Visakha v. State of Rajasthan (1997) the Supreme Court
issued certain guidelines under Article 141 of the Constitution to prevent sexual
harassment of women in work places. In State of Maharashtra. v. Madhukar
Mardhikar (1991) it was held that even a prostitute has Right to privacy and
human dignity. No one can violate her person without her consent. In Shahbano
case Section 125 of Cr.PC (right to maintenance from husband) was made
applicable to Muslim women also. But, the effect of this decision was diluted
by the passing of Muslim Women (Protection Right on Divorce) Act 1986

National Commission for Women and State Commission for Women are also
established to protect and promote interest of women. These commissions also
aim at:

→ Generating legal awareness among women

→ Provide pre-litigation services for women
→ Fund litigations involving women’s issues
→ Inspect jail, women’s homes and institutions, etc.
→ Provide speedy justice to women
→ Empowers women
→ Research and review existing laws and suggest reforms, etc.

The commission can entertain complaints and even take suo-moto action.

Other organisations for women’s rights

CREA, Manavi, Swayam, Vimochana, IGSSS, political based organisations like
Mahila Morcha, All India Democratic Women Association, etc.
2) CHILD The following are the universally recognised human rights of a
child:
→ Right to human identity
→ Right to special protection and care
→ Right of association with both parents including right not to be
separated from parents
→ Right to basic needs (food, clothing, shelter) as well as education and
health care
→ Right to adequate standard of living
→ Right to separate criminal laws
→ Right against discrimination on the grounds of race, religion, colour,
origin, etc
→ Right to live in safe environment
→ Right against abuse
→ Right to ply and recreation, balanced diet, good sleep
The rights of a child are co-relative to duties of parents, teachers and
guardians’ Juvenile delinquency, child labour, orphans, child refugees street-
children child abuse sale of children child-pornography are serious issues.
Forced military services infanticide organ sale are also problems. Children
should not be given capital punishment, life imprisonment and other rigorous
forms of punishment. Separate trials and separate treatment should be given
to Juvenile offenders.
IMPORTANT INTERNATIONAL COVENANTS
A) CRC (Convention on the Rights of the Child) 1989
Contains a full range of human rights (civil, cultural, economic, political and
social) of a child. USA and Somalia have not ratified it. A committee on the
Rights of Child was also formed to implement the provisions of this convention.
The CRC is based on 4 principles:
➢ Non discrimination
➢ Best interest of the child
➢ Right to life and Right to survival
➢ Right to development
 Optional Protocol on involvement of children in Armed Conflicts, 2002 and
Optional Protocol on sale of children, Child Prostitution and Pornography, 2002
are also part of the CRC.
B) VIENNA DECLARATION AND PROGRMME OF ACTION 1993
All States should make national action plans and international efforts to
implement the provisions of CRC. Special priority should be given to reduce
maternal and infant mortality rates, malnutrition, providing safe drinking
water and basic education. Emergency action plans should be made in the
event of natural disaster and armed conflicts
C) CHILD RIGHTS CAUCUS was set up by the UN General Assembly to promote
full implementation of CRC
D) UNICEF (United Nations Children Fund) is a specialised agency that provides
humanitarian and development assistance to children and mother in
developing countries.
E) There are also ombudsman facilities in several countries to deal with human
rights violation of children.
UNBORN CHILD A collective reading of Article 25 of the UDHR, CRC 1989 ICCPR
CERD ICESCR Genocide Convention and UN Declaration of Rights of the Children
1959 bring out the following rights of unborn child:
→ Right to life
→ Special care, protection, nutrition and assistance during motherhood
→ Social security
→ No death penalty on pregnant women.
Right of life of unborn child is in direct conflict with the right of women to avoid
unwanted pregnancy. However, Medical termination of pregnancy only in
certain circumstances.
IN INDIA
India has ratified most of the international covenants on Rights of Child.
