Sasi
K.G.
01. The Convention on the Prevention and Punishment of the Crime of Genocide, 1948
Adopted by Resolution 260 (III) A of the United
Nations General Assembly on 9 December 1948.
The Contracting Parties confirm
that genocide, whether committed in time of peace or in time of war, is a crime
under international law which they undertake to prevent and to punish.
In the present Convention,
genocide means any of the following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such:
The following acts shall be
punishable:
Persons committing genocide or
any of the other acts enumerated in Article 3 shall be punished, whether they
are constitutionally responsible rulers, public officials or private individuals.
The Contracting Parties
undertake to enact, in accordance with their respective Constitutions, the
necessary legislation to give effect to the provisions of the present
Convention and, in particular, to provide effective penalties for persons
guilty of genocide or any of the other acts enumerated in Article 3.
Persons charged with genocide
or any of the other acts enumerated in Article 3 shall be tried by a competent
tribunal of the State in the territory of which the act was committed, or by
such international penal tribunal as may have jurisdiction with respect to
those Contracting Parties which shall have accepted its jurisdiction.
Genocide and the other acts
enumerated in Article 3 shall not be considered as political crimes for the
purpose of extradition.
The Contracting Parties pledge themselves in
such cases to grant extradition in accordance with their laws and treaties in
force.
Any Contracting Party may call
upon the competent organs of the United Nations to take such action under the
Charter of the United Nations as they consider appropriate for the prevention
and suppression of acts of genocide or any of the other acts enumerated in
Article 3.
Disputes between the
Contracting Parties relating to the interpretation, application or fulfilment
of the present Convention, including those relating to the responsibility of a
State for genocide or any of the other acts enumerated in Article 3, shall be
submitted to the International Court of Justice at the request of any of the
parties to the dispute.
The present Convention, of
which the Chinese, English, French, Russian and Spanish texts are equally
authentic, shall bear the date of 9 December 1948.
The present Convention shall be
open until 31 December 1949 for signature on behalf of any Member of the United
Nations and of any non-member State to which an invitation to sign has been
addressed by the General Assembly.
The present Convention shall be ratified, and
the instruments of ratification shall be deposited with the Secretary-General
of the United Nations.
After 1 January 1950, the present Convention may
be acceded to on behalf of any Member of the United Nations and of any
non-member State which has received an invitation as aforesaid.
Instruments of accession shall be deposited with
the Secretary-General of the United Nations.
Any Contracting Party may at
any time, by notification addressed to the Secretary-General of the United
Nations, extend the application of the present Convention to all or any of the
territories for the conduct of whose foreign relations that Contracting Party
is responsible.
On the day when the first
twenty instruments of ratification or accession have been deposited, the
Secretary-General shall draw up a process-verbal and transmit a copy of it to
each Member of the United Nations and to each of the non-member States
contemplated in Article 11.
The present Convention shall come into force on
the ninetieth day following the date of deposit of the twentieth instrument of
ratification or accession.
Any ratification or accession effected
subsequent to the latter date shall become effective on the ninetieth day
following the deposit of the instrument of ratification or accession.
The present Convention shall
remain in effect for a period of ten years as from the date of its coming into
force.
It shall thereafter remain in force for
successive periods of five years for such Contracting Parties as have not
denounced it at least six months before the expiration of the current period.
Denunciation shall be effected by a written
notification addressed to the Secretary-General of the United Nations.
If, as a result of
denunciations, the number of Parties to the present Convention should become
less than sixteen, the Convention shall cease to be in force as from the date
on which the last of these denunciations shall become effective.
A request for the revision of
the present Convention may be made at any time by any Contracting Party by
means of a notification in writing addressed to the Secretary-General.
The General Assembly shall decide upon the
steps, if any, to be taken in respect of such request.
The Secretary-General of the
United Nations shall notify all Members of the United Nations and the
non-member States contemplated in Article 11 of the following:
The original of the present
Convention shall be deposited in the archives of the United Nations.
A certified copy of the Convention shall be
transmitted to all Members of the United Nations and to the non-member States
contemplated in Article 11.
The present Convention shall be
registered by the Secretary-General of the United Nations on the date of its
coming into force.
02. UN Convention against Torture, Cruel and Degrading Treatment and Punishment, 1984
(Adopted and opened for signature,
ratification and accession by General Assembly resolution 39/46 of 10 December
1984, Entry into force 26 June 1987.)
Part-I
Article 1 1. For the purposes of this convention, the term
“torture” means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him for an
act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason on
discrimination of any kind, when such pain or suffering is inflicted by or at
the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any
international instrument or national legislation which does or may contain
provisions of wider application.
Article 3 1. No State party shall expel, return (“refouler”) or
extradite a person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether
there are such grounds, the competent authorities shall take into account all
relevant consideration including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of human
rights.
Article 4 1. Each state party shall ensure that all acts of torture
are offences under criminal law. The same shall apply to an attempt to commit
torture and to an act by any person which constitutes complicity or
participation in torture.
2. Each state party shall make these offences
punishable by appropriate penalties which take into account their grave nature.
Article 8 1. The offences referred to in article 4 shall be deemed
to be included as extraditable offences in any extradition treaty existing
between States Parties. The States Parties undertake to include such offences
as extraditable offences in every extradition treaty to be concluded between
them.
2. If a State Party which makes extradition
conditional on the existence of a treaty receives a request for extradition
from another State Party with which it has not extradition treaty, it may
consider this Convention as the legal basis for extradition in respect of such
offences. Extradition shall be subject to the other conditions provided by the
law of the requested State.
3. States Parties which do not make
extradition conditional on the existence of a treaty shall recognize such
offences as extraditable offences between themselves subject to the conditions
provided by the law of the requested State.
4. Such offences shall be treated, for the
purpose of extradition between States Parties, as if they had been committed
not only in the place in which they occurred but also in the territories of the
States required to establish their jurisdiction in accordance with article 5,
paragraph 1.
Article 9 1. States Parties shall afford to one another the
greatest measure of assistance in connection with criminal proceedings brought
in respect of any of the offences referred to in Article 4, including the
supply of all evidence at their disposal necessary for the proceedings.
2. States Parties shall carry out their
obligations under paragraph 1 of this article in conformity with any treaties
on mutual judicial assistance that may exist between them.
Article 11 Each State party shall keep under systematic review
interrogation rules, instructions, methods and practices as well as
arrangements for the custody and treatment of person subjected to any form of
arrest, detention or imprisonment in any territory under its jurisdiction, with
a view to preventing any cases of torture.
Article 12 Each State party shall ensure that its competent
authorities proceed to a prompt and impartial investigation, whenever there is
reasonable ground to believe that an act of torture has been committed in any
terretory under its jurisdiction.
Article 13 Each State party shall ensure that any individual who
alleges that he has been subjected to torture in any territory under its
jurisdiction has the right to complain to, and to have his case promptly and
impartially examined by, its competent authorities. Steps shall be taken to
ensure that the complainant and witnesses are protected against all ill
treatment or intimidation as consequences of his complaint or any evidence given.
Article 14 1. Each party shall ensure in its legal system that the
victim of an act of torture obtains redress and has an enforceable right to
fair and adequate compensation, including the means for as full rehabilitation
as possible. In the event of the death of the victim as a result of an act of
torture, his dependents shall be entitled to compensation.
2. Nothing in his article shall affect any
right of the victim or other persons to compensation which may exist under
national law.
03. UN Declaration of Duties and Responsibilities of Individuals, 1997
On March 25-28, 1997 the
United Nations Educational, Scientific, Cultural Organization (UNESCO),
headquartered in Paris, held the first meeting of a Committee of philosophers
representing a wide range of religious, ethnic, ethical and philosophical
traditions to produce a Declaration providing a philosophical basis for a
global ethic. At present there is only an initial tentative draft circulating
among the Committee members.
Preamble
Whereas a fundamental
distinguishing characteristic of human beings is that they alone never cease
asking "why?"; they inevitably and unquenchably seek the meaning of
things, and then strive to live accordingly,
Whereas humans are capable of
knowing both particular things and general abstractions; because they can then
consequently make comparisons, they also are capable of free, and therefore
likewise responsible, choices,
Whereas because both the human
search for meaning and the human ability fundamentally to make choices freely
and responsibly are "infinite," that is, their horizons stretch out
endlessly, the dignity of the human being is correspondingly
"infinite",
Consequently these reflections
on the human reality provide a reasonable basis for the affirmation by the UN
1948 "Universal Declaration of Human Rights" of "the dignity and
worth of the human person",
Whereas recognition of the
inherent dignity and the equal and inalienable rights of all members of the
human family -which is the foundation of freedom, justice and peace in the
world -presupposes and implies certain obligations or responsibilities, Whereas
the exclusive insistence on rights can result in self - opinionated and self -
righteous attitudes,
Whereas neglect of
responsibilities can lead to arbitrariness, lawlessness and chaos,
Whereas both the rule of law
and human rights depend on the readiness of men and women to act justly,
because rights without the corresponding commitment to responsibilities cannot
long endure,
Whereas global problems such
as poverty, underdevelopment, environmental pollution, population explosion,
disease, crime, nuclear proliferation, corruption and fanaticism demand global
solutions, and therefore ideas, values and norms valid across all cultures and
societies, Whereas all human beings, to the best of their knowledge and
ability, are responsible for a better global order, which cannot be created or
enforced by laws, prescriptions, and conventions alone, Whereas the aspirations
for progress and improvement of the human race on planet earth cannot be
safeguarded without a minimal fundamental consensus concerning binding values,
irrevocable standards, and fundamental ethical attitudes which apply to all
human beings and institutions,
Now, therefore, the General
Assembly, Proclaims this "Universal Declaration of Human
Responsibilities" as a common standard of
commitment by all peoples and all nations to the end that every
individual and organ of society shall
contribute to the authentic autonomy of every individual and the justified
requirements of communities.
We hereby confirm and deepen
on the level of an ethic of responsibility what has already been formally
proclaimed on the level of rights, namely: the full realization of the
intrinsic dignity of the human person, the inalienable freedom and equality in
principle of all humans, solidarity with each other, and the interdependence of
all sentient beings.
Consciousness of these
responsibilities of individuals and institutions are to be founded by education
and teaching as well as strengthened and promoted by progressive measures,
national and international.
We further recognize that
dialogue -i.e., conversation whose `primary' aim is to learn from the other -
is a necessary means whereby women and men learn to respect the other, expand
and deepen their understanding of the meaning of life, and develop an ever
broadening consensus whereby men and women can live together on this globe in
an authentically human manner. Article 1
Every human being, regardless
of social origin, sex, property, color, language, nationality or religion,
ought to be treated humanely.
Article 2
All human beings should oppose
all forms of inhumanity, especially fanaticism, hate, and social exclusion, and
work for greater humaneness.
Article 3
No individual human or group
of humans, including the state, social class, pressure group, police or
military agency stands above the ethical dictates of good and evil. All should
behave in a genuinely human fashion, that is: Do good and avoid evil.
Article 4
All human beings, endowed with
reason and conscience, should act towards one another in a spirit of
sisterhood/brotherhood. Therefore, there should be applied to all human beings,
both individuals and groups, including among others families, communities, race
s, nations, and religions, the long - standing principle of so many ethical and
religious traditions: What you do not wish done to yourself, do not do to
others.
Article 5
Every human being is always to
be treated as an end, never as a mere means, always as a subject of rights,
never as a mere object, whether in business, politics, communication,
scientific research or other areas of life.
Article 6
No one, except in the case of
self - defense, has the right to injure or to kill. Every human being ought
rather to have respect for life.
Article 7
Although every human person is
infinitely precious and must be unconditionally protected, the lives of animals
and plants which inhabit this planet with us likewise deserve protection,
preservation, and care. That is, we humans are a part of nature, not apart from
nature. Hence, as beings with the capacity of foresight we bear a special
responsibility - especially with a view to future generations - for the air,
water, and soil, that is, for the earth, and even the cosmos.
Article 8
Conflicts ought to be resolved
without violence. This principle is valid for all institutions, especially
states, as well as for individuals. Particularly public officials are obliged
to work within a framework of a just order and to commit themselves, whenever
possible, to non - violent, peaceful solutions.
Article 9
No one has the right to rob or
dispossess in any way any person, group of persons, or the
commonweal. Every human being
ought rather to deal honestly and fairly.
Article 10
Property, limited or large,
carries with it an obligation; ownership not only permits the personal use of
property but also entails the responsibility to serve the common good.
Article 11
Economic and political power
should not be misused as instruments of domination, but for service to
humanity. Therefore mutual respect and the will to mediation should be fostered
so as to reach a reasonable balance of interests in a sense of moderation and
fairness.
Article 12
Wherever rulers repress the
ruled, institutions threaten persons, or might oppresses right, human beings
have not only the right but the responsibility to resist - whenever possible
non - violently.
Article 13
No one should speak lies.
Every human being ought rather to speak and act truthfully.
Article 14
The communications media, to
whom the freedom to report for the sake of truth is entrusted and to whom the
office of guardian granted, do not stand above ethics but have the obligation
to respect human dignity, human rights, and fundamental values. They are duty -
bound to objectivity, fairness, and humaneness. Hence, they have no right to
intrude into individuals' private spheres, manipulate public opinion, or
distort reality.
Article 15
Politicians, scientists and
artists are doubly obliged, as individual persons and as society's leaders, to
model ethical standards, and especially to serve truth.
Article 16
Religious persons, and
especially religious leaders, whose religious freedom is guaranteed, ought to
avoid prejudice, fanaticism and hatred towards those of different belief, let
alone incite or legitimize religious wars. They rather should always be guides
for truthfulness in thinking, speaking, and acting.
