HUMAN RIGHTS
No |
Particulars |
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UNIT - I |
1 |
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2 |
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3 |
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4 |
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UNIT - II |
5 |
Universal protection of Human Rights - United Nations and Human Rights |
6 |
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7 |
International Covenant Economic social and cultural rights 1966 |
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UNIT - III |
8 |
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9 |
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10 |
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11 |
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UNIT - IV |
12 |
Protection of Human Rights at national level human rights and the constitution |
13 |
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UNIT - V |
14 |
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15 |
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16 |
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17 |
Tribal |
18 |
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19 |
National and international legal development |
UNIT - I
International law was solely concerned with states in the classical period which was influenced by the theory of state sovereignty. The view was based on the thesis that only states create rules of International law, and as such, rules are valid for them alone. Thus, no legal significance from the International law point of view. Individuals were related to one state through the bond of citizenship or nationality, and this st6ood in relation to other states in the role of aliens. If san injury was caused to an individual it was the state alone which owed the responsibility under international was to another state.
Even in those cases where individuals enjoyed certain right and duties in conformity with, or according to international law such as the rights enjoyed while on foreign territory by Heads of state, diplomatic envoys and even private citizens those individuals have not thereby become subject of international law. Rights in question were enjoyed by the individuals concerned not as rights in International law but as rights derived from national law. Thus, as for both substance and procedure, states were the only subjects of International law; other entities including individuals were mere objects.
The transformation of the position of the individuals after the Second World War has been one of the most remarkable developments in contemporary International law. The charter of United Nations by using the words "Peoples of the united nations" in the preamble has given a place of importance to individuals. However this alone did not change the position of individuals in the domain of international law. They are regarded as the real subjects and beneficiaries of international law by virtue of having rights and duties flowing directly from international law.
While a few rules are directly concerned with regulating the position and activities of individuals, a few others, indirectly affect them. That is, rules may also be applicable to certain inter-relationship of individuals themselves, where such inter-relationship involves matters of international concern. However as long as the international community is composed of states, it is only through the exercise of their will alone rights and duties are conferred to them. They may agree to confer particular rights on individuals which will be enforceable under international law independently of municipal law.
Human rights are one of such rights which have been conferred to individuals by the states in the modern international law. Human rights are derived from the principle of Natural law. They are neither derived from the social order nor conferred upon the individual by the society. They reside inherently in the individual human beings independent of and even prior to his participation in the societ6y. Consequently, they are the result of recognition by the state but they are logically independent of the legal system for their existence. Their origin may be sought in the natural law and not in the positive law, they are based on their intrinsic justification and not on their enactment or recognition by certain individuals, they do not depend on any formulation or accepted authority. To conclude in may be said that a positive legal system which does not recognize human rights in not law.
Human rights are the rights that a human being has in virtue of whatever characteristics he has that are both specifically and universally human. It the only relevant condition fro enjoying certain rights is being human, and if this property does not admit of degrees, there cannot be differences of degree in the extent to which the right in question are held; this is all human beings have them to the same degree.
Meaning of Human Rights
Human beings are rational beings. They by virtue of their being human possess certain basic and inalienable rights which are commonly known as human right. Since these rights belong to them because of their very existence, they become operative with their birth. Human rights, being the birth right are therefore, inherent in all the individuals irrespective of their caste, creed, religion, sex and nationality.
These rights are essential for all the individuals as they are consonant with their freedom and dignity and are conducive to physical, moral, social and spiritual welfare. They are also necessary as they create an environment in which people can develop their full potential and lead productive and creative lives in accordance with their needs and provide suitable conditions for the material and moral uplift of the people. Because of their immense significance to human beings human rights are also sometimes referred to as fundamental rights, basic rights, inherent rights, natural rights and birth rights.
Presently the vast majority of legal scholars and philosophers agree that every human being is entitled to some basic rights. Thus there is universal acceptance of human rights in principle in domestic and international plane. Human rights are a generic tern and it embraces civil rights, civil liberties and social, economic and cultural rights. It sis therefore difficult to give a precise definition of the term human rights. However, it can be said that the right that all people have by virtue of their being human or human rights. These are the rights which no one can be deprived without a grave affront to justice. It is so because they may affect the human dignity. Thus the idea of human rights is bound up with the idea of human dignity.