Constitution also authorises making of special laws for benefit of children
Article 15 & 16 Right to education was accepted in 2002. There are various laws
for the protection and empowerment of children
➢ Child Labour abolition Act
➢ Child marriage Restraint Act
➢ Juvenile Justice Act and Protection of Offenders Act
➢ Protection of Children from Sexual abuse Act 2012, etc.
There are also Child line centres and organisations like CRY (Child relief and
you), etc.
Indian Constitution also upholds rights of Child Article 15 (special laws can be
made for the benefit of Children).
Article 23 Prohibition of traffic in human beings and forced labour.
Article 24 Prohibition of employment of Children in factories, etc.
Section 82 & 83 of Indian penal Code grants immunity from criminal liability
to children under age of 7 years and conditional immunity to children between
the age of 7 and 12 years. [Section 82 provides Absolute immunity (Doli
incapase), Section 83 provides partial immunity)
Section 293 of IPC, Sale of obscene objects, etc. to a child.
Section 305 of IPC Abetment of suicide of Child.
Sections 312 – 318 of IPC Miscarriage, Injuries to Unborn Children, Exposure
of Infants, and Concealment of birth.
Sections 363-372 of IPC Kidnapping minors for begging and maiming,
Procuration of minor, selling minor for prostitution, etc.
Section 361 of IPC kidnapping from lawful guardianship.
Section 125 of Cr.PC gives a child the right to claim maintenance from its
father.
Section 112 of Indian Evidence Act lays down a non rebuttable presumption
of legitimacy of a child from during mirage and within 280 days of dissolution
of marriage.

3) Refugees
Refugees are persons who have to run away from their homeland in order
to escape from natural disaster, war genocide, torture and persecution.
Refugees have right to seek asylum in other countries. This is evident from the
UN Convention relating to status of refugees, 1951 and Article 14 of UDHR. The
UN also has a High Commissioner for refugees (UNHRC) which is helping more
than 22 million refugees worldwide. States who are parties to the Refugees
Convention, 1951 have responsibility to protect and safeguard refugees within
their territory and co-operation within UNHRC.
It is to be noted that India is not a party to the Refugees Convention, 1951.
There are also no domestic laws on this subject. The only law in India governing
entry and stay of foreigners is the Foreigners Act, 1966. The National Human
Rights Commission of India has held that the provisions of the Refugees
Convention, 1951 can be relied on when there is no conflict within municipal
law of India in Neduraman and Dr. S Ramdas v. Union of India and State of Tamil
Nadu (1992), the Madras High Court held that Article 14 (Right to equality) and
Article 21 (Right to life and personal liberty) are available to non citizen also;
including refugees. The Court emphasised that refugees should be given the
right of voluntary repatriation. Note: Women, Children & Refugees are often referred to as vulnerable
groups

4) Tribal and SC ST’s

The ILO Convention No: 169 of 1957 is an International Treaty to protect and
promote the interests of tribal and indigenous persons. This convention does
not define ‘tribal’ and ‘indigenous persons’. However, it is well settled that
tribal have all the human rights and fundamental freedoms like any other
person without discrimination. The following are also rights tribal:
→ Right to self-identification and self-determination based on their respect
for the earth tradition and customs.
→ Right to citizenship.
→ Right to be consulted and informed before beforehand about any issues
or projects affecting their interests.
→ Right to participate in such projects and decide their priorities for
development.
→ Right not to be arbitrarily dispossessed of their land and natural habitats.
→ Right to be compensated
Right of consultation should be through their representatives and should be in
good faith. It is to be noted that there are only 27 parties to the convention No:
169. These States are bound to implement the provisions of the convention
through domestic laws.
UNIPP (United Nations Indigenous Persons Programme) and UN Special
Rapporteur to Sub-commission on Prevention of Discrimination &Protection of
Minorities are also committed towards this goal India is a State party to ILO
convention, 169. Article 15 and 16 of Indian Constitution provides for making
special laws for benefit of SCST’s and backward classes. Article 17 of
Constitution prohibits untouchablity. In fact, the constitution of India was
drafted by an untouchable (Dr, B.R.Ambedkar). In India, SCST’s and backward
classes are given several concessions and reservations in the matter of
employment, education, etc.