Article 17
All individuals and groups are
obliged not to treat other persons as mere sex objects or disadvantage them
because of their sexuality. Rather, men and women should treat each other in
their sexual and kindred relationships with respect and as equal partners.
Article 18
Young people should learn at
home, school, religion and elsewhere in society that sexuality in itself is a
creative and positive - not a negative, destructive, or exploitative - force.
As a life - affirming shaper of community, sexuality can be effective only when
partners accept the responsibility of caring for one another's happiness.
Article 19
Marriage, which, despite its
cultural and religious variety, should be characterized by love, loyalty, and
permanence and guarantee mutual security and support.
Article 20
In the family, parents should
not exploit children, nor children parents. Their relationship should reflect
mutual respect, appreciation, and concern.
Article 21
The different professions and
other societal groupings, such as medicine, business, journalism, among others,
should develop current codes of ethics which will relate to the ethical
principles of this Declaration by providing more specific guidelines.
Article 22
Nothing in this Declaration
may be interpreted as implying for any state, group or person the right to
engage in any activity aimed at the destruction of any of the rights, freedoms
or responsibilities set forth in the 1948 UN Universal Declaration of Human
Rights or subsequent UN documents.
04. UN agencies to monitor compliance with Human Rights and mechanisms for enforcement
01. The UN Office of the High Commissioner for Human Rights (OHCHR)
OHCHR provides
expertise and support to a range of human rights monitoring mechanisms, as well
as to the UN’s Human Rights Council. Human rights promotion and
protection is also central to the work of dozens of other UN bodies and
agencies. Collectively, they hold countries to shame, address deep injustices,
move legislators from thinking about rules to thinking about lives, and work to
enhance human rights, one person at a time, one community at a time, nation by
nation, and for us all. Only by working together can universal challenges like
human rights that know no borders be overcome.
02. United Nations Code of Conduct for Law Enforcement Officials
(Adopted by General resolution 34/169 of 17
December, 1979)
Article 1 Law enforcement officials shall have the duty imposed
upon them by law, of serving the community and by protecting all person against
acts, consistent with the high degree of responsibility required by their
profession.
Article 2 In the performance of their duty, law enforcement
officials shall respect and protect human dignity and maintain and uphold the
human rights of all persons.
Article 3 Law enforcement officials may use force only when
strictly necessary and to the extent required for the performance of their
duty.
Article 4 Matters of a confidential nature in the possession of law
enforcement officials shall be kept confidential, unless the performance of
duty or the needs of justice strictly require otherwise.
Article 5 No law enforcement officials may inflict, instigate
torture, other cruel, inhuman or degrading treatment or punishment, nor may any
law enforcement officials invoke superiors orders or exceptional circumstances
such as state of war or a threat of war, a threat to national security,
internal to national security, internal political instability or any other
public emergency as a justification of torture or other cruel, inhuman or
degrading treatment or punishment.
Article 6 Law enforcement officials shall ensure the full
protection of all the health of persons in their custody and, in particular,
shall take immediate action to secure medical attention whenever required.
Article 7 Law enforcement shall respect the law any commit any act
of corruption. They shall also rigorously oppose and combat all such acts.
Article 8 Law enforcement officials shall respect the law and the
present Code. They shall also, to the best of their capability, prevent and
rigorously oppose any violations of them.
Law enforcement officials who have reasons to
believe that a violation of the present Code has occurred or is about to occur
shall report the matter to their superior authorities and, where necessary, to
other appropriate authorities or organs vested with reviewing or remedial
power.
05. Meaning and Concept of Human Rights Education
1. Meaning of Human Rights
Human beings are born equal in dignity and rights.
These are moral claims which are inalienable and inherent in all individuals by
virtue of their humanity alone, irrespective of caste, colour, creed, and place
of birth, sex, cultural difference or any other consideration. These claims are
articulated and formulated in what is today known as human rights. Human rights
are sometimes referred to as fundamental rights, basic rights, inherent rights,
natural rights and birth rights.
2. Definition of Human Rights
Dr. Justice Durga Das Basu defines “Human rights
are those minimal rights, which every individual must have against the State, or
other public authority, by virtue of his being a ‘member of human family’
irrespective of any consideration. Durga Das Basu’s definition brings out the
essence of human rights. The Universal Declaration of Human Rights (UDHR),
1948, defines human rights as “rights derived from the inherent dignity of the human
person.” Human rights when they are guaranteed by a written constitution are
known as “Fundamental Rights” because a written constitution is the fundamental
law of the state.
3. Characteristics and Nature of Human Rights
Following are the characteristics of human rights:
1. Human Rights are Inalienable - Human rights are conferred on an individual due
to the very nature of his existence. They are inherent in all individuals
irrespective of their caste, creed, religion, sex and nationality. Human rights
are conferred to an individual even after his death. The different rituals in
different religions bear testimony to this fact.
2. Human Rights are Essential and Necessary - In the absence of human rights, the moral,
physical, social and spiritual welfare of an individual is impossible. Human
rights are also essential as they provide suitable conditions for material and
moral upliftment of the people.
3. Human Rights are in connection with human
dignity – To treat another
individual with dignity irrespective of the fact that the person is a male or
female, rich or poor etc. is concerned with human dignity. For eg. In 1993,
India has enacted a law that forbids the practice of carrying human excreta.
This law is called Employment of Manual Scavengers and Dry Latrines
(Prohibition) Act.
4. Human Rights are Irrevocable: Human rights are irrevocable. They cannot be taken
away by any power or authority because these rights originate with the social
nature of man in the society of human beings and they belong to a person simply
because he is a human being. As such human rights have similarities to moral rights.
5. Human Rights are Necessary for the fulfillment
of purpose of life: Human life has a purpose. The term “human right” is applied to those conditions
which are essential for the fulfillment of this purpose. No government has the
power to curtail or take away the rights which are sacrosanct, inviolable and
immutable.
6. Human Rights are Universal – Human rights are not a monopoly of any privileged
class of people. Human rights are universal in nature, without consideration
and without exception. The values such as divinity, dignity and equality which
form the basis of these rights are inherent in human nature.
7. Human Rights are never absolute – Man is a social animal and he lives in a civic
society, which always put certain restrictions on the enjoyment of his rights
and freedoms. Human rights as such are those limited powers or claims, which
are contributory to the common good and which are recognized and guaranteed by
the State, through its laws to the individuals. As such each right has certain
limitations.
8. Human Rights are Dynamic - Human rights are not static, they are dynamic.
Human rights go on expanding with socio-eco-cultural and political developments
within the State. Judges have to interpret laws in such ways as are in tune
with the changed social values. For eg. The right to be cared for in sickness
has now been extended to include free medical treatment in public hospitals
under the Public Health Scheme, free medical examinations in schools, and the
provisions for especially equipped schools for the physically handicapped.
9. Rights a s limits to state power - Human rights imply that every individual has
legitimate claims upon his or her society for certain freedom and benefits. So
human rights limit the state’s power. These may be in the form of negative
restrictions, on the powers of the State, from violating the inalienable
freedoms of the individuals, or in the nature of demands on the State, i.e.
positive obligations of the State. For eg. Six freedoms that are enumerated
under the right to liberty forbid the State from interfering with the
individual.
06. Transformation of human rights framework from international to national level with special reference to India
01. Fundamental Rights
The various civil and political human rights and
also the economic, social and cultural human rights have been guaranteed by the
Constitution of India and re-christened as the “Fundamental Rights”.
The provisions of Part III of the Constitution
(Arts. 12 – 35) enshrine the Fundamental Rights, which are more elaborate than
those of any other existing written constitutions dealing with Fundamental Rights.
The constitution as amended by Forty fourth Amendment Act, 1979, classifies
Fundamental Rights under the six categories.
The fundamental rights are elaborated as follows:
Article 12 defines the “State” as “In this part, unless the context otherwise
requires, “the State” includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or other
authorities within the territory of India or under the control of the
Government of India.”
Article13 lays down certain restriction on violating fundamental right. The important
significance of this provision lies in the fact that it makes explicit
provision for judicial review of legislative enactments and executive actions
as to their conformity with guaranteed fundamental rights.
Right to Equality (Articles 14 – 18)
The five articles that cover the right to equality
are
a. Equality before law and equal protection of law
– Article 14
Article 14 consists of two parts namely equality
before law and equal protection of the laws. Equality before law means that no individual
should be given any special privilege by the state. Equal protection of the
laws means the right to equal treatment in equal circumstances. Equality before
the law also means treating unequal unequally. For example, the Supreme Court
has recommended that the ‘creamy layer’ of the Other Backward Classes’ (OBC)
should not be given the benefit of reservation.
b. Prohibition of discrimination on ground of
religion, race, caste, sex or place of birth - Article15
There are four aspects of this right mentioned in
following Clauses of this Article.
i. Prohibition of discrimination - Article15, Clause (1): This article prohibits the
state from discrimination against any individual or group of individuals. The
principle of non – discrimination is based on equality and dignity.
ii. Access to public places - Article15, Clause
(2): This right provides
that no citizen can be denied access to public places, places of entertainment
or the use of wells, tanks, and roads that are maintained out of State funds.
iii. Protective laws for women and children -
Article15, Clause
(3): A positive discrimination for women and children is made in the Indian
context. Thus provision for reservation for women, free education for children
etc. is provided.
iv. Reservation for backward classes – Article15,
Clause (4):
The constitution recognizes the Scheduled Caste,
Scheduled Tribes and Other Backward Classes as weaker sections of the population.
It authorizes the state to make special provisions for the advancement of these
sections of the society.
c. Equality of opportunity in matters of public
Employment -
Article16:
The aim of article 16 of Indian Constitution is to
provide equal opportunity to all citizens in employment offered by the state or
its agencies. This article has five clauses
i. Equality of opportunity – Article 16, Clause (1
) wherein it is stated
that equality of opportunity should be given to all citizens in matters
relating to employment or appointment to any office under the state.
ii. Prohibition of discrimination - Article 16,
Clause (2)
This clause prohibits discrimination on grounds
only of religion, race, caste, sex, descent, and place of birth, residence or
any of them in respect of any employment of the state.
iii. Residential requirements - Article 16, Clause
(3)
It allows the Parliament to make laws that require
residential (domicile) requirements in a State for public employment or appointment.
iv. Protective laws - Article 16, Clause (4)
This Clause allows the Parliament to make
protective laws for appointment of backward classes of citizens who are not adequately
represented in the services of the state.
v. Preference to certain persons in religious
institutions - Article 16, Clause (5)
This clause prescribes that the Parliament can make
laws which require only a person professing a particular religion to be appointed
in a body or institution of that religion. For example, a Hindu can only be
appointed as a priest in a Hindu temple.
d. Abolition of Untouchability - Article17
This is a unique article that has been incorporated
only in the Constitution of India. Article 17 declares that not only
Untouchability has been abolished but it also makes any practice and
propagation of Untouchability in any form punishable in accordance with the
law.
e. Abolition of Titles - Article18
The Clause of the Article prohibits the State from
conferring any title at all upon any person. However the State is not prevented
from awarding military distinctions, such as Mahavir Chakra, Param Vir Chakra
etc. for honoring men for their acts of valour or academic distinctions.
II. Right to Freedom (Articles 19 – 22)
a. Six fundamental freedoms - Article19
Article 19 (1), as amended by the Constitution
(Forty Fourth) Amendment Act, 1979, guarantees to all citizens the following
six freedoms:
i. Freedom of speech and expression
ii. Freedom of peaceful assembly
iii. Freedom of forming associations or unions
iv. Freedom of movement throughout the territory of
India
v. Freedom of residence and settlement in any part
of the territory of India, and
vi. Freedom of profession, occupation, trade or
business.
b. Protection in respect of conviction for offences
- Article20
This right guarantees protection in respect of
conviction for offences, to those accused of crimes. There are three clauses to
this article.
(i) Protection against ex – post, facto legislation
– It means that a
person cannot be punished under such a law, for his actions which took place
before the passage of the law.
(ii) Protection against double punishment – it says that no person shall be prosecuted for
the same offence more than once.
(iii) Protection against self incrimination – this clause states that no person accused of an
offence shall be compelled to be a witness against himself.
c. Protection of life and personal liberty -
Article21
Article 21 of the Indian Constitution recognizes
the right to life and personal liberty. It provides that “no person shall be
deprived of his life or personal liberty except according to procedure
established by law.”
d. Protection against arrest and detention in
certain cases. - Article22
The provisions of Article 22 are complimentary to
those of Article 21. Article 22 has two parts; the first part consisting of
clauses (1) and (2), deals with persons, who are arrested under ordinary criminal
law and the various rights, they are entitled to; and the second part
consisting of the remaining clauses (3) to (7), is concerned with persons, who
are detained under a law of preventive detention.
III. Right against Exploitation (Articles 23-24)
a. Prohibition of traffic in human beings and
forced labour - Article23
The article prohibits traffic in human beings and ‘begar’
and other similar forms of forced labour.
b. Prohibition of employment of children -
Article24
Article 24 of the constitution prohibits child
labour. Children below fourteen years of age cannot be employed in any factory
or mine or in any other hazardous employment.
IV. Right to Freedom of Religion (Articles 25 – 28)
a. Freedom of Conscience and Religion - Article25
Article25 reflects the spirit of secularism and
recognized freedom of religion to everyone in India.
b. Freedom to manage religious affairs - Article26
It recognizes the right of every religious order to
establish and maintain institutions for religious and charitable purposes and manage
its own affairs in matters of religion.
c. Freedom as to payment of taxes for promotion of
any particular religion - Article27
The state shall not compel any person to pay any
taxes for the promotion of maintenance of any particular religion or religious denomination.
d. Freedom to attend religious instruction in
education Institution - Article28
This article prohibits imposition of religious
beliefs by educational institutions on those who are attending them. Taken
together the four Articles (25 to 28) establish the secular character of
democracy.