The world conference on human rights held in 1993 in Vienna stated in the declaration that all human right derive form the dignity and worth inherent in the human person and that the human person is the central subject of human rights and fundamental freedoms.
Human rights are therefore those rights which belong to an individual as a consequence of being human. They are based on elementary human needs as imperatives. Some of these human needs are elemental for sheer physical survival and health. Others are elemental for psychic survival and health. Thus, human rights can be perceived and enumerated. These rights are associated with the traditional concept of natural law.
Human right being essential for all round development of the personality of the individuals in the society be necessarily protected and be made available to all the individuals. They must be preserved; cherished and defended dif peace and prosperity are to be achieved. Human rights are the very essence of a meaningful life, and to maintain human dignity is the ultimate purpose of the government. The need for the protection has arisen because of inevitable increase in the control over men's action by the governments which by no means can be regarded as desirable.
There are several states where fundamental standards of human behavior are not observed. The consciousness on the part of the human beings as to their rights has also necessitated the protection by the states. It has been been realized that the functions of all the laws whether they are the rules of municipal law or that of international law whether they are the rules of municipal law or that of international law should be to protect them in the interest of the humanity.
Presently there is a widespread acceptance of the importance of human rights in the international structure because it has legal, moral and political bearing. Human rights are legal because it involves the implementation of rights land obligations mentioned in international treaties. It is moral because human rights are a value based system to preserve human dignity and it is political in the larger sense of the word. They also operate to limit the power of governments over individuals. However one will not hesitate to admit that there is a confusion prevailing as to its precise nature and scope and the mode of international law as to the protection of these rights.
Classification of Human Rights
Human rights are indivisible and interdependent and therefore precisely there cannot be different kinds of human rights. Human rights are classified in two categories.
Civil rights or liberties are referred to those rights which are related to the protection of the right to life and personal liberty. They are essential for a person so that he may live a dignified life. Such rights include right to life, liberty and security of persons, right to privacy home and correspondence, right to own property freedom from torture, inhuman and degrading treatment freedom of thought, conscience and religion and freedom of movement.
Political rights may be referred to those rights which allow a person to participate in the government of a state. Thus right to vote, right to be elected at genuine periodic elections, right to take part in the conduct of public affairs directly or through chosen representative are instances of political rights.
The nature of civil and political rights may be different but they are inter-related and interwoven, and therefore it does not appear logical to differentiate them. This reason alone led to the formulation of the formulation of one covenant covering both-civil and political right into one covenant i.e. international covenant on civil and political rights.
These rights are the rights of the first generation which derive primarily from the seventeenth and eighteenth century reformist theories which are associated with the English American and French revolutions. Civil and political rights are the rights which may be termed as negative rights in the sense that a government is required to abstain from doing those activities that would violate them. Specifically, these rights protect citizens form acts of murder, torture, cruel and unusual punishment, ex post facto legislation the denial of habeas corpus and imprisonment without due legal process.
Economic, social and cultural rights are related to the guarantee of minimum necessities of the life to human beings. In the absence of these rights the existence of human beings is likely to be endangered. Right to adequate food, clothing, housing and adequate standard of living and freedom from hunger, right to work, right to social security, right to physical and mental health and right to education are included in this category of rights. These rights are included din the international covenant on economic, social and cultural rights.
This right requires active intervention not abstentions on the part of states. These rights are therefore counterpart to the first generation of civil and political rights, with human rights conceived more in positive than negative terms. The enjoyment of these rights requires a major commitment of resources, and therefore their realization cannot be immediate as in the case of civil and political rights.
Economic, social and cultural rights are based fundamentally on the concept of social equality. Realization of these rights, which is generally called the rights of second generation, has been somewhat slow in coming. They are clear only as general principles and not as specific rules. However they have begun to come of age.
In addition to the above rights there is another kind of right which may be enjoyed by individuals collectively such as right to development, right to a protected environment, right to self-determination or the physical protection of the group as such through the prohibition of genocide. Such rights are referred to collective rights. Although it is difficult to maintain difference between individual's rights and collective rights, it may be stated that while individual's rights are available to individuals of a group collective rights are not available to individuals alone. They may be enjoyed by a group of individuals collectively.