The SCST’s (Prevention of Atrocities) Act 1989 is also landmark legislation.
This Act gives a list of 22 offences and the punishments Egs: - insulting, injuring,
abusing a member of SCST, wrongfully dispossessing him from his land,
premises, interfering with his lawful rights over water or with his right to vote
forced labour, sexual exploitation, outraging modesty, malicious prosecution,
obstructing him from entering a public place, giving or fabricating false evidence
against him, committing mischief against his property, Abetment of these
offences, etc. Punishment ranges from 6 months to life imprisonment and fine,
forfeiture of property, higher punishment to public servants and repeated
offences.
There are also land laws within each state of India regulating transfer of
land by SCST.
Narmada Bachao Andolan under the leadership of social activist, Medha
Patkar is also a great move for protecting the rights and interests of tribal. This
movement is directed against Sardar Sarovar Dam Project for hydro electric
power over the river Narmada in Gujarat. In addition to environmental
problems, it would also result in displacement of large number of tribal in that
area and improper rehabilitation.
This movement consist of tribal, adivasis, farmers, environmentalists
human rights activists and even celebrities who organise hunger strikes and
media coverage. It was alleged that there was no proper planning and research
for the project and no decisions regarding compensation to the displaced
persons. In 1995, World Bank which had agreed to fund for the Dam project
withdraw from the scheme.
After several years of hearing the Supreme Court in 2000 has allowed the
construction of the Dam to proceed subject to conditions. Court also formed a
mechanism to supervise and monitor the construction and to ensure that it is
completed in the least harmful manner.
National Human Rights Commission v. State of Arunachal Pradesh
Chakma-Hajong tribal who had migrated to North East India from
Bangladesh in 1964 were cruelly tortured and threatened by the people of
North-East India (Assam, Arunachal Pradesh, etc.) there were forcibly driven
out of these States.
Supreme Court ordered the Union and State government to provide
security and other facility to Chakma-Hajong tribal.
5) Minorities
UDHR and ICCPR (Article 27) clearly lays down that no person shall be
discriminated on the ground of race, colour, religion, language, origin or other
facts minority population of any country is entitled to the same rights and
privileges as those of the majority population. Rights of minorities are:
→ Right of Identification
→ Right against discrimination
→ Right of protection of existence
→ Right against persecution
→ Right to protect and preserve their cultural customs and traditions
 → Right to participate in political and public life, etc.
The first International Convention on Minorities was the GENOCIDE
CONVENTION 1951. This convention was necessitated after the 2nd World war
during which several atrocities were committed against Jews by German Nazis.
There are 142 states parties to the convention. These States are committed to
prevent and punish genocide in their territories. Genocide (manslaughter)
means act committed with intent to destroy a national, ethnical, racial or
religious group. Also includes attempt, abetment and conspiracy to commit
genocide. Persons who commit genocide should be tried and punished either
by the competent state or by the International Criminal Court.
UNHCM (UN High commissioner for Minorities) was also established for
protection and promotion of interest of minorities. The European Union also
has institutions for this purpose. Many countries in the world have
‘Ombudsman’ and Commissions for minorities.
India being a secular country has always tried to uphold the interest of
minorities the following are the relevant provisions in the Indian Constitution:
• Article 25 Freedom of Religion
• Article 14 Right to equality
• Article 15 & 16 no discrimination on the ground of religion, race, language,
etc.
• Article 29 & 30 Cultural and Educational rights (It is to be noted that
minority unaided schools are exempted from the Right to Education Act)
• Article 31 State shall not discriminate between educational institution in
the matter of granting aid
• Article 27 No tax for promotion of religion
However many states in India have laws which restrict Article 25 (freedom of
religion).