V. Cultural and Educational Rights (Article 29)
a. Cultural right of the individual as well if
minorities - Article29
This Article states that every section of the
society has the right to conserve its distinct language, script or culture.
b. Right of minorities to establish and administer
Educational institution - Article30
The State cannot discriminate in granting aid to
any educational institution on the ground that it is under the management of a religious
or linguistic minority.
VI. Right to constitutional Remedies (Article 32)
Article 32 provides for the Constitutional
Remedies, under which, one can move the Supreme Court for the enforcement of
the Fundamental Rights and this provision itself is made one of the Fundamental
rights. This is something unique. Dr. Babasaheb Ambedkar considered it as the
very heart and soul of the constitution. The other rights that are guaranteed
in the Indian Constitution are as follows.
r. Right of property - Article31
t. Power of Parliament to modify the right -
Article33
u. Restriction on right while martial law is in
force- Article34
v. Parliament empowered to make to enforce certain
Fundamental Right - Article35
By the 44th Amendment Act, 1978, the right to
property was eliminated from the list of Fundamental Right. However though it
is not a fundamental right, it is still a constitution at right. It is also a human
right. This was recent ruling by the Supreme Court, while dismissing an appeal
filed by the Karnataka Financial Corporation Challenged a State High Court
order.
02. Classification of Fundamental Rights
Right enumerated in Arts 14-15 of part 3 have been
classified in several ways.
1. Topic-wise classification: The
Constitution itself classified the Fundamental Right under seven groups. These
are:
a) Right to equality-Article14-18
b) Right particular freedom-Article19-22
c) Right against exploition-Article23-24
d) Right to freedom of religion-Article25-28
e) Cultural and educational right-Article29-30
f) Right to property (Article31)
g) Right to constitutional remedies-Article32-35
Of these, the Right to property has been eliminated
by the 44th Constitution Amendment Act.
2. Right of citizens v. those of all persons: Some
of the Fundamental right can be enjoyed by citizens alone. Right enumerated in
Article15, 16, 19 and 30 belong to this category. Other fundamental rights are
granted to any person-citizen or foreigner.
3. Prohibition v. benefits: Some of the
Fundamental Rights are prohibition on the state. So, they are negatively
expressed. For instance, Article14 says, “The State shall not any person
equality before the law……” Other rights confer some benefits upon the individual.
That is why they are positively worded. The right to religious freedom (under
Article25), for instant, is a positive right.
4. Classification on the basis of extent of
limitation: Some of the Fundamental Right imposes limitations on the
Executive. Other curbs the legislative power. Fundamental Right under Article21
lay down limitation on the Executive. But they do not curtail legislative power.
On the other hand, right guaranteed by Arts.15, 17, 18, 20, and 24 impose
absolute limitation. Even the Legislature is powerless to regulate such right.
5. Rights against State action v. rights of
private individuals:
Most of the Fundamental Rights are guarantees
against State action. For instance, the right guaranteed by Article 19 and 21
are available against state action. However, part 3 of the Constitution does
include certain rights which can be invoked against the State as well as
against private individuals. Prohibition of untouchability (Article17) and
prohibition of traffic in human being (Article23) are examples of such right.
03. The National Human Rights Norms
1. The Constitution of India, 1950
Article 14
The State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India.
Article 19
1. All citizen shall have the right:-
a) to freedom of speech and expression;
b) to assemble peacefully and without arms;
c) to form associations or unions;
d) to move freely throughout the Territory of
India;
e) to reside and settle in any part of the
territory of India
f) ….
g) to practice any profession, or to carry on
any occupation, trade or business.
(2) Nothing in sub-clause(1) shall affect the
operation of any existing law, or prevent the State from making any law, in so
far as such a law imposes reasonable restrictions on the exercise of the right
conferred by the said subclause in the interest of sovereignty and integrity of
India, the security of the State, friendly relations with foreign States,
public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said
clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order, reasonable restrictions on
the exercise of the right conferred by the said sub-clause.
(4) …..
(5) ……
(6) ……
Article 20 (1) No person shall be convicted of any offence except
for violation of law in force at the time of commission of the act charged as
an offence, nor be subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the commission of the
offence.
(2) No person shall be prosecuted and
punished for the same offence more than once.
(3) No person accused of any offence shall be
compelled to be a witness against himself.
Article 21 No person shall be deprived of his life or personal
liberty, except according to procedure establishment by law.
Article 22 (1) No person who is arrested shall be detained in
custody without being informed, as soon as it may be, of the grounds for such
arrest nor shall be denied the right to consult, and to be defended by, a legal
practitioner of his choice.
(2) Every person who is arrested and detained
in custody shall be produced before the nearest magistrate within a period of
twenty four hours of such arrest excluding the time necessary for the journey
from the place of arrest to the court of the magistrate, and no such person
shall be detained in custody beyond the said period without the authority of a
magistrate.
(3) Nothing in clauses (1) and (2) shall
apply—
(a) to any person who for the time being is
an enemy alien; or
(b) to any person arrested or detained under
any law providing for preventive detention.
(4) ……..
(5) …….
(6) ……..
(7) ………
Article 32: Right to Constitutional Remedies
1. The right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights conferred by this
part is guaranteed.
2. The Supreme Court shall have power to
issue directions or orders or Writs, including Writs in the nature of habeas
corpus, mandamus, probation, quo warrant, and certiorari, whichever may be
appropriate for the enforcement of any of the rights conferred by this part.
3. Without prejudice to the powers conferred
on the Supreme Court by clauses (1) and (2), parliament may by law empower any
other court to exercise within the local limits of its jurisdiction all or any
of the powers exercisable by the Supreme Court under clause (2)
4. The right guaranteed by this article shall
not be suspended except as otherwise provided for by this Constitution.
Article 39 A The State shall secure that the operation of
the legal system promotes justice, on a basis of equal opportunity, and shall
in particular, provide free legal aid by suitable legislation or schemes or in
other way, to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic and other disabilities.
04. Role of Indian judiciary
Judiciary and Human Rights
Of the three organs of Government, the judiciary
has become a vanguard of human rights in India. It performs this function
mainly by innovative interpretation and application of the human rights
provisions of the Constitution. The Supreme Court of India has in the case Ajay
Hasia v. Khalid Mujib[i] declared
that it has a special responsibility, "to enlarge the range and meaning of
the fundamental rights and to advance the human rights jurisprudence."
As has already been pointed out the Supreme Court
of India and the State High Courts have broad powers under the Constitution to
enforce the fundamental rights and they have liberally interpreted these
powers. The major contributions of the judiciary to the human rights
jurisprudence have been two-fold: (a) the substantive expansion of the concept
of human rights under Article 21 of the Constitution, and
(b) the procedural innovation of Public Interest
Litigation.
05. Expansion of Article 21
Article 21 reads as follows, protection of life and
personal liberty -
"No person shall be deprived of his life or
personal liberty except according to the procedure established by law."
The expansion of Article 21 of the Constitution has taken place in two
respects:
a) The expression "the procedure established
by law" received a new interpretation not intended by the founding fathers
of the Constitution. In 1950, the very first year of the Constitution, the
Supreme Court in the case A.K. Gopalan v. State of Madras,[ii]
reflecting on the intentions of the Constitution-makers, held that
"procedure established by law" only meant that a procedure had to be
set by law enacted by a Legislature. This phrase was deliberately used in
Artcle 21 in preference to the American "Due Process" clause. Three
decades later, in Maneka Gandhi v. Union of India[iii]
case, the Supreme Court noted that "the Supreme Court rejected its earlier
interpretation and holds that the procedure contemplated under Article 21 is a
right, just and fair procedure, not an arbitrary or oppressive procedure.”[iv]
The procedure, which is reasonable and fair, must now be in conformity with the
test of article 14 - "in effect it has become a Due Process." There
is no doubt that the experience of National Emergency (1975-1977) prompted the
court to go all out for vindication of human rights.
Since then every case of infringement of rights by
the Legislature has undergone judicial scrutiny in terms of the new
interpretation laid down in the Maneka Gandhi's case[v].
Further, this approach has led to procedural due process innovations such as
the right to claim legal aid for the poor and the right to expeditious trial.
b) The judiciary interprets 'the right to life and
personal liberty" to encompass all basic conditions for a life with
dignity and liberty.
Such an approach allows it to come down heavily on
the system of administration of criminal justice and law enforcement. It also
brings into the fold of Article 21 all those directive principles of state
policy that are essential for a "life with dignity."
Thus, the judiciary has interpreted
"Life" to include the right to possession of each organ of one's body
and a prohibition of torture or inhuman or degrading treatment by Police. In
the Francis Coralie Mullin v. The Administrator, Union territory of Delhi[vi]
case , the Supreme Court held that "life" couldn't be restricted to
mere animal existence, or physical survival. The right to life means the right
to live with dignity and all that goes with it - the basic necessities of life
such as adequate nutrition, clothing, shelter and facilities for reading,
writing and expressing oneself.
Many of the Article 21 cases that came before the
High Courts and the Supreme Court often revealed "a shocking state of
affairs and portray a complete lack of concern for human values." The
Hussainara Khatoon v. Home Secretary, Bihar[vii]
case:
It has been held by the Supreme Court that though
speedy trial is not specifically enumerated as a fundamental right, it is
implicit in the broad sweep and content of Article 21, which deals with the
'right to life and liberty'. Justice Bhagwati held "if a person is
deprived of his liberty under a procedure which ij not 'reasonable', 'fair' or
'just', it would fall foul of Article 21. There can, therefore, be no doubt
that speedy trial, and by speedy trial we mean reasonably expeditious trial, is
an integral and essential part of the fundamental right to life and liberty
enshrined in Article 21. It was also held by the Supreme Court that 'detention
in jail for a period longer than what they would have been sentenced for, if
convicted, is illegal as being a violation of their fundamental right under
Article 21 of the Constitution.
Deoraj Khatri v. State of Bihar[viii]
case raised the case of Police brutality in which suspected criminals were
brutally blinded during Police investigation (Bhagalpur Blinding case). The Supreme
Court condemned it as a "barbaric act and a crime against mankind."
In Sheela Barse v. The State of Maharashtra[ix]
case, the Court was confronted with the custodial violence against women and it
laid down certain guidelines against torture and ill treatment of women in
Police custody and jails.
The Supreme Court has also read into Article 21 a
right to monetary compensation for deprivations of the right to life and
liberty suffered at the hands of the State. This was highlighted in the Rudal
Shah v. State of Bihar[x]
case. The emergence of the right to compensation has nullified one of the
reservations made by India in its instrument of accession to the human rights
Covenants, which stated that the Indian law did not recognize such a right in
the event of right deprivation.
The health problems of workers in the asbestos
industry led the Supreme Court in the case Paramanand Katra v. Union of lndia[xi]
to rule that the right to life and liberty under Article 21 also encompasses
the right of the workers to health arid medical aid. The right to life has been
held to include the right to receive instant medical aid in case of injury and
the right of a child to receive free education up to the age of fourteen.
Human rights, as the term
is most commonly used, are the rights that every human being is entitled to
enjoy and to have protected. The underlying idea of such rights - fundamental
principles that should be respected in the treatment of all men, women and
children - exists in some form in all cultures and societies. The contemporary
international statement of those rights is the Universal Declaration of Human
Rights.
The declaration covers two
broad sets of rights. One set is known as Civil and Political Rights. The other
set of rights is known as Economic, Social and Cultural Rights. In the words of
the declaration, these two sets of rights aim to give all people “freedom from
fear and want.” Both sets of rights must be protected as the “foundation of
freedom, justice and peace in the world.”
It is the responsibility of
governments to protect the human rights proclaimed by the declaration. Under
the provisions of Civil and Political Rights, all governments are to protect
the life, liberty and security of their citizens. They should guarantee that
no-one is enslaved and that no-one is subjected to arbitrary arrest and
detention or to torture. Everyone is entitled to a fair trial. The rights to
freedom of thought, conscience, religion, and to freedom of expression are to
be protected.
Under the heading of
Economic, Social and Cultural Rights, all governments are expected to try
progressively to improve the living conditions of their citizens. For example,
they should try to guarantee the right to food, clothing, housing and medical
care, the protection of the family and the right to social security, education
and employment. They are to promote these rights without discrimination of any
kind. The conventional wisdom had been that human rights are indivisible,
meaning that respect for civil and political rights could not be divorced from
the enjoyment of economic, social and cultural rights. Expressed another way,
authentic economic and social development could not exist without the political
freedom to participate in that process, including the freedom of dissent.
Here too, views diverged.
Some governments argued that strict measures curbing political freedoms were
necessary to get their economies going. Some argued that priorities must be
established: what was the point of talking about the establishment of courts and
reforming the prison system when the pressing issue was ending starvation and
seeking relief from crippling foreign debt?
Stemming in part from the
one-sided interpretation of the term human rights, the concept of development also came to be regarded as
a human aspiration separate from the achievement of human rights. This was
despite the fact that at least half the articles of the Universal Declaration
of Human Rights specify the Economic, Social and Cultural Rights, which
constitute the core of much of the world's development efforts.
The right to development
was elaborated in the 1986 General Assembly Declaration on the Right to
Development. It emphasizes the importance of economic, social and cultural
rights and establishes that achieving these is both an individual and a
collective responsibility. States have the primary responsibility for creating
national and international conditions favorable to the realization of the right
to development.