The conception of human rights is not the very modern concept, though it appears to be so. The roots of human rights are found every deep in the eternity in the ancient and ancient most cultures which have been rooted out by passage of time and rule of human atrocities or barbarianism of certain tribes.
The origin and development of human rights has been on two bases, the first is the national and second is the international.
On the national base, the conception of Human Rights got its breed to originate and develop in the form of religion in different countries and in different times. The conception may be felt to originate in the ideas of mercy, kindness and pity on human beings in various scriptures. Vedas are the most ancient or the first, religious book of mankind, revealed in Aaryaavarta the Great land of Aryans. The following preaching in the Yajurveda throws a prism of light on friendly dealing and behavior with all creatures of the world what to say of only human beings.
Drite drinha maa mitrasya maa chakshusha servaani bhootaani sameekshantaam. Mitrasyaham chakshusha asrvaani bhootani sameekshe mitrasys chakshushaa sameekshaa mahe
It means oh Lord Let my eye view be firm in order that all creatures may look at me by friendly sight. In the same way I also may see all creatures with friendly sight and all of us cr3eatures may see each other in friendly view. In most references, leaving lust, anger ect, mental derelictions and narrowness, to deal with others with truth and liberality has been preached in the Vedas Vasudhaiva Kutumbakam the whole world is certainly one family has been preached and pressed in Vedic literature.
Babylonian king Hammurabi had issued a set of laws to his people which is called Hammurabi's codes, established fair wages, offered protection of property and required charges to be proved at trial. The codes, while often harsh in their punishments provided standards by which Babylonians could order their lives and treat one another.
The Human rights are also rooted in ancient thought and in the philosophical concepts of natural law and natural rights. A few Greek and Roman philosophers recognized the idea of natural rights. Plato was one of the earliest writers to advocate a universal standard of ethical conduct. The roman jurist Ulpian stated that according to law of nature, all men are equal, and by the same law all are born free. This meant that foreigners are required to be dealt in the same way as one deals with one's compatriots. It also implied conducting of wars in a civilized fashion.
The Republic proposed the idea of universal truths that all must be recognized. People were to work for the common good. Aristotle wrote in polities that justice, virtue, and rights change in accordance with different kinds of constitutions and circumstances. Cicero a Roman statesman laid down the foundations of natural law and human right in his work the laws Cicero believed that there should be universal human rights laws that would transcend customary and civil laws. Sophocles was one of the first to promote the idea of freedom of expression against the state.
Stoics employed the ethical concept of nature and which was to serve as a order of law that corresponded to nature and which was to serve as a standard for the laws of civil society and government. Later, Christianity, especially St. Thomas Aquinas rooted this natural law in a divine law which was revealed to man in part discoverable by man through his God-given right reason. The city state of Greece gave equal freedom of speech, equality before law, right to vote, right to be elected to public office, right to trade and the right of access to justice to their citizens.
Charters of liberty:-
Charters of Liberty are steps towards the realization and implementation of Human Rights. Magna Carta of 1215, petition of Right of 1628; Habeas Corpus Act of 1679, Bill of Rights in England may be taken.
Magna Carta :-
Magna Carta was imposed upon king john by the pretates, Earls and Barons, after having defeat at the hands of the king of France. This declaration of freedom dealt with the rights of deferent contemporary sections of the society for instance, that the churches will be independent of the control of the king, London and other cities will be free to utilize or practice their freedom and customs. Unjust taxes will not be imposed upon traders or businessmen and so on.
A very important article of this declaration was Article 39 which provided that no free person shall be made a prisoner, evicted by unjust means exiled from the country, or will not be killed or murdered or executed in any way unless such action was permissible by some decisions of the House of Lords or the law of the land and neither anyone shall be deprived of justice.
Petition of Rights:-
Petition of Rights was allowed by Charles First in 1628. This was a parliamentary declaration in which freedoms of people were dealt with. For example that no body shall be indebted not taxed without the permission of the parliament, nobody shall be imprisoned in an arbitrary way. No martial law commission shall be used in the times of peace. If somebody has been sent to jail, then either he will be released on bail or be acquitted and the judges will not pay any heed on the orders of sentence.
Habeas Corpus Act:-
Habeas Corpus Act was officially titled as an Act for the Better securing the liberty of the subject for prevention of imprisonment beyond the seas. This Act was enacted by Charles Second in 1679. This Act was mainly concerned with the prisoners who were imprisoned in some criminal offence, that the validity of his sentence be expeditiously heard. By this provision protection of the freedoms of the people of the country was enforced.