There is also National Commission for Minorities and State Commission for
Minorities
Functions of these Commissions are:
→ Evaluate the progress and development of minorities
→ Ensure constitutional safeguards to minorities
→ Recommendations and effective implementations for benefit of
minorities
→ Entertain complaints related to minorities
The commissions have powers of a Civil Court in this regard
The NCM recognises 5 groups as minorities namely: Muslim, Christians, Sikhs,
Buddhists and Parsis.
 Problem of DALIT CHRISTIANS is very pathetic in India. They are neither
accepted properly in Christian community nor are they given the privileges of
backward classes by the government under the presidential order of 1950, Dalit
Sikhs and Dalit Buddhists were given the status of Hindus. But nothing was said
about the status of Dalit Christian. Mandal Commission Report had
recommended State assistance to be given to genuinely backward sections
without any discrimination. Here also Dalit Christians were ignored. Several
laws made for the benefit of SCST’s like protection of Civil Rights Act 1955 and
SCST (Prevention of Atrocities) Act 1989 is also not applicable to Dalit Christians.
There are also various legal biases under personal laws like marriage laws,
succession laws, guardianship and maintenance laws, etc.
6) PRISONERS also have several human rights; but subject to certain
conditions
▪ Right to life
▪ Right to legal aid
▪ Right to speedy, free and fair trial (Hussainara khotoon case 1979)
▪ Right to be free from torture and maltreatment (Sunil Batra v. Delhi
Administration 1978, Charls Sobraj case)
▪ Right against unnecessary fetters and handcuffing (Citizen for democracy
v. State of Assam 1995)
▪ Right to bail and remand
▪ Right against solitary confinement
▪ Right to inform someone about the arrest, etc. (Joginder Kumar v. State of
UP 1994)
▪ Right to compensation (Rudul shah v State of Bihar)
▪ Right to additional protection (Raikonda Reddy v. State of AP)
There are International Conventions dealing directly on the subject of
prison justice. There is only the Geneva Convention on Prisoners of War 1948
and general principles laid down in the UDHR and ICCPR.
In India, the centuries old Prisons Act, 1894 and Prisoners Act, 1900 is
still followed.
The main problems faced in Indian prisoners are:
 Inhuman treatment, Custodial death
 Overcrowding
 Lack of good trained staff and poor management
 Bad condition of age-old prison building
 Problem placed by under trial prisoners, delay in trial, keeping together
with convicted prisoners, etc.
 In Sher singh v. State of Punjab (1983): it was held that undue delay in
execution of death sentence and the mental anguish faced by the prisoner due
to it is violative of Art 21 of the Constitution.
In Jagdish v. State of M.P (2009) it was held that referring to prisoners as
death roué prisoners or condemned prisoners remained them about their
situation every moment. Condemned prisoners and their families have a right
to require decision to be taken within reasonable time. Article 21 of the
Constitution is much relevant even at the stage of death sentence. Pardon must
be based on sound legal principles related to the case.
In Union of India v. Devendra Nath Rai [(2006) 2scc243] Supreme Court
laid down the circumstances under which death sentence may be awarded:
→ If murder is committed in an extremely crucial manners so as to shock the
conscience of the society.
→ If the murder is committed for bad and selfish motive Eg: - Murder by hired
killers, Murder for financial gains by a person in position of trust, Murder
committed while betraying own country
→ Murder of a member of SCST for impersonal reasons, dowry death, bride
burning, killing wife to marry another woman, etc.
→ Multiple murder
→ Murder of innocent child, helpless woman, old or infirm person.
7) WORKERS
Whether workers rights or labours rights are human rights proper or just
legal rights this has been a topic of debate. However, it has been universally
accepted that workers do possess a minimum guaranteed human rights. This is
very evident from International Agreements like UDHR, (Articles 23 & 24),
ICESCR (Articles 6 to 8) and standards laid down by ILO (International Labour
Organisation) some of these rights are:
• Right to work and employment
• Right against discrimination in employment matters
• Right to rest, leisure and holidays with pay
• Right to safe working conditions
• Right to form unions (freedom of association)
• Right of collective bargaining
• Right to reasonable wages and minimum wages
• No slavery, forced labour or child labour.