Although the rights to
life, liberty and security of person are universally recognized, an estimated
120 million people have been killed in this century. These deaths have occurred
both in peacetime and in armed conflict as a result of government intervention,
including tens of thousands sentenced to death or executed or who have
disappeared in over 60 countries in the last decade. The toll of economic
injustice and deprivation is no less horrendous: 14 million children die every
year before they reach the age of five, mainly due to malnutrition. Slavery is
banned in international law. Yet some 200 million people are held in conditions
amounting to slavery. This includes some 100 million children who exist by
performing back-breaking labor, prostitution and begging. It also includes
adult bonded laborers and women forced into marriage below the age of consent.
Torture is another evil
that has been internationally outlawed. But no amount of rhetoric can hide the
fact that the torture and ill-treatment of prisoners in prisons, police
stations or secret detention centers is reported from over 100 countries today.
That is more than half the countries of the world.
Despite guarantees of
freedom of expression and association, prisoners of conscience - people jailed
solely for the non-violent exercise of their human rights - are held in more
than 60 countries. That is one third of the member states of the United
Nations. Estimates of the numbers of political refugees run to 14-17 million,
with between 12 and 24 million internally displaced people. On the economic,
social and cultural side, the figures are profoundly disturbing. Worldwide,
nearly 140,000 children under five years old die from the combined effects of
hunger and disease every three days.
Over 100 million people
were affected by famine in the opening year of this decade. More than a quarter
of the world's people do not get enough food and nearly one billion go hungry.
More than one billion people still lack access to safe water and nearly 1.5
billion people worldwide lack access to health services.
06. Human Rights Through the Enhanced Concept of Article 21 of the Constitution of India
Article 21 of the
Constitution of India is the heart and soul of our Constitution. Its scope is
being widened in an ever expanding horizon, by various judicial pronouncements.
The major landmark decision
which led to the widening concept of Article 21 is Maneka Gandhi v. Union of
India[xii], wherein a broad
interpretation was adopted. In Maneka, a number of progressive propositions were
made to make Article 21 more meaningful. Articles 14, 19 and 21 were held to
have close connection. Judge Iyer remarked, "The spirit of man is at the
root of Article 21"…"personal liberty makes for the worth of the
human person" and "travel makes liberty worthwhile." According to
Judge Bhagwati, in Fransis Coralie[xiii], Maneka Gandhi v. Union of India[xiv], the right to life
includes the right to live with human dignity and all that goes along with it,
namely, the bare necessities of life such as, adequate nutrition, clothing and
shelter over the head and facilities for reading, writing and expressing
oneself in diverse forms, freely moving about and missing and coming along with
fellow human beings. Similarly, in P.Rathinam v. Union of India[xv], the Supreme Court
interpreted "life" as the right to live with human dignity and the
same does not connote continued drudgery. In Olga Tellis et. al. v. Bombay Municipal
Corporation et. al.[xvi]
the petitioners before the Apex Court lived on either side of the pavements
or in slum areas in the city of Bombay. The then Chief Minister of Maharashtra
had made an announcement that all pavement dwellers in the city of Bombay will
be evicted forcibly and deported to their respective places of origin or
removed to places outside the city of Bombay. These pavement and slum dwellers
approached the Supreme Court relying on their rights under Article 21 of the
Constitution of India which guarantees that no person shall be deprived of his
life except according to procedure established by law. The pavement/slum
dwellers did not contend that they have a right to live on the pavements, but
they contended that they have a right to life, a right which cannot be
exercised without the means of livelihood. The Supreme Court held that in view
of the fact that Article 39(a) and 41 of the Constitution of India require the
State to secure to the citizens an adequate means of life and the right work,
it would be sheer pedantry to exclude the right to livelihood from the content
of the right to livelihood. The State may not, by affirmative action, be
compellable to provide adequate means of livelihood or work to the citizens.
But, any person, who is deprived of his right to livelihood except according to
just and fair procedure established by law, can challenge the deprivation as
offending the right to life conferred by Article 21 of the Constitution of
India.
In Delhi Transport Corporation
v. D.T.C. Mazdoor Congress[xvii], wherein the services of
respondents- employees were long back regularized, however, the management
found that the respondents-employees had become inefficient in their work and
started inciting other staff members not to perform their duties.10 They were
served with termination notices under Regulation 9(b) of the DRTA (Conditions
of Appointment and Service) Regulations 1952, where it was provided that the
services of an employee of the Authority may be terminated without any notice
or pay in lieu of notice for any of the misconducts contained in the said
Regulation. The Delhi High Court struck down the provision contained in
Regulation and in Special Leave Petition filed at the behest of the management,
the Supreme Court affirmed the view taken by the High Court. The Supreme Court
held that there is a need to minimize the scope of the arbitrary use of power
in all walks of life. It is inadvisable to depend on the good sense of the
individuals, however high-placed they may be. It is all the more improper and
undesirable to expose the precious rights like the rights of life, liberty and
property to the vagaries of the individual’s whims and fancies. The Supreme
Court, therefore, held, "the right to life includes right to livelihood.
The right to livelihood therefore cannot hang on to the fancies of individuals
in authority. The employment is not a bounty for them nor can its survival be
at their mercy."
In Chameli Singh v. State of
UP[xviii], the Supreme Court held in
the aforesaid case that Shelter for a human being is not a mere protection of
his life and limb. It is home where he has opportunities to grow physically,
mentally, intellectually and spiritually. Right to shelter, therefore, includes
adequate living space, safe and decent structure, clean and decent
surroundings, sufficient light, pure air and water, electricity, sanitation and
other civil amenities like roads so as to have easy access to his daily avocation.
The right to shelter, therefore, does not mean a mere right to a roof over
one's head, but includes the right to all of the infrastructure necessary to
enable them to live and develop as a human being.
In Shantistar Builders v.
Narayan K. Totame[xix], the Supreme Court held
that basic needs of man have traditionally been accepted to be three: food,
clothing and shelter. The right to life is guaranteed in any civilized society.
That would take within its sweep the right to food, the right to clothing, the
right to a decent environment and a reasonable accommodation to live in. The
difference between the need of an animal and a human being for shelter has to
be kept in view. For the animal it is the bare protection of the body; for a
human being it has to be a suitable accommodation which would allow him to grow
in every aspect: physical, mental and intellectual. The Constitution aims at
ensuring the fuller development of every child. That would be possible only if
the child is in a proper home. It is not necessary that every citizen be
ensured of living in a well-built comfortable house, but a reasonable home,
particularly for people in India, can even be mud-built thatched house, or a
mud-built fire-proof accommodation.
In Francis Coralie Mullin v.
The Administrator, Union Territory of Delhi[xx], the subject matter under
consideration regarded the right of a detainee. The petitioner-detainee in that
case was a British national and was arrested and detained in the Central
Prison, Tihar. While in Jail, the detainee experienced a number of difficulties
in meeting with her lawyer, her relations, and she was allowed to meet her
young daughter only once a month. The restrictions on interviews with her
lawyer and daughter were imposed by the authorities by virtue of Clause
3(b)(i)(ii) of the Conditions of Detention, issued in exercise of the powers
conferred under Section 5 of the COFEPOSA Act. The detainee challenged the
constitutional validity of the aforesaid provision and prayed that the jail
authorities be directed to permit her to have interviews with her lawyer and
members of her family without complying with the restrictions laid down in the
aforesaid clause.
The Supreme Court, while
allowing the petition, observed that obviously the right to life enshrined in
Article 21 cannot be restricted to mere animal existence. It means something
much more than just physical survival. The right to life includes the right to
live with human dignity and all that goes along with it, viz. the bare
necessities of life such as adequate nutrition, clothing and shelter over the
head and facilities for reading, writing and expressing oneself in diverse
forms, freely moving about and mixing and mingling with fellow human beings. Of
course, the magnitude and the content of the components of this right would
depend upon the extent of the economic development of the country, but it must
in any view of the matter, include right to the basic necessities of life and
also the right to carry on such functions, and activities as constitute the
bare minimum expression of the human self.
In Consumer Education and
Research Centre & Ors. v. Union of India & Ors[xxi], the Supreme Court was
moved by human tragedy of modern industry; economic waste and health hazards on
account of occupational accidents and diseases.14 The petitioner in the case
was an accredited organization, had filed a petition seeking direction to the
respondent to take remedial measures for the protection of the health of the workers
engaged in mines and asbestos industries with adequate mechanisms for diagnosis
and control of the silent killer disease, asbestosis. The Supreme Court allowed
the petition and directed the industries concerned
(a) to maintain and keep
maintaining the health record of every worker up to a minimum period of forty
years;
(b) to administer the
Membrane Filter Test to detect asbestos fibers;
(c) to insure all of their
workers.
The Supreme Court, held
that the right to life with human dignity encompasses within its fold some of
the finer facets of human civilization which make life worth living. The
expanded connotation of life would mean the tradition and cultural heritage of
the persons concerned. The right to health for a worker is an integral facet of
meaningful right to life to have not only a meaningful existence, but also
robust health and vigor, without which a worker would lead a miserable life.
Lack of health denudes a worker’s livelihood. Economic necessity compels him to
work in an industry, exposed to health hazards due to indigence to bread-winning
for himself and his dependents should not be at the cost of health and vigor of
the workman. Provision for medical test and treatment invigorates the health of
the worker for higher production or efficient service. Continued treatment,
while in service or after retirement, is a moral, legal and constitutional duty
of the employer and the State. The Supreme Court stated that, therefore, it
must be held that the right to health and medical care is a fundamental right
under Article 21, read with Articles 39(c), 41 and 43 of the Constitution, and
makes the life of the workman meaningful and purposeful with dignity.
The Apex Court further laid
down that the right to life includes protection of the health and strength of
the worker. This is a minimum requirement to enable a person to live with human
dignity. The State, be it Union or State Government, or an industry, public or
private, is enjoined to take all such action which will promote health,
strength and vigor of the workman during the period of employment. This
includes periods of leisure and health, even after retirement as a basic
essential to live life with health and happiness.
In Parmanand Katara v. Union
of India and Ors[xxii], the petitioner, a human
rights activist, prayed for a direction to the Union of India that every
injured citizen brought for treatment in cases of accidents should be given
immediate medical aid to preserve life, and thereafter the procedural criminal
law should be allowed to operate in order to avoid negligent death. In the
event of a breach of such direction, apart from any action that may be taken
for negligence, appropriate compensation should also be made admissible. The
Supreme Court held that there can be no second opinion that preservation of
human life is of paramount importance. That is so because once a life is lost,
the status quo ante cannot be restored, as resurrection is beyond the capacity
of man. It makes no difference if the patient is an innocent person or a
criminal liable to punishment under the laws of the society. That is because it
is the obligation of those who are in charge of the health of the community to
preserve life so that the innocent may be protected and the guilty may be
punished. Social laws do not contemplate death by negligence to be tantamount
to legal punishment.
A doctor at the Government
hospital positioned to meet this State obligation is therefore duty bound to
extend medical assistance for preserving life. Every doctor, whether at a
government hospital or otherwise has the professional obligation to extend
services with due expertise for protecting life. No law or State action can
intervene to avoid/delay the discharge of the paramount obligation cast upon
members of the medical profession. The obligation being total, absolute and
paramount, laws of procedure, whether in statutes or otherwise which would
interfere with the discharge of this obligation cannot be sustained and must,
therefore, give away.
Right to Have a Proper Home
for Women and Children was upheld in Vikram Deo Singh Tomar v.
State of Bihar[xxiii].
The Supreme Court observed
that our Constitution lays special emphasis on the protection and wellbeing of
the weaker sections of society. It seeks to improve their economic and social
status on the basis of constitutional guarantees spelled out in its provisions.
It shows a particular regard for women and children, notwithstanding the
pervasive ethos of the doctrine of equality, it contemplates special provisions
being made for them by law.
Right to Gender Justice and
Prevention of Sexual Harassment is guaranteed in Apparel Export Promotion
Council v. A.K. Chopra[xxiv]. The respondent filed a
writ petition and the single judge allowed the writ petition, holding that the
respondent tried to molest and not that the respondent had in fact molested the
complainant. The Division Bench, in a Letters Patent Appeal filed by the
Council, upheld the decision of the single judge. In the SLP preferred by the
Council, the Supreme Court set aside the decisions of the High Court and
thereby affirmed the punishment of removal from service inflicted on the
respondent.
The Supreme Court held that
the action of the respondent projected unwelcome sexual advances, and such an
action would be squarely covered by the term "sexual harassment". The
Apex Court observed that there is no gain saying that each incident of sexual
harassment at the place of work results in violation of the fundamental right
to gender equality and the right to life and liberty – the two most precious
fundamental rights guaranteed by the Constitution of India. As early as 1993,
at the ILO Seminar held at Manila, it was recognized that sexual harassment of
women at the workplace was a form of "gender discrimination against
women". The Supreme Court opined that the contents of the fundamental
rights guaranteed in our Constitution are of sufficient amplitude to encompass
all facets of gender equality, including prevention of sexual harassment and
abuse, and the courts are under a constitutional obligation to protect and
preserve those fundamental rights. That sexual harassment of a female at the
place of work is incompatible with the dignity and honor of a female and needs
to be eliminated, and that there can be no compromise with such violations,
admits of no debate.