Bill of Right: -
Bill of Rights was officially titled as an Act for Declaring the Rights and Liberties of the subjects and for settling the succession of the Crown, 1989. This Act was enacted at the time when William of Orange and Mary Stuart were ascended the throne of England. The object of this Act was to substitute the Habeas Corpus Act 1579 so that it would give benefit to those persons also who were imprisoned on some other charges than the criminal charges. The limitation under which the king would take decision was specified. Through this bill the power of the king to suspend a law or the execution of law by a legal authority was condemned and it was provided that the ding cannot do so without the approval of the parliament.
On International base
In the flashback if event at the universal plane, in the treaty of Augusburg of 1555, there is a provision for religion was talked of. In the treaty of West Phalia of 1648, there is a provision for religious freedom of the Christian Faith. In the treaty of Oliva of 1669 religious freedom of the ceded territories was created. In the treaty of Kutchuk of 1774 a provision was made for the freedom of and the protection of the Christian minorities of turkey. In the congress of Vienna of 1815 protection was afforded to the rights of the polish minorities.
In the Act of the Federal constitution of Germany the civil and religious rights of the Jews is dealt with. In the treaty of Paris after the Crimean war protection was provided to the population of walchia, maldavia and servia. In the Geneva Convention of 1864 relief to the sick and wounded prisoners of war was provided. In the Treaty of Berlin of 1878 religious liberty and legal equality have been talked of. In the General Act of Berlin Conference on Central Africa, of 1855 measures for restraint of slave's trade have been provided. In the Brussels conference of 1889 ways and means have been suggested to check the trade of slaves.
In the Treaty of Paris of 1898 provisions were made for the protection of certain territories which were left in favor of America. In the Hague conventions of 1899 and 1907 provisions were made for the protection of wounded soldiers, prisoners and the civil population. In the second Berne Conference of 1906 a restriction had been made of the night work of women workers in the industrial employments. In the German peace Treaty of Versailles singed in 19129 protections was afforded to minorities.
In the minorities Treaties of 1919 and 1920 protection of the rights of minorities has been dealt with. In the peace Treaty of St. Germain Nuilly and Trianon of 1919 also the protection of rights of minorities has been guaranteed. The peace Treaty of Lausanne of 1923 also there were the provisions for the protection of the protection of the rights of minorities,. In the Upper sillecian Treaty of 1922 provisions were made not only for the protection of the rights of minorities but also that any one of the state parties might make a complaint to the international Organization namely the League of Nations.
The special consequential benefit of the League of Nations, the Anti-Slavery Convention of 1922 may be taken. The member state of this convention bound themselves to end this custom of slavery in their states or territories under their control. In the same way a child welfare committee prepared the Geneva Declaration on the Rights of the Child, and inspired many nations to accept it. However, the League of Nations rejected this Declaration in 1924. In other spheres of the international law also the universal interest for individual rights was visible. It has contributed a great part of its functions to the scope of Human Rights.
As a matter of fact the Human Rights were universalized after the end of the Second World War of 1939 in 1942. President Roosevelt of U.S.A in his massage on 6th January 1941 declared four fundamental freedoms of human beings.
These are
(1) Freedom of speech and expression,
(2) Freedom of every person to worship God in his own way,
(3) Freedom from want and
(4) Freedom from fear. Even though the list of rights described in this
declaration is not very elaborate or extensive or exhaustive.
At the end of the first word war of 1919, some attempts were made on liberal level favoring the common man. The treaty of Versailles tended to promote and universalize human rights though it resulted in no success. The institute of international law, though a private organization, was formed, which initiated the measures to study and formulate the principles of human rights and their formation as code of universal application, which was merely a vision of the expectations and not a reality. The pronouncements of this institute had no validity except the prestige of its members. However, the chief aim of the institute was to extend to the entire world international recognition of the rights of man.
Views of the jurists on the question as to basis of human rights are divergent which have led to the emerged of deferent theories. Prominent amongst them are as follows:-
1) Natural Law Theory :-
Ancient thinkers and philosopher's were of the view that human rights have been derived from the principle of eternal law as revealed in natural law which is also something called Divine law or Law of reason unwritten law, Universal or Common law, eternal law or moral law.