WTO (World Trade Organisation) has recognised certain standards to be
followed for labour organisations. ILO which is a United Nations agency
originated in 1919 deals with international labour issues and register
complaints against states that are violating its rules. However, it cannot impose
punishments or sanctions on the government. It has a tripartite structure
consisting of government employers and workers in the ration of 2:1:1. Till date,
it has adopted more than 189 Conventions. It holds International Labour
Conferences in every. States have to submit reports at these conferences
currently 185 countries are members of ILO.
Most labour campaigns around the world were for the cause of limiting
hours of work. The European Union has fixed a minimum limit of 48 hours a
week; including overtime. Extra wages should be given for overtime.
There is also an International Covenant for migrant workers.
In India there are unions for almost all classes of workers including domestic
servants. All the relevant Constitutional provisions (Art 14, 15, 19, etc.) are also
applicable to labour laws. There are wide verities of labour laws in India like:
 Payment of wages Act, 1936
 Minimum wages Act, 1954
 Trade Unions Act, 1926
 Workmen’s Compensation Act, 1923
 Industrial disputes Act,1947 Employment State Insurance Act, 1948
 Factories Act, 1948
 Maternity benefits Act, 1961
 Employees Provident fund Act.
8) STATELESS PERSONS
Stateless persons are persons who do not have nationality (citizenship) of
any State. The interests of such persons are not protected by any State.
Sometimes persons who are driven away from their home country and become
refugees may become Stateless persons. Currently, there are more than 12
million Stateless persons around the world. Most of these persons are found in
countries like Palestine, Bangladesh, India, Nepal Congo Iraq, Kenya, Kuwait,
Lebanon Syria, Saudi Arabia, Malaysia and Thailand. Largest numbers of
Stateless persons are found in Palestine.
The UDHR expressly lay down Right to nationality as human rights and says that
no one shall be arbitrarily deprived of his nationality.
Convention Related to Status of Refugees, 1951 which has been ratified by
145 countries is the most important international document in this regard.
Convention on reduction of Statelessness, 1961, which lays down detailed
provisions on acquiring and losing of Nationality, has been ratified only by 38
States. This convention also lays down any disputed between stateless
regarding nationality of any person shall be submitted before the ICJ.
UNHCR (UN High Commissioner for Refugees) has also worked hard to solve
this problem. As a result of its efforts, many Tajikistan refugees got citizenship
of Kirgizstan, more than 3lakh Tamilians got citizenship of Srilanka.
Stateless persons carry Nansen passports while travelling from one to
another.
Human rights Theories
Some theories have been propounded in past to explain the rights of
individual knows as right of mankind, natural rights or human rights. A brief
discussion of the theories is being given below:
1) Natural law theory. - as remarked by Dias no other firmament of legal or
political theory is so bejewelled with stars as that of “Natural Law” for it has
engaged the attention of some of the greatest thinkers of all ages. The credit
of giving birth to natural laws goes to Greek. It engaged the attention of
eminent Greek scholars such Sophocles and Aristotle. After the Greek it was
further developed and elaborated by the Romans. The law of nature is the
expression of what is just against what is merely expedient at a particular
time and place, it is what is reasonable against what is arbitrary, what is
natural against what is convenient and what is for social good against the
personal will. Thus natural law was based on the rational and reasonable
needs of a man’s nature. According to Romans natural law embodied the
elementary principles of justice which were the dictate of rights and reason.