The Supreme Court, while
dealing with gender justice, in Bodhisattwa Gautam v. Subhra Chakraborty[xxv], directed the petitioner
to pay a monthly maintenance of 1000 Indian Rupees to the respondent, The
Supreme Court observed that unfortunately, a woman in our country belongs to a
class or group of society who are in a disadvantaged position on account of
several social barriers and impediments. They have, therefore, been the victim
of tyranny at the hands of men with whom they fortunately under the
Constitution enjoy equal status. Women also have the right to file and the
right to liberty; they also have the right to be respected and treated as equal
citizens. Their honor and dignity cannot be touched or violated. They also have
the right to lead an honorable and peaceful life. Women, thus, have many types
of personalities or roles combined. They are mother, daughter, sister and wife
and not play-things for center spreads in various magazines, periodicals or
newspapers. Nor can they be exploited for obscene purposes. They must have
liberty, freedom and, of course, independence to live the roles assigned to
them by Nature so that society may flourish as they alone have the talents and
capacity to shape the destiny and character of people in every part of the
world. The Supreme Court categorically held that "rape is thus not only a
crime against the person of a woman (victim) it is a crime against the entire
society."24 It is further held that it destroys the entire psychology of a
woman and pushes her into deep emotional crisis. It is only by her sheer willpower
that she rehabilitates herself in the society which, on coming to know of the
rape, looks down upon her in derision and contempt. Rape is, therefore, the
most hated crime. It is a crime against basic human rights and is also
violative of the victim's most cherished Fundamental Right, namely, the Right
to Life, contained in Article 21. To many feminists and psychiatrists, rape is
less a sexual offence than an act of aggression aimed at degrading and
humiliating women. The rape laws do not, unfortunately, take care of the social
aspect of the matter and are inept in many respects.
Right to Good Health was upheld
in Vincent Panikulangara v. Union of India and Ors[xxvi]
The Apex Court held that a
healthy body is the very foundation for all human activities. In a welfare
State, therefore, it is the obligation of the State to create and sustain
conditions congenial to good health. The Division Bench of the apex Court
referred to some decisions where it decided that it is the fundamental right of
everyone in this country, assured under the interpretation given to Article 21,
to live with human dignity, free from exploitation. This right derives from the
Directive Principles of State Policy, and particularly clauses (e) and (f) of
Articles 39, 41 and 42 of the Constitution. The Division Bench agreed with the
earlier pronouncement that such right at least, therefore, must include
protection of the health and strength of the workers, men, women and children.
It must also protect against abuse, and provide opportunities and facilities
for children to develop in a healthy manner and in conditions of freedom and
dignity, educational facilities, just and humane conditions of work and
maternity relief. These are the minimum requirements which must exist in order
to enable a person to live with human dignity, and no State has the right to
take any action which will deprive a person of the employment of these basic
essentials.
The Supreme Court also
observed that maintenance and improvement of public health have to rank high as
these are indispensable to the very physical existence of the community and on
the betterment of these depends the building of society, of which the
Constitution makers envisaged. Attending to public health, as opined by the
Supreme Court, therefore is of high priority – perhaps one of the top
priorities.
In Consumer Education &
Research Centre & Ors. v. Union of India & Ors[xxvii], the Supreme Court was
concerned by the occupational health hazards and disease of the workmen
employed in asbestos industries.26 The Supreme Court held that right to health,
medical aid to protect the health and vigor to a worker while in service or
post-retirement is a fundamental right under Article 21, read with Articles
39(e), 41,43,48-A of the Constitution of India, and all related articles and
fundamental human rights to make the life of the workman meaningful and
purposeful with dignity of person.
Right to
Ecology/Environmental Protection was upheld in F.B. Tarporawala & Ors.
v. Bayer India, Ltd. & Ors[xxviii]
The Supreme Court observed:
“In the appeals at hand, we
are confronted with a problem which has more serious consequences and which
touches the core of Article 21 of the Constitution inasmuch as the very lives
of the inhabitants living around the factories in question are in great
jeopardy, so much so that any probable accident in the factories may see
annihilations of a larger number of inhabitants. Maybe the accident does not
take place, as has been submitted by Shri Jaitley, appearing for the
respondents. There is, however, no ruling of the same altogether as Bhopal has
shown. No risk can, therefore, be taken.” [xxix]
Right to Life with Human
Dignity was upheld in Kartar Singh v. State of Punjab (1988) 1 SCC 690
In this case, the Supreme
Court observed:
“It is heart-rending to note
that day in and day out we come across with the news of blood-curdling
incidents of police brutality and atrocities, alleged to have been committed,
in utter disregard and in all breaches of humanitarian law and universal human
rights as well as in total negation of the constitutional guarantees and human
decency. We are undoubtedly committed to uphold human rights even as a part of
long standing heritage and as enshrined in our constitutional law. We feel that
this perspective needs to be kept in view by every law enforcement authority
because the recognition of the inherent dignity and of the equal and
inalienable rights of the citizens is the foundation of freedom, justice and
peace in the world.”
The Supreme Court further
observed:
“As we have repeatedly
pointed out supra, if it is shown to the court that a confession has been extorted by
illegal means, such as inducement, threat or promise as contemplated under
Section 24 of the Evidence Act the confession thus obtained from an accused
person would become irrelevant and cannot be used in a criminal proceeding as
against the maker. It may be recalled that Sections 330 and 331 of the Indian
Penal Code provide punishment to one who voluntarily causes hurt or grievous
hurt as the case may be to extort the confession or any information which may
lead to the detection of an offence or misconduct.”
Right to Basic Needs was upheld
in Unni Krishnan V. State of AP, (1993) 1 SCC 645
In this case, the Supreme
Court was, inter alia, dealing with
(1) Whether the constitution
of India guarantees a fundamental right to education to its citizens?
(2) Whether there is a
fundamental right to establish an educational institution under Article
19(1)(g).[xxx]
The Supreme Court held:
“The fundamental purpose of
education is the same at all times and in all places. It is to transfigure the
human personality into a pattern of perfection through a synthetic process of
the development of the body, the enrichment of the mind, the sublimation of the
motions and the illumination of the spirit. Education is a preparation for a
living, for life, here and hereafter.”
The Supreme Court also
observed:
“Victories are gained,
peace is preserved, progress is achieved, civilization is built up and history
is made not on the battlefields where ghastly murders are committed in the name
of patriotism, not in the Council Chambers, where insipid speeches are spun out
in the name of debate, not even in factories, where are manufactured novel
instruments to strangle life, but in educational institutions which are the
seed-beds of culture, where children in whose hands quiver the destinies of the
future, are trained. From their ranks will come out when they grow up,
statesmen and soldiers, patriots and philosophers, who will determine the
progress of the land.”
Right to Medical Aid was
upheld in Paschim Bangal Khet Mazdoor Samiti & Ors v. State of W.B.
& Anr. (1996) 4 SCC 37
In this case, Petitioner
no.2, Hakim Seikh, fell off a train as a result of which he suffered serious
head injuries and brain hemorrhage. He was taken to the Primary Health Center,
and for want of adequate facilities, the Medical Officer referred him to the
Diamond Harbour Sub-Divisional Hospital or any other State hospital for better
treatment. Hakim Seikh was taken to NRS Medical College Hospital, Calcutta, at
about 11:45 p.m. on July 8, 1992. The Emergency Medical Officer in the
hospital, after examining him and after taking two X-rays of his skull
recommended immediate admission for further treatment. But Hakim Seikh could
not be admitted in the hospital as no vacant bed was available in the Surgical
Emergency Ward, and the regular Surgey Ward was also full. He was then taken to
Calcutta Medical college Hospital at about 12:20 a.m. on July 9, 1992. He was
not admitted in that hospital and referred to a teaching hospital in the ENT
Neuro Surgury Department on the ground that the hospital had no NET Emergency
or Neuro Emergency Department. At about 2:00 p.m. on July 9, 1992 he was taken
to Calcutta National Medical College Hospital, but there also he was not
admitted on account of non-availability of bed. At about 8:00 p.m. on July 9,
1992 he was taken to the Bangur Institute of Neurology, but on seeing the CT
Scan (which was done at a private hospital on payment of Rs. 1310) it was found
that there was hemorrhage condition in the frontal region of the head and that
it was an emergency case which could not be handled in the Institute. At about
10:00 p.m. on July 9, 1992 he was taken to S.S.K.M. Hospital, but there also he
was not admitted on the ground that the hospital had no facility of
neuro-surgery.
Ultimately, Hakim Seikh was
admitted to Calcutta Medical Research Institute, a private hospital, where he
received treatment as an in-patient from July 9, 1992 to July 22, 1992. He
incurred an expenditure of approximately Rs.17,000 for his treatment. Feeling
aggrieved by the indifferent and callous attitude on the part of the medical
authorities at the various State-run hospitals in Calcutta in not providing
treatment for the serious injuries sustained by Hakim Seikh, the petition was
filed in the Court. The Supreme Court held:
“The Constitution envisages
the establishment of a welfare State at the federal level as well as at the
State level. In a welfare State the primary duty of the Government is to secure
the welfare of the people. Providing adequate medical facilities for the people
is an essential part of the obligations undertaken by the Government in a
welfare State. The Government discharges this obligation by running hospitals
and health centers, which provide medical care to the person seeking to avail
of those facilities. Article 21 imposes an obligation on the State to safeguard
the right to life of every person. Preservation of human life is thus of
paramount importance. The government hospitals run by the State and the medical
officers employed therein are duty-bound to extend medical assistance for
preserving human life. Failure on the part of government hospitals to provide
timely medical treatment to a person in need of such treatment results in
violation of his right to life guaranteed under Article 21. In the present
case, there was breach of the said right of Hakin Seikh guaranteed under
Article 21 when he was denied treatment at the various government hospitals
which were approached, even though his condition was very serious at that time
and he was in need of immediate medical attention. Since the said denial of the
right of Health Care guaranteed under Article 21 was by officers of the State,
in hospitals run by the State, the State cannot avoid its responsibility for
such denial of the constitutional right of Hakim Seikh. In respect of
deprivation of the constitutional rights guaranteed under Part III of the
Constitution the position is well settled that adequate compensation can be
awarded by the court for such violation by way of redress in proceeding under
Articles 32 and 226 of the Constitution. Hakim Seikh should, therefore, be suitably compensated for the breach of his
right guaranteed under Article 21 of the Constitution.”[xxxi]
Right to Health was upheld
in Consumer Education & Research Centre v. Union of India (2000) (2) SCC 599
In this case, the Supreme
Court was moved by the occupational accidents and diseases which remain one of
the most appalling human tragedies of modern industry and one of its most
serious forms of economic waste.
The Supreme Court observed,
"The Preamble and
Article 38 of the Constitution of India - the supreme law - envisions social
justice as its arch to ensure life to be meaningful and livable with human
dignity. Jurisprudence is an eye for providing insight into the environment of
which it is the expression. It relates the law to the spirit of the time and
makes it richer. Law is the ultimate aim of every civilized society, as a key
system in a given era, to meet the needs and demands of its time. Justice,
according to law, comprehends social urges and commitment.
The Constitution commands
justice, liberty, equality and fraternity as supreme values to usher in the
egalitarian social, economic and political democracy. Social justice, equality
and dignity of a person are cornerstones of social democracy.
The concept "social
justice," which the Constitution of India engrafted, consists of diverse
principles essential for the orderly growth and development of personality of
every citizen. "Social justice" is thus an integral part of justice
in the generic sense. Justice is the genus of which social justice is one of
its species. Social justice is a dynamic device to mitigate the sufferings of the
poor, weak, dalits, tribals and deprived sections of the society and to elevate
them to the level of equality to life, a life with dignity of person. Social
justice is not a simple or single idea of a society but is an essential part of
complex social change to relieve the poor etc. from handicaps, penury to ward
off distress and to make their life livable, for greater good of the society at
large.”[xxxii]
Right to Life and Scope of
Women's Rights was upheld in C. Masilamani Mudaliar & Ors. v. Idol of
Sri Swaminathaswami and Ors (1996)(8) SCC 525
Property is one of the
important endowments or natural assets to accord opportunity, a source to
develop personality, to be independent, and a right to equal status and dignity
of the person. Therefore, the State should create conditions and facilities
conducive for women to realize the right to economic development, including
social and cultural rights.[xxxiii]
Public Interest Litigation and Human Rights
Public Interest Litigation - an expansion of class
action under the common law - is a procedural innovation, which the Indian
judiciary has by now fairly perfected on the basis of a concept borrowed from
the United States. The rule of 'locus standi’ normally dictates that he who
approaches the court must prove his legal standing vis-a-vis the claim he seeks
to vindicate, usually in terms of a legal right or a legal obligation violated
by the defendant / respondent causing thereby some injury or damage to him for
which law provides a remedy. On the other hand, the public interest litigation
is based on the principle that:
We cannot write off the weaker victims of
injustices; the court's door when they knock shall open ... How can a bonded
labourer working in a stone quarry ever know of moving the Supreme Court?, asks
Justice Krishna lyer, a redoubtable public interest activist judge of the
Supreme Court of the seventies. He explains that public interest litigation,
chiefly, in the realm of public law assists 'all people concerned with
governmental lawlessness, negligence of the administration, environmental
pollution, public health, product safety, consumer protection and social
exploitation being served by professionals like lawyers and public interest
lobbies working for 'reform of decision-making processes in Government and
outside, affecting the public at large'. Public Interest Law offers new
challenges and opportunities for the committed lawyers and social groups to
serve the unequal segments of society better. This sensitive development is
part of democracy (of the disabled) and of the movement to vindicate social
justice through professions for the people. As a result, 'judges with a vision
have new universes to behold, and mansions of people's justice to build.'[xxxiv]
Justice Krishna lyer realises that the public
interest litigation is likely to be abused. Hence he advised that the court
should prima facie be satisfied that the information laid before it is
of such a nature that it calls for examination. By looking at the credentials
of the informant, the specific nature of the allegation, the gravity or
seriousness of the complaint, and any other relevant circumstances should also
be derived. It should also use its own wide investigative faculties as
appropriate for the situation.[xxxv]
Ever since the public interest litigations came to
be promoted by the Supreme Court, there has been an ongoing debate in the
country between its supporters and opponents. In the Sunil Batra v. Union
of India case[xxxvi],
the Supreme Court entertained a letter from Batra, a prisoner, complaining
about the treatment meted out to a fellow prisoner in a jail. The letter
activated the Court to deal with a wide variety of issues such as solitary
confinement in jails, conditions of under-trial prisoners, sexual exploitation,
sexual exploitation of blind girls in Schools, detention of mentally ill
persons, minimum wages, illegal sale of babies, bonded labour, environmental
protection, ill-treatment of freshers in Colleges, better roads, land
entitlement, conditions of children in children's homes, treatment of inmates
of carehomes, conditions of mental hospitals and deaths at alleged Police
encounters. As the court opened its doors wide shedding procedure formalism,
many of these issues repeatedly came before it as well as many others such as
torture of young prisoners, Police brutality like blinding of suspects during
investigation, custodial violence against women prisoners, deaths in Police
custody, handcuffing of accused persons facing trials and fetters on
incarcerated prisoners.