The source of natural law is either God or reason. The Greeks regarded natural law as being closely related both to justice and ethics. It was therefore conceived by the Greeks as a body of imperative rules imposed upon mankind by nature, the personified universe. Natural law notion was reflected in 6the writings of Aristotle, Cicero, Gaius and other philosophers. Aristotle, the Greek philosopher stated that it is natural justice that binds us all even those who have no association or covenant with each other. Stoics popularized the maxim live according to nature.
Cicero was of the view that true law is reason in agreement with nature which is universally applicable, everlasting, and unchanging. According to him natural law is universal in nature and therefore its application is not limited to any class or category of persons. Later, Christian Fathers extended the authority of natural law by asserting to it a divine origin. They have cited St.Paul as approving their doctrine. Aquinas, the Christian theologian, advocated that natural law is derived from God. According to him eternal law governs the world through the will of God and according to his wisdom. Thomasius also stated that natural law is a divine law, written in the hearts of all men.
Natural law theory was practiced by Romans in the formation of legal rules for the administration of justice. The Roman view was that natural law is the immutable and universal part of civil law. Roman classical writers used the Stoic theory as an ornament for their texts. Thus the origins of the concept of human rights are usually agreed to be found in the Greco-Roman natural law doctrines of Stoicisn. The theory of natural law has therefore a religious base.
The theory of natural rights clearly derives from natural law. Natural right is an interest recognized and protect6ed by an rule of natural justice. It was a body of principles superior to positive law. They arose from the very nature of man. The concept of natural rights found place in many documents of human rights such as the Bill of Rights of 1689, Declaration of Rights (Virginia) of 1779 and the Declaration of Independence (U.S.A) of 1776. The Virginian Declaration of Rights stated that, all men are by nature equally free and independent and have certain inherent natural rights of which when they enter a society, they cannot by any compact derive or divest their posterity.
Natural law as the basis of human right has been criticized on a number of grounds.
Firstly all rights are legal rights and are the creations of law and since natural rights are the creations of natural law; they are a metaphor.
Secondly, natural law theory regards that what is natural is innate, universal or immutable. But there have been conflicting interpretations as to what is natural? Thus, the meaning of the law of nature itself is not precisely clear. Different jurists have given different meaning to it such as reason, religious or moral and therefore it is such a hazy concept that, if sought to be enforce, it can result in confusion. However it has to be admitted that the law of nat6ure has greatly influenced the growth of human rights law. There cannot be any doubt if it is said that human right law developed in the initial state on the basis that its rules derive from the law of nature.
2) Social Utility Theory:-
Another theory which has been advocated as to the basis of human rights is the social utility. The theory maintains that what conforms to the utility of an individual represents the total sum of his happiness and that what conforms to the utility of a community represents the total sum of happiness of the individuals composing that community. Under the social utility theory of human rights, those rights are considered genuine human rights which tend to increase the total happiness of human beings. Thus human rights are those which constitute permanent and general conditions of human happiness.
The above theory does not appear to be sound as it generates the belief that the happiness of the individuals composing a community is necessarily the interest of that community, but it is not true. It is a delusion to think that there is a necessary identity between the individual happiness and the happiness of the community. Moreover, social utility may even bean outright conflict at times, with human rights.
It is to be noted that the basis of human rights lies in the fact that an individual is an human being. Well being and freedom in all aspects are important aspects of the individual's existence because he is a rational being. These aspects are essential to an individual to live his life in a dignified manner and also because they bring happiness to him. Consequently happiness and freedom constitute the foundation for human rights
UNIT - II
1) United Nations and Hunan Rights:
At the San Francisco Conference it was expressed by several delegates that the United Nations should establish an International Bill of Rights. Although that could not be done, it was well realized by the members that it should be the obligation of the international community to cooperate in eradicating the scourge of war, and they were therefore determined that the promotion and respect for human rights which at present constitute so important and so conspicuous be an integrated part of the U.N. Charter.