In other words, those principles were accordance with nature and were
unalterable and eternal. Natural rights theory has been derived from the
natural law theory. The natural rights theory can be said to be akin or closely
associated with modern human rights. John Locke was the chief exponent of
natural rights theory. According to John Locke, human being existed in a state
of nature where men and women were in a state of freedom, able to
determine their actions and also in a state of equality. Locke further
imagined that in such a state of nature, no one was subjected to the will or
authority of another. Subsequently, in order to avoid certain hazard and
inconvenience of the state nature they entered in to a contract, some sort of
social contract, whereby they mutually agreed to form a community and set
up a body of politic. But they retained certain natural rights, such as, right of
life, liberty and property. It was the duty of the government to respect and
protect the natural rights of its subjects. A government which failed or
neglected the said duty would forfeit its validity and office. However, it
may be noted that the concept of natural law, and so also that natural rights
 theory underwent changes in different periods in accordance with times and
circumstances.
2) Positivism or the theory of the Authority of State. – The positivism was in
vogue in 18the and 19th centuries. Positivism believed that people would be
bound to obey law if it was created by appropriate legislative authority of
sovereign irrespective of its being reasonable or unreasonable. The
positivists called this law, law positivism i.e. the law which is in fact as,
contrasted with law which ought to be. Bynker shoek was one of the chief
exponents of the positivists school. According to the positivists, the source
of human rights lies in the enactment of a system of with sanctions attached
to it. They emphasise the distinction between is and ought and citizen
natural law theorists for undue emphasis on ought and blurring the
distinction between two. The modern exponent of positivism is HLA Hart.
According to him, there is a distinction between invalidity of law and the
morality of law this is the basic difference between natural rights theory and
positivism theory. According to positivists, a law to be invalid must be
enacted by an appropriate legislative authority. Such a law remains valid,
irrespective of its morality.
3) Marxist theory. - The Marxists do not conceived the rights individuals as
distinct from the rights of the society as whole. According to them, only by
achieving the upliftment of the society or community, the higher freedoms
of individuals can be achieved. Thus in views of this theory even satisfaction
of basic needs of individual are contingent on realization of social goals. In
their view, notion of individual right is a bourgeois’ illusion. They regard
concepts of law, morality democracy, freedom etc. as historical categories
whose content is determined by the conditions of life of society or
community.
4) Theories based on justice. – John Rawl is the chief exponents of this theory.
According to him justice is the first virtue of social institution. In his view the
role of justice is crucial to the understanding of human rights. Indeed human
rights are an end of justice. The principles of justice provide a way of
assigning rights and duties in the basic institutions of society co-operation
on. The general conception of justice behind the principles of justice is one
of fairness. The concept of fairness throughout in theories based on justice.
The concepts of fairness and justice help to determine all social primary
goals, such is liberty and opportunity, income and wealth and leases of self-
respect which are to be distributed equality unless an exception is made for
the benefit of least forward.
5) Theories based on dignity. The exponents of this theory regard the
protection of human dignity as a paramount objective of social policy.
According to them there are eight interdependent values upon which human
rights depend. They are:
a) Respect
b) Power
c) Enlightenment
d) Well being
e) Health
f) Skill
g) Affection
h) Rectitude
The ultimate goal of the exponents of theories based on dignity is to ensure
a world community in which there is democratic distribution of values, all
available resources to be utilised to the maximum and where paramount
objective of social policy is the protection of human dignity. The right
guaranteed under Art 21 of the Constitution of India includes the right to lead
dignified life.
6) Theories based on equality of respect and concern . This theory was
propounded by Dworkin the basic premises of this theory is that government
must treat all their citizens with equal concern and respect. Dworkin has
affirmed the utilitarian principle that everybody can count, for one, nobody
for more than one. He even advances the idea of state intervention in order
to achieve social welfare.
No single theory can satisfactorily explain present state and
development of human rights. However, the natural rights theory based on
natural seems to be akin to the present concept and development of human
rights. Theory of natural rights along the theories based on justice, theory
based on dignity and theory based on equality of respect and concern may
go a long way to explain the present trend of respect for and protection of
human rights. The above mentioned theories based on justice and theory
based on dignity is based on natural law theory.