As the legal procedure became deformalised, the court
evolved new devices to assist it in dealing with public interest litigation,
such as special inquiry, fact-finding commission, scheme remedies and
post-decisional monitoring. A nation-wide Legal Aid Scheme came to be
established on the initiative of the Supreme Court.[xxxvii]
In 1982 the Supreme Court promised to examine a
range of relevant issues concerning the public interest litigation procedure.
An examination of these issue:; may be useful to streamline the public interest
litigation law and practice with a view to discouraging abuses. As Justice
Krishna Iyer remarks: it is "too late to burke PIL, but always welcome to
reaffirm, and refine, eliminate the entropy and abuse of the process."[xxxviii]
It is quite possible that the burden of a backlog of cases awaiting
adjudication is what worries the Court. But this is never a reason when 'we the
People of India demand social justice,’ reminds Justice Iyer.[xxxix]
The judiciary should never bite more than it can
chew, Justice Sujata Manohar strikes a note of caution in the context of
Article 21 of the Constitution. Article 21 embodies a judicially enforceable
right. Therefore, it should essentially be a right capable of being protected
by a judicial order. A right not capable of such enforcement, if spelled out
from Article 21. . . may result in the trivialization of court's pronouncements
and may encourage the habit of ignoring them . . . Every human right may not be
capable of judicial enforcement.[xl]
It points out the limits and limitations of judicial activism.
Taking into account the peculiar nature of public
interest litigation, the Supreme Court of India in a public interest
litigation, D.K. Basu v. State of West Bengal AIR 1997 SC 610, issued
guidelines to be followed in all cases for arrest and detention by the State interrogatory
agencies till legal provisions are made on that behalf as preventive measures.
The Guidelines are:
1. The Police personnel carrying out the arrest and
handling the interrogation of the arrestee should bear accurate, visible and
clear identification and name tags with their designations. The particulars of
such Police personnel who handle interrogation of the arrestee must be recorded
in a register.
2. The Police officer executing the arrest shall prepare a memo at the time of
arrest and shall be attested by at least one witness. This may be either a
member of the family of the arrested or a respectable person of the locality
from where the arrest is made. It shall be countersigned by the arrestee and
shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in
a Police Station or interrogation centre or other lockups, shall be entitled to
have one friend or relative or other person known to him or having interest in
his welfare being informed as soon as possible that he has been arrested and is
being detained in a particular place, unless the attesting witness of the memo
of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody
of an arrestee must be notified by the Police when the next friend or relative
of the arrestee lives outside the District or town through the Legal Aid
Organization in the District and the Police Station of the area concerned
telegraphically within 8-12 hours of the arrest.
5. The person arrested must be made aware of his
right to have someone informed of his arrest or detention as soon as he is put
under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend of
the person who has been informed of the arrest and the names and particulars of
the Police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of
his arrest and the major and minor injuries if any present on his body and must
be recorded at that time. The 'Inspection of memo' must be signed by both the
arrestee and the Police officer effecting the arrest and a copy shall be
provided to the arrestee.
8. The arrestee should be subjected to medical
examination every 48 hours during his detention in custody by a doctor from a
panel of approved doctors appointed by the Director, Health Services of the
State concerned or Union Territory. He should prepare such a panel for all
tehsils and Districts as well.
9. Copies of all the documents including the memo
of arrest referred to above should be sent to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer
during interrogation though the latter may not be present throughout
interrogation.
11. A Police control room should be provided at all
District and State headquarters so that information regarding the arrest and
the place of custody of the arrestee can be communicated by the Officer
carrying out the arrest within 12 hours of effecting the arrest and at the
Police control room it should be displayed on a conspicuous notice board.
The Supreme Court; also insists that the
requirements that flow from Articles 21 and 22 (1) of the Indian
Constitution are to be strictly followed. These would apply with equal force to
other Government agencies including the Directorate of Revenue Intelligence,
Directorate of Enforcement, Coast Guard, Central Reserve Police Force
(C.R.P.F), Border Security Force (B.S.F.) the Central Industrial Security Force
(C.I.S.F), the State Armed Police, Intelligence Agencies, such as the
Intelligence Bureau, RAW, Central Bureau of Investigation (C.B.I.) and C.I.D..
These guidelines are only a few out of a large number of judgments of the apex
court in which the court upheld the human rights of the oppressed individuals.
07. Human Rights Commissions
The main provisions of The Protection of Human
Rights Act, 1993 are the following.
Sec. 2(1)(d) “Human Rights” means the rights relating to
life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and enforceable by
Courts in India”
Sec. 12 Functions of the Commission
The Commission shall perform all or any of
the following functions, namely:
(a) inquire, suo motu or on a petition
presented to it by a victim or any person on his behalf, into complaint of –
(1) violation of human rights or abetment
thereof; or
(2) negligence in the prevention of such
violation, by a public servant;
(b) intervene in any proceeding involving any
allegation of violation of human rights pending before a court with the
approval of such court;
(c) visit, under intimation to the State
Government, any jail or any other institution under the control of the State
Government, where persons are detained or lodged for purposes of treatment,
reformation or protection to study the living conditions of the inmates and
make recommendations thereon;
(d) review the safeguards provided by or
under the Constitution or any law for the time being in force for the
protection of human rights and recommended measures for their effective
implementation;
(e) review the factors, including acts of
terrorism, that inhibit the enjoyment of Human Rights and recommended
appropriate remedial measures;
(f) study treaties and other international
instruments on human rights and make recommendations for their effective
implementation;
(g) undertake and promote research in the
field of human rights;
(h) spread human rights literacy among
various sections of society and promote awareness of the safeguards available
for the protection of these rights through publications, media, seminars, and
other available means;
(i) encourage the efforts of non-governmental
organizations and institutions working in the field of human rights;
(j) such other functions as it may consider
necessary for the promotion of human rights.
Sec 13. Powers relating to inquiries (1) The Commission shall, while inquiring
unto complaints under this Act, have all the powers of a civil court trying a
suit under the Code of Civil Procedure, 1908, and in respect of the following
matters, namely:
(a) summoning and enforcing the attendance of
witnesses and examining them on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy
thereof from any court or office;
(e) issuing commissions for the examination
of witnesses or document;
(f) any other matter which may be prescribed.
(2) The Commission shall have power to
require any person, subject to any privilege which may be claimed by that
person under any law for the time being in force, to furnish information on
such points or matters as, in the opinion of the Commission, may be useful for,
or relevant to, the subject matter of the inquire and any person so required
shall be deemed to be legally bound to furnish such information within the
meaning of section 176 and section 177 of the Indian Penal Code.
(3) The Commission or any other officer, not
below the rank of Gazetted Officer, specially authorized in this behalf by the
Commission may enter any building or place where the Commission has reason to
believe that any seize any such document or take extracts or copies therefrom,
subject to the provisions of section 100 of the Code of Criminal Procedure,
1973, in so far as it may be applicable.
(4) The Commission shall be deemed to be a
civil court and when any offence as is described in section 175, section 179,
section 180 or section 228 of the Indian Penal Code is committed in the view or
presence of the Commission, the Commission may after recording the facts
constituting the offence and the statement of the accused as provided for in
the Code of Criminal Procedure , 1973 forward the case to a Magistrate having
jurisdiction to try the same and the Magistrate to whom any such case is
forwarded shall proceed to hear the complaint against the accused, as if the
case has been forwarded to him under section 346 of the Code of Criminal
Procedure, (1973).
(5) Every proceeding before the Commission
shall be deemed to be a judicial proceeding within the meaning of sections 193
and 228, and, for the purposes of section 196, of the Indian Penal Code, and
the Commission shall be deemed to be a civil court for all the purposes of
section 195 and chapter XXVI of the Code of Criminal Procedure, (1973).
Sec. 14 Investigation (1) The Commission may, for the purposes of
conducting any investigation pertaining to the inquiry, utilize the services of
any officer or investigation agency of the Central Government or any State
Government with the concurrence of the Central Government or any State
Government, as the case may be.
(2) For the purpose of investigating into any
matter pertaining to the inquiry, any officer or agency whose services are
utilized under sub-section (1) may, subject to the direction and control of the
Commission:
(a) summon and enforce the attendance of any
person and examine him;
(b) require the discovery and production of
any document; and
(c) requisition any public record or copy
thereof from any office.
(3) The provisions of section 15 shall apply
in relation to any statement made by a person before any officer or agency
whose services are utilized under sub-section (1) as they apply in relation to
any statement made by a person in the course of giving evidence before the
Commission.
(4) The officer or agency whose services are
utilized under sub-section (1) shall investigate into any matter pertaining to
the inquiry and submit a report thereon to the Commission within such period as
may be specified by the Commission in this behalf.
(5) The Commission shall satisfy itself about
the correctness of the fact stated and the conclusion, any, arrived at in the
report submitted to it under subsection (4) and for this purpose the Commission
may make such inquiry (including the examination of the person or persons who
conducted or
assisted in the investigation) as it thinks
fit.
Sec- 15. Statement made by persons to the
Commission
No statement made by a person in the course
of giving evidence before the Commission shall subject him to, or be used
against him, in any civil or criminal proceedings, except a prosecution for
giving false evidence by such statement:
Provided that the Statement:
(a) Is made in reply to the question which he
is required by the Commission to answer; or
(b) Is relevant to the subject-matter of the
inquiry.
Sec- 16. Persons likely to be prejudicially
affected to be heard
If at any stage of the inquiry, the
Commission:—
(a) Consider it necessary to inquiry into the
conduct of any person; or
(b) Is of the opinion that the reputation of
any persons is likely to be prejudicially affected by the inquiry, It shall
give to that person a reasonable opportunity of being heard in the inquiry and
to produce evidence in his defence:
Provided that nothing in this section shall
apply where the credit of a witness is being impeached.
3. Code of Conduct for the Police in India
(Issued by the Ministry of Home Affairs and
communicated to the Chief Secretaries of all the States/Union Territories and
Heads of Central Police Organization on July 4, 1985.)
1. The police must bear faithful allegiance
to the Constitution of India and respect and uphold the rights of the citizens
as guaranteed by it.
2. The police should not question the
propriety or necessity of any law duly enacted. They should enforce the law
firmly and impartially without fear or favour, malice and vindictiveness.
3. The police should recognize and respect
the limitation of their powers and functions. They should not usurp or even
seem to usurp the functions of the judiciary and sit in judgement on cases to
avenge individuals and punish guilty.
4. In securing the observance of law or in
maintaining order, the police should as far as practicable, use the methods of
persuasion, advice and warning. When the application of force becomes
inevitable, only the irreducible minimum force required in the circumstances
should be used.
5. The prime duty of the police is to prevent
crime and disorder and the police must recognize that the test of their
efficiency is the absence of both, and not the visible evidence of police
action in dealing with them.
6. The police must recognize that they are
members of the public, with the only difference that in the interest of the
society and on its behalf they are employed to give full time attention to
duties which are normally incumbent on every citizen to perform.
7. The police should realize that the
efficient performance of their duties will be dependent on the extent of ready
cooperation that they receive from the public. This, in turn, will depend on
their ability to secure public approval of their conduct and action and to earn
and retain public respect and confidence.
8. The police should always keep the welfare
of the people in mind and be sympathetic and considerate towards them. They
should always be ready to offer individual service and friendship and render
necessary assistance to all without regard to their wealth and/or social
standing.
9. The police should always place duty before
self, should maintain calm in the face of danger, scorn or ridicule and should
be ready to sacrifice their lives in protecting those of others.
10. The police should always be courteous and
well mannered; they should be dependable and impartial; they should possess
dignity and courage; and should cultivate character and the trust of the
people.
11. Integrity of the highest order is the
fundamental basis of the prestige of the police. Recognizing this, the police
must keep their private lives scrupulously clean, develop self-restraint and be
truthful and honest in thought and deed, in both personal and official life, so
that the public may regard them as exemplary citizens.
12. The police should recognize that their
full utility to the State is best ensured only by maintaining a high standard
of discipline, faithful performance of duties in accordance with law implicit
obedience to the lawful directions of commanding ranks, absolute loyalty to the
force and by keeping themselves in the state of constant training and
preparedness.
13. As member of secular democratic state,
the police should strive continually to rise above personal prejudices and
promote harmony and the spirit of common brotherhood amongst all the people of
India, transcending religious, linguistic or sectional diversities and to
renounce practices derogatory to the dignity of women and disadvantaged
sections of society.