The result was that the Charter contained a number of prov9isions for the promotion of human rights and fundamental freedoms in the Preamble and in Articles 1, 13(1) (b), 55, 56, 62(2), 68 and 76(c) which are as follows:
1) The Preamble of the Charter in its first substantive paragraph laid down that "we the peoples of the United Nations determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of the human person in the equal rights of men and women and of nations large and small"
2) Para 3 of Article 1 of the Charter provided that the achievement of international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion shall be one of the purposes of the United Nations. The above provision shows that the desirability of promoting and encouraging respect for human rights and fundamental freedoms without distinction as to race, sex language or religion was generally recognized.
3) The General Assembly and the Economic and social Council were given the task for the realization of the promotion of human rights and fundamental freedoms. By the terms of Article 13, the General Assembly was empowered to initiate studies and make recommendations for the purpose of assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
4) Article 55 provided that the United Nations shall promote,
(a) Higher standards of living, full employment and conditions of economic and social progress and
development
(b) Solutions of international economic social, health and related problems, and international cultural and
educational cooperation and
(c) Universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. It is to be noted that human rights are limited to those subjects with are mentioned in paragraph and the subjects in Paragraphs (a) and (b) are not rights at all but only policies that should be promoted,.
5) Article 56 provided that the members of the United Nations pledged themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.
6) Article 62 of the Charter authorized the Economic and Social Council to make recommendations for the purposes of promoting respect for and observance of human rights and fundamental freedoms for all.
7) Article 68 directed the Council to set up commissions in economic and social fields and for the promotion of human rights and such other commissions as may be required for the performance of its functions. The commission on human Rights and the commission on the status of Women are the subsidiary bodies of the Economic and Social Council.
8) Para (c) of Article 76 stipulated that one of the basic objectives of the trusteeship system is to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion, and to encourage recognition of the interdependence of the peoples of the world.
In addition to the above provisions, the charter has referred repeatedly the concept of fundamental human rights, the dignity and worth of the human person, equal rights, justice, social progress and fundamental freedoms. The Charter devoted three Chapters to self-determination of peoples.
The above provisions of the charter make it clear that the state's treatment of its own citizens is a matter of international concern. Although there was no universal agreement as to the precise extent of the human right and fundamental freedoms guaranteed to all by the Charter, there is at present no dissent from the view that they have become one of he basic principles of international law. The above provisions also imply that two major values of international law an old one, respect for state sovereignty, and a more recent one, respect for human rights have been integrated.
The Charter by incorporating the provisions relating to promotion of human rights and fundamental freedoms opened a new dimension towards the progressive development of International law. Individuals became a focus of international concern by acquiring their own rights. All member states were required to promote observance of fundamental human rights without distinction as to race, sex, language or religion.
The Charter universalized and internationalized the concept of human rights which hitherto was adopted in some countries since last 200 years. It was universalized in the sense that there was a general acceptance of rights by national governments and was internationalized because the treatment of citizens in one country became the business of other countries as well. It was the first international document which recognized the respect for human rights and fundamental freedoms as a principle of International Law.
Promotion and protection of Human Rights by the United Nations
Promotion and encouragement of respect for and observance of human rights fundamental freedoms is one of the purposes of the United Nations. The Charter of United Nations mentions the term, promotion of human rights seven times, but makes no reference to protection of human rights.
The term promotion of human rights may mean setting of international standard of human rights, education and dissemination. The prime responsibility for the promotion of human rights under the U.N. Charter rests in the General Assembly, in the Economic and Social Council and its subsidiary body Human Rights Council. The General Assembly by adopting treaties has set standards and socializes into those standards. Holding conferences and seminars to spread the world about human rights values found in these international documents are also included in the promotion of human rights.
The United Nations in the past has been able to promote and protect human rights by a number of ways which are as follows;
1) Human Rights Consciousness: - The first and the most important role which the United Nations has played is that it has made the people and the states conscious about the human rights and fundamental freedoms. It has set a pace in establishing minimum standards of acceptable behavior by states. The proclamation of the Universal Declaration of Human Rights containing the universal code of human rights may by regarded as the first step towards the promotion and protection of human rights.
2) Codification of the Law of Human Rights: - The United Nations has codified the different rights and freedoms by making treaties for all sections of the people such as women, child, migrant workers, refugees and stateless persons. In addition to the above, the prohibition on the commission of inhuman acts such as genocide, apartheid, racial discrimination and torture have been brought within the international rule of law.