08. National Human Rights Commission -NHRC
The National Human Rights Commission was
established on 12th October, 1993 under the legislative mandate of the
Protection of Human Rights Act, 1993. This act also recommended for the setting
up of State Human Right Commission at State level and Human Right courts along
with NHRC.
Constitution of a National Human Rights Commission
The Commission consists of
Chairperson, who has been a Chief Justice of
India.;
One member who is or has been, a Judge of Supreme
Court;
One member who, is or has been, the Chief Justice
of High Court;
Two members being from among people having the
knowledge of human right and have practical experience
The chairperson of the National Commission for
minorities, the National Commission for Scheduled Castes and Scheduled Tribes
and the National Commission for Women shall be deemed to be members of the
commission for the discharge of functions specified in clauses (b) to (j) of
section 12
All these appointments are made by the President
after getting the recommendation from a committee which is headed by the Prime
Minister.
The terms and condition meant for all the members
1. A member who is appointed as chairman will cease
to be a member after the period of five years from the date of his appointment
or the attainment of the age of 75 years of age whichever is earlier.
2. A member after the completion of five years can
be reappointed again unless and until he is less than 75 years of age.
3. When a person is not reappointed as a member
he/she will not be eligible to be employed for any post under the central govt.
or the state govt.
Action against chairman/Member
1. Any member or chairman can be removed only after
the order of president in conditions such as misbehavior or incompetence, only
after reference is made to the Supreme Court. There are some further conditions
on which the chairman/ member can be removed.
if it is found that they are insolvent.
Engaged in an office as a paid employee
Not able to do his work because of infirmity of
mind or body.
He/she is a person of unsound mind.
If any one is convinced and sentenced for any
offence that involves moral turpitude.
Procedure adopted and regulated by the commission
a) The chairman shall decide the venue and date of
the meetings.
b) The commission is free to adopt its own
procedures.’
All the decisions of the commission in all events
will be authorized by the Secretary general or any other officer of the
chairperson
Functions of the commission
The commission will perform all or any of the
following functions under Sec. 12 of the act namely
Enquiry: the commission shall inquire, suo motu or
on a petition presented to it by a victim or any person on his behalf. The
commission may intervene in any proceeding involving any allegation of
violation of human rights pending before a court.
The Commission is allowed to visit any jail or
other institution under the control of the State Government, where persons are
detained or lodged for purposes of treatment, reformation or protection, for
the study of the living conditions of the inmates and make recommendations The
commission may review the safeguards provided by or under the Constitution or
any law for the time being in force for the protection of human rights and
recommend measures for their effective implementation
The Commission shall review the factors, including
acts of terrorism that inhibit the enjoyment of human rights and recommend
appropriate remedial measures
The Commission shall study treaties and other
international instruments on human rights and make recommendations for their
effective implementation
The Commission shall undertake and promote research
in the field of human rights
The Commission shall spread literacy among various
sections of society and promote awareness of the safeguards available for the
protection of these rights through publications, the media, seminars and other
available means
The Commission shall encourage the efforts of NGOs
and institutions working in the field of human rights
The commission may perform any such other functions
as it may consider necessary for the protection of human rights.
Powers of NHRC
(1) The Commission shall, while inquiring into
complaints under this Act, have all the powers of a civil court trying a suit
under the Code of Civil Procedure, 1908, and in particular in respect of the
following matters, namely :
(a) Summoning and enforcing the attendance of
witnesses and examining them on oath;
(b) Discovery and production of any document;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public record or copy
thereof from any court or office;
(e) Issuing commissions for the examination of
witnesses or documents;
(f) Any other matter which may be prescribed.
(2) The Commission shall have power to require any
person, subject to any privilege which may be claimed by that person under any
law for the time being in force, to furnish information on such points or
matters as, in the opinion of the Commission, may be useful for, or relevant
to, the subject matter of the inquiry and any person so required shall be
deemed to be legally bound to furnish such information within the meaning of
section 176 and section 177 of the Indian Penal Code.
(3) The Commission or any other officer, not below
the rank of a Gazetted Officer, specially authorised in this behalf by the
Commission may enter any building or place where the
Commission has reason to believe that any document
relating to the subject matter of the inquiry may be found, and may seize any
such document or take extracts or copies there from subject to the provisions
of section 100 of the Code of Criminal Procedure, 1973, in so far as it may be
applicable.
(4) The Commission shall be deemed to be a civil
court and when any offence as is described in section 175, section 178, section
179, section 180 or section 228 of the Indian Penal Code is committed in the
view or presence of the Commission, the Commission may, after recording the
facts constituting the offence and the statement of the accused as provided for
in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having
jurisdiction to try the same and the Magistrate to whom any such case is
forwarded shall proceed to hear the complaint against the accused as if the
case has been forwarded to him under section 346 of the Code of Criminal
Procedure, 1973.
(5) Every proceeding before the Commission shall be
deemed to be a judicial proceeding within the meaning of sections 193 and 228,
and for the purposes of section 196, of the Indian Penal Code, and the
Commission shall be deemed to be a civil court for all the purposes of section
195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(6) Where the Commission considers it necessary or
expedient so to do, it may, by order, transfer any complaint filed or pending
before it to the State Commission of the State from which the complaint arises,
for disposal in accordance with the provisions of this Act; Provided that no
such complaint shall be transferred unless the same is one respecting which the
State Commission has jurisdiction to entertain the same.
(7) Every complaint transferred under sub-section
(6) shall be dealt with and disposed of by the State Commission as if it were a
complaint initially filed before it.
Procedure for the enquiry
The Commission while inquiring into the complaints
of violations of human rights may–
(i) call for information or report from the Central
Government or any State Government or any other authority or organization
subordinate thereto within such time as may be specified by it:-
Provided that–
(a) if the information or report is not received
within the time stipulated by the Commission, it may proceed to inquire into
the complaint on its own;
(b) if, on receipt of information or report, the
Commission is satisfied either that no further inquiry is required or that the
required action has been initiated or taken by the concerned Government or
authority, it may not proceed with the complaint and inform the complainant
accordingly;
(ii) without prejudice to anything contained in
clause (i), if it considers necessary, having regard to the nature of the
complaint, initiate an inquiry.
Annual and special reports of the Commission
(1) The Commission shall submit an annual report to
the Central Government and to the State Government concerned and may at any
time submit special reports on any matter which, in its opinion, is of such
urgency or importance that it should not be deferred till submission of the
annual report.
(2) The Central Government and the State
Government, as the case may be, shall cause the annual and special reports of
the Commission to be laid before each House of Parliament or the State
Legislature respectively, as the case may be, along with a memorandum of action
taken or proposed to be taken on the recommendations of the Commission and the
reasons for nonacceptance of the recommendations, if any.
According to G..P.Joshi there has been a definite
increase in the number of complaints received by the Commission. From 6,987 in
1994-95, the number increased to 10,195 in 1995-96 and to 20,514 complaints in
1996-97. The Commission feels happy on this account, as it signifies, according
to the Commission, an increase in awareness of human rights and a
"reflection of the increasing confidence of people in the Commission.
The following data shows that there is great
disparity in the cases registered and the cases disposed by the commission
According to the database of The National Human Rights Institution
Forum Number
of cases registered by the Commission:
2000-2001: 71555
2001-2002: 69083
2002-2003: 68779
Number of cases disposed of by the Commission
2000-2001: 44383
2001-2002: 50108
2002-2003: 82231
Over the past fifteen years the Commission has
endeavored to give a positive meaning and a content to the objectives set out
in the Protection of Human Rights Act, 1993. It has moved vigorously and
effectively to use the opportunities provided to it by the Act to promote and
protect human rights in the country. However the commission faces some
difficulties. Some of them are there is insufficient workforce, the commission
doesn’t have full-fledged investigative machinery and there is heavy backlog of
cases.
09. Role of advocacy groups
Advocacy and Lobbying
Advocacy can be defined as the practical use of knowledge for
purposes of social changes. These changes can be directed to government
policies, laws, procedures, or sometimes to ourselves. Advocacy is therefore an
act of supporting an issue and persuading the decision makers on how to act in
order to support that issue. This definition tells, in fact, that advocacy is a
process, not an one-way activity. By this definition it is clear that advocacy
is an effective process aimed at achieving some specific results.
Advocacy is about motivating and mobilizing the community. It
starts with a small group of people who share concerns about a specific problem
and are willing to devote time, their expertise and resources available to
reach the desired change.
Advocacy can help your organization achieve its political goals
whatever they may be, including:
·
improving public
services such as transportation, information, etc.
·
education
·
accessibility
·
development of
community based services
·
public health
·
greater
accountability of elected representatives of local and national authorities,
·
decentralization
of government decision-making process and public services,
·
new laws that
better protect the civil rights associations, including the legal recognition
and other civil society organizations.
Advocacy means:
Drawing attention
to an important issue and direct decision-makers to a solution.
Influencing the decision-making
at all levels.
Mobilizing members
of the community, to include the wider community.
Developing
accountability and transparency of local governments and public
services/institutions.
NOTE: Advocating
produces results, whether you win, or lose. Wherever the change is needed,
advocacy has it’s role!
Advocacy can be divided in three types of activities, including:
1.
Representation: to
speak on their own or in other’s name in public
2.
Mobilization: to
encourage others to speak in public with you
3.
Empowerment: to
let others know they have the right to speak in public and have the right to be
heard.
Representation
Well-planned advocacy
is especially important when users will not be able to represent themselves or
when one person is in charge of representing the whole group of people. The
person chosen to do so must be capable of properly expressing interests of
those on whose behalf it advocates. In this regard it is important to ensure
that the basic principles of advocacy (ethics and legitimacy) are satisfied.
When representing
some group of people, it is important that users/beneficiaries are sharing
information with advocates. Advocates are presenting the information received,
and the advocates are contacting those persons who are in the focus of advocacy
efforts. Motto of the worldwide movement of people with disabilities “Nothing
about us without us” in this case must be fully implemented. The best
person to advocate for the rights of persons with disabilities is person with
disabilities themselves.
Mobilization
Mobilization in
fact means nothing more than the inclusion of others in your activities in a
way that they are encouraged to support your struggle, and then take actions
towards fulfillment of common goals. The mobilization is actually: expanding
the base of support, extending from those which are directly affected by the
problems to convincing others that this issue is important for them as well.
To mobilize others
is important for several reasons:
·
The number of
people who advocate is important, especially if all the people are advocating
for a common thing
·
Work with others
or other groups reduces the risk that the issue they advocate for is
controversial.
·
You can achieve
social change by raising public awareness which changes public opinion even if
the same change does not occur within the government and state system.
In this process it
is expected that users will share information with advocates. Advocates / will
mobilize other people and / or support organizations. Advocates are ones who
are mobilizing other individuals and/organizations to join the advocacy action.
Motto of the worldwide movement of people with disabilities “Nothing about us
without us” in this case would have to be fully implemented as wall, because
the best person to advocate for the rights of persons with disabilities is
person with disabilities.
Empowerment
Representation and
mobilization allow people to discover how they can be active as political
figures. Advocacy helps people to find simple ways that can influence the policy
and practice at the same time. Also, in the process advocates are collecting
information on current positions of the government, local government and other
stakeholders. This process is also very liberating because in some way it
relies on personal energy and the strength of each person who is involved in
the process. This particularly applies to members of groups that have
traditionally been marginalized, in our case, people with disabilities. Another
important result of this process is that by encouraging individuals to
participate and play an important role in the development of policy and
practice, allows for the sense of ownership over changes achieved. People who
are encouraged through this process, experience radical change about their
place in the community and recognize that they have rights that can be actively
used. Finally, these processes encourage people to challenge the traditional
roles of government and society, and to convince them that they have both
responsibility and rights in the society. All three activities can take place
at the same time, since in normal circumstances, these activities are often
intertwined.
Advocacy is a process designed to affect social change. The
process of change can sometimes be time consuming, requires sacrifices,
patience, involvement, and often requires giving one hundred percent, teamwork
both within your organization and team work with partner / coalition
organizations, communication and openness. Advocacy consists of a series of
activities undertaken with the aim of changing policies, practices and
attitudes. People who are engaged in advocacy and seeking to influence the
changes in society need to accept the risk that change they are advocating for
can come much later, or even that nothing has changed.
Lobbying
Advocacy often
involves specific lobbying of decision makers. Lobbying is a complex and
sensitive task, one must approach very well prepared.
In Anglo-Saxon
tradition, this word means the lobby of the House of Parliament. In that lobby,
the ones who wanted some issue to be resolved in their favor, were waiting for
members of Parliament and tried to make an impact on them (i.e. lobbying) to
decide in favour of the issue they were interested in.
Therefore,
lobbying is a term that includes activities of influencing the decision makers,
both political and all other decisions for which the community or individuals
are concerned about. Lobbying is a targeted activity and is mainly consisting
of a direct influence on decision-making persons.
Local policies are strategic documents by which the community
determines the direction and objectives for its work in an area of jurisdiction
in determined time frame, i.e. Strategy for development of local communities or
the strategy for social / health care, environmental protection, employment, …,
etc. Based on those documents we are creating the local action plans to achieve
the targeted changes.
The process of
inclusion of disability issues into the local policy requires active advocacy
and lobbying at all levels in all the steps, as shown in the diagram below:
10. NGOs
INTRODUCTION
Human Rights have to be claimed and exercised. This
is essential for man’s self-respectful life. But in some situations Human
Rights pertaining to liberty, security etc cannot be exercised. They are suppressed
and violated. Of course there are constitutional safeguards for the exercise
and protection of Human Rights. It is the constitutional duty of the government
to protect the Human Rights of people. There are several national and state
commissions for the purpose of protecting the Human Rights. But these commissions
have certain limitations in the protection of Human Rights. Non – Government
organizations (NGO’S) work for the welfare of people. These organizations also
fight for the protection of Human Rights. There are hundreds of NGO' s working
at the national and international level for the cause of the protection of Human
Rights. We are mainly concerned with the study of some prominent NGO' s in
India that work for the protection of Human Rights.
NON – GOVERNMENT ORGANIZATIONS
Non government Organizations (NGO's) are voluntary organizations.
They are formed by people who want to work for the welfare of people in general
and the less privilege and help less in particular. The Government, central or
state has its limitations in providing welfare measures like means of
livelihood, education and health services to people who need them. Lack of
funds, lack of manpower, public protest and pressure from political parties are
some of the problems faced by the government in providing welfare measures to
people.
On the other hand, NGO's have better network of
manpower. These organizations are financially supported by business
organizations. And, above all, NGO' s have personal contact at the grass root level.
Activists in these organizations have health relations or rapport with general
public. And, therefore, they can serve people better than government officials
in the fields like educations, protection of human rights, health, Child
welfare, environment a protection, rehabilitation of displaced people etc.
What NGO' s can do for people?
NGO' s can do the following activities for the
welfare of people –
1) NGO' s can run educational institutions for
education of the masses. They can also provide professional training to people
for producing experts and technicians by running training institutions.
2) The voluntary organizations fight for the
protection of human rights of people. They can file petitions in law courts for
safeguarding the fundamental rights of people.
3) NGO' s can undertake various activities for
protecting the physical environment. They can make people aware about environmental
issues and the importance of environmental protection.
4) These voluntary movements can concentrate on bringing
about rural development of the country. For this purpose they can plan and
undertake different activities that will lead to development in agricultures
and its allied fields.
5)NGO' s can provide medical assistance and health
services to the needy people.
6) Activists of NGO' s can arrange child welfare
activities especially for undernourished, physically handicapped, mentally
disabled and street children.
NGO' s help the government to monitor the welfare
activities undertaken by it. But when the government activities clash with the interests
of people, NGO' s oppose the government and pressurize it to act in the
interests of people. Thus, these organizations work for the cause of people,
help them to form favorable opinion about life, health, environmental, social
and political issues. Because NGO' s look towards everything from the point of
common people they are, described as the eyes and ears of people.
Problems faced by NGO' s.
While offering selfless services to people NGO’s
face the following problems.
NGOs find it very difficult in collecting the
realistic formation about the government plans policies and projects.
Though these voluntary organizations are fully
supported by Business organizations, financial institutions etc, the funds thus
raised are inadequate for managing diverse welfare activities by them.
Because of paucity of funds NGOs find difficulty in
getting the services of experts and technician.
Adequate infrastructures are not available to these
voluntarily organisation.
Because of the in evolvement of people of diverse
interests, NGOs find it rather difficult to define their objectives clearly.
It is not easy for these organizations to
coordinate various activities undertaken by them.
NGOs cannot withstand the political interference in
their day to day functioning.
In spite of all these difficulties NGOs are working
tirelessly for the cause of less privileged people. Here we are mainly
concerned with knowing and evaluating the role of NGOs in protecting Human rights
such as civil, political, economic, Socio-Cultural rights, Rights of
disadvantaged persons, Right to development and Environmental rights.
ROLE OF SOME PROMINENT NGO s IN INDIA IN THE
PROTECTION OF HUMAN RIGHTS
The Constitution of India has given some
fundamental rights to the people of India. These rights have to claimed and
enjoyed by everyone. Again these basic human rights have to be protected against
their violations. There are several national and state human rights commissions
to protect the constitutional rights of people.
The National Human Rights commission, The State
Human Rights commission, The National commission for Scheduled castes as well as
for scheduled Tribes and Commissions for women at National and State levels are
the main government mechanisms for protecting the fundamental rights of people.
We have already discussed the structure and functioning of these commissions in
the previous chapter.
In this chapter let us concentrate on the study of
the work of some prominent NGO's in India at the national level. The Peoples
Union for Civil Liberties, The Chipko movement and The Narmada Bachao Andolan
are the most active NGOs in India. Their role in the protection of human rights
is as follows.
People’s Union for Civil Liberties (PUCL)
This is a Delhi – based NGO. At the outset it is
necessary to know the situation in which the PUCL was founded in 1976 by Jayaprakash
Narayan, the great Gandhian leader. In the beginning he formed a national group
named, Citizens for Democracy (CFD) in 1974 along with similar groups in Delhi,
Madras, Mumbai and Calcutta for opposing the autocratic functioning of the
government of India. Later on, emergency was declared by the government.
During the emergency, fundamental rights and civil
liberties of people were suppressed Again the National Security Act was passed
in 1980. This is a repressive law which introduced preventive Detention of
people under the pretext of national security. In a response to this act, the
PUCL was revitalized in 1980. It insisted that the civil liberties of people
must be protected at any cost. It also pledged to work against any type of discrimination
that encroaches civil liberties of the weaker sections of society like
children, women etc.
The PUCL organizes `The JP Memorial Lecture’ on
23rd March every year. This is the day on which the emergency in India was lifted
in 1977. The PUCL also presents `Journalism For Human Rights’ Award’ The award
was instituted in 1980 to create awareness about civil liberties and human
rights in the minds of journalists and common men.
Though the PUCL is a Delhi-based NGO, it works on
the National level. It has branches in different cities in India. It publishes
a monthly bulletin both in English and Hindi. It is known as the PUCL bulletin
and enlightens people about the legal ways and means of claiming, exercising
and also fighting for protecting their human rights.
People have Right to live. This also includes the
Right to food and livelihood. On the basis of this, in 2001, the PUCL filed
Public Interest Litigation (PIL) in the Supreme Court. The six states in India such
as Orissa, Maharashtra, Gujarat, Rajasthan, Himachal Pradesh, and Chattisgarh
were hit by acute drought. People in these states were starving. Still the
state governments were not providing food to people. These drought hit people
were not in a position to purchase food grains. On the basis of the PIL filed
by the PUCL, the Supreme Court directed the respective state government to
provide food to the drought affected people free of cost. Thus, the Right to
life of people was protected. The Court also directed the state governments to
devise a scheme so that no person will suffer from hunger.
The PUCL is working for highlighting the instances
of the violation of human rights. It also sees that the violations pertaining
to human rights get redressed, The activities of the PUCL make it clear that weak
democracy can be made strong only by protecting the civil liberties of people.
People’s Union for Democratic Rights (PUDR)
There is another Delhi – based N GO. It is known as
people’s Union for Democratic Rights (PUDR). This organization positively
states that the underprivileged people have Right to organize themselves and to
agitate or revolt for bringing about total change in the socio economic and
political system if it does not ensure solutions to their problems. This
organization also filed a case in the Supreme Court for protecting the economic
rights of Asiad workers. They were paid less than minimum wages. The court
declared that it amounts to forced labour and it also violates the article 23
of the constitution of India. And thus the justice was done to the Asiad
workers. Thus both the PUCL and PUDR are fighting together for the protection
of Human Rights of people. The former concentrates on the protection of civil
liberties while the latter fights for giving socioeconomic justice to people.
11. Role of Some Renowned International NGOs in the Protection of Human Rights
There are hundreds of NGOs working at the
international level for the protection of Human Rights. The most renounced
among them are The International League for Human Rights, Amnesty International
and Human Rights Watch. These NGOs are very active in the protection of Human
rights. Let us discuss their role in relation to human rights.
The International League for Human Rights (ILHR)
This NGO is the oldest organization working in the
field of human rights. It was established in 1942 in U.S.A. for defending the
rights of people. It interacts with the government and investigates the cases
of the violation of human rights. The league aims at establishing a just
society in which people can claim and enjoy their fundamental rights. The ILHR
was given consultative status in 1947. As a result of this it got the authority
to testify the abuses of human rights before the United Nations Economic and
Social Council.
The Amnesty International (AI)
This is another world famous NGO working for the
protection of human rights. It was established in 1961. The AI mainly deals
with the five areas viz women’s Rights, Children Rights ending Torture and
Execution, Rights of Refugees and Rights of prisoners of conscience. At present
the AI is concentrating mainly on controlling the violence against women and
checking the world arms trade. Its main branches are in London and New York.
Human Rights Watch (HRW)
This NGO was established in New York in 1987. It
serves as an umbrella organization for U.S. Helsinki watch committee, America Watch,
Asia Watch, Middle East Watch and Africa Watch. It publishes Human Rights
publication Catalogue, quarterly newsletters and Human Rights world watch
reports. It evaluates the Human Rights practices of governments in the light of
standards recognized by international laws and agreements including the Universal
Declaration of Human Rights and the Helsinki Accord. Further it also evaluates
the performance of the U.S. government in promoting human rights at the
international level. Of course the organization mainly concentrates on
evaluating the treatment of the U.S. government with refugees and visitors to
U.S.
12. Mass media
Media and Human Rights
The Information Media is an important arm of any
modern democratic polity through which the people exercise their freedom of information.
The freedom of information, the democratic right to know, is crucial in making
all other human rights effective and providing an important safeguard for the enjoyment
of all those rights. Traditionally, the vehicle of public information was the
Press. Today it is called the media, which include the press, ihe radio, the
television and the internet. The "Fourth Estate" plays a crucial role
in a large democracy like India where about 1500 different types of newspapers
are circulated.
The period of National Emergency saw, for the first
time, the gagging of the free press. Many then depended on the BBC for
'impartial' news about India. It is no wonder that the freedom of the Press or
media became a watchword after emergency.
Disposing of a case o: contempt of court against
the editors of two newspapers, the Supreme Court remarked:
It is the duty of a true and responsible journalist
to provide the people with accurate and impartial presentation of news and his
views after dispassionate evaluation of facts and information received by him
and to be published as a news item. The editor of a newspaper or a journal, the
court said, has a greater responsibility to guard against untruthful news and
its publication. If the newspaper publishes what is improper, mischievously
false or illegal and abuses its liberty, it must be punished by a court of law.
While a free and healthy press is indispensable to the functioning of a true
democracy, the court said, "the freedom of the press is subject to
reasonable restraints."[xli]
Since the 1970's the media in India have played a
central role in sensitizing people with information about governance,
development, science and technology, foreign relations and so on. However, of
late it has also come in for criticism, as highlighted by the above Supreme
Court decision. There has been a decline in
journalistic credibility, as noted by the Chairman of the Press Council of India
himself in a seminar.[xlii]
Senior journalists feel that the media shies away from important 'people's
issues' like tribal issues, that it is losing social content and becoming a consumer
product with a manager overshadowing the editor.[xliii]
While the media is "a vital leverage to keep the rulers in check," it
has failed "to educate people to assert their claim to the right to
information," observes another senior journalist.[xliv]
The press also has come in for rough treatment by terrorists, insurgents, and
some individual politicians. The Chairman of the Press Council condemned
increasing commercialism and corrupt practices emphasizing the need to arrest
them.[xlv]
The media also has a tendency to launch "trials by the media," even
sentencing by the media, even while a court proceeding is underway.
Considering the totality of the impact of the media
during the past two decades, despite the above pitfalls, one must recognize
that the contribution of the media in revealing and highlighting human right causes
has been most impressive. A colonial law relating to official secrecy, the
Official Secrets Act. 1923, however, remains an impediment in the effective
exercise of the freedom of information.
[i]
AIR I981 SC 487 at 493
[ii]
AIR 1950 SC 27
[iii]
1978 AIR 597
[iv]
Ibid
[v]
Ibid
[vi]
AIR 1981 SC 746
[vii]
AIR 1979 SC 1360 at 1369
[viii]
AIR 1981 SC 928
[ix]
AIR 1983 SC 1514
[x]
AIR 1983 SC 1986
[xi]
1989 AIR 2039
[xii]
AIR 1978 SC 597
[xv]
1994 AIR 1844
[xix]
Shantistar
Builders V. Narayanan Khimalal Totame (1990) 1 SCC 520
[xxxiv]
V.R. Krishna Iyer,
"Judiciary, Law, Justice and Litigation," The Hindustan Times (12
February 1995): 13
[xxxv]
Ibid
[xxxvi]
Sunil Batra v. Union
of India AIR 1978 SC 1487
[xxxvii]
Rajeev Dhavan. "Law as
Struggle: Public Interest Law in India," Indian Journal of International
Law (Vol. 36, 1994): 307-317
[xxxviii]
V.R. Krishna Iyer,
"Judiciary, Law, Justice and Litigation,"The Hindustan Times (12
February 1995): 13
[xxxix]
Justice Allad Kuppuswami,
"Justice Delayed is Justice Denied," The Hindu, (22nd
January 1997): 10
[xl]
Justice Sujata V. Manohar,
"Judiciary and Human Rights," Indian Journal of International Law
(No. 2, Vol. 36, 1996): 45
[xli]
"Don't Misuse Press
Freedom," The Hindustan Times (20 September 1990): 12. The case about a
false report condemnatory of the judiciary, involved the editors of the Tribune
and the Punjab Kesari, two newspapers
[xlii]
Media Full of Trivia, says
Press Council Meet, The Indian Express (17 November 1996): 7
[xliii]
Inderjeet, Member, Press
Council of India, The Indian Express (17 November 1996): 8
[xliv]
V.N. Narayan, Editor, The
Hindustan Times in a Seminar on Right to Information, New Delhi. The Hindu
(November 2, 1996): 3
[xlv]
Justice P.B. Sawant, "The
Shadow and the Guardian Angel," The Hindustan Times (December 1, 1996): 11
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