3) Monitoring of Human Rights: - Treaty bodies, Working Groups of the commission on Human Rights have procedure and mechanism to monitor compliance with conventions and investigate allegations of human rights abuse. A number of expert committees have been established under particular treaties. They are not subsidiary organs of the United Nations, but are autonomous. The Committees are termed U.N. Treaty Organs. In the past U.N. Human Rights monitors have been sent to many counties including EI Slavador and Cambodia. Human Rights monitors have also been deployed by the General Assemble as part of peace-keeping operations in Haiti, Rwanda, Guatemala and the former Yugoslavia.
4) Procedure for Individuals Complaints: - A number of human rights treaties permit individuals to make petition before the appropriate international bodies. For instance, the Optional Protocol to the International Covenant on Civil and Political Rights, the International convention on the Elimination of All Forms of Racial Discrimination Against Women and the Convention on the Protection of the Rights of All migrant Workers and members of Their Families have permitted individuals to make petitions against their states the have accepted relevant international legal procedures. Also under procedures established by the Human Rights Council, sub-commission on the Promotion and protection of Human Rights and their Working Groups, hear numerous complaints annually submitted by individuals as well as by non-governmental organizations (NGOs). The human Rights "Council is authorized to discuss human rights situations anywhere in the World and examine information from individuals NGOs and other sources.
5) Compilation of Information's on the Violations of Human Rights:- The original mandate of the Commission on Human Rights to examine situations where massive violations of rights appear to be taking place has been complemented by a new function i.e. compiling information's on the incidence of certain kinds of violations or violation in a specific country. This task is performed by special Representative or Working Groups. They gather facts, keep contacts with local groups and governmen5 authorities, conduct on-site visits when Governments permit, and make recommendations on how human right institutions might be strengthened.
6) Examination of Human Rights Situations:- The Commission on Human Rights may ask the Secretary-General to intervene or send an expert to examine a human rights situation in any state with a view to prevent flagrant violations. Such tasks may be performed by the Secretary-General himself in the exercise of his good offices and may establish the U.N.s legitimate concern and curb abuses. The Secretary-General or his special representative and the High Commissioner for Human Rights, confidentially arise human rights concerns with member States including items such as the release of prisoners, commutation of death sentences and other issues.
7) Coordination of Human Rights Activities: - the post of High Commissioner for Human Right was created in 1993 with the intention of strengthening the coordination and impact of UN Human Right activities. He is charge with promoting and protecting the effective enjoyment by all human rights and maintaining a permanent dialogue with the member states.
8) By Providing Advisory Services:- The centre for Human Right provides advisory services to Governments seeking to improve their human rights performance. Assistance may be given to draft a constitution to improve electoral laws, establish or upgrade human rights institutions, prepare new criminal codes, or overhaul the judiciary.
Commission on Human Rights
The Economic and Social Council (ECOSOC) a principal organ of the United Nations was most directly concerned with the question of human rights. The Council under Article 68 of the U.N Charter was empowered to set up commissions for the promotion of human rights and such other commissions as may be required for the performance of its functions. Accordingly, it appointed a commission on Human rights which was approved by the General Assembly on February 12, 1946. Functions and composit6ion of the commission were outlined in a resolution adopted by the Economic and Social Council. The commission was created as a subsidiary body of the Council.
The Commission was composed of 18 members who were elected by ECOSOC. Each State member selected its won representatives. In 1962 the membership was increased to 21 and in 1966 to 32. Since 1991 the Commission has 53 member governments. The commission meets annually in Geneva for six weeks beginning in March. The Commission may also meet between annual sessions to deal with urgent human rights situations. Such special sessions have taken place five times by the end of 2004. The Commission reports to ECOSOC which, in turn reports to the General Assembly.
Human Rights Council
The World leaders Heads of State and Government met at United Nations Headquarters in New York from September 14 to 16, 2005 and adopted a document at the end of the Summit known as 2005 World summit Outcome. The Outcome document contains a number of global issues on which the leaders agreed to take action. They agreed to create a U.N. Human Rights Council which shall be responsible for the protection of all human rights and fundamental freedoms for all without distinction of any kind and in a fair and equal manner.
In order to implement the above provision of the Outcome document, the General Assembly on March 15, 2006 adopted a resolution to establish the Human Rights Conical, bases in Geneva in replacement of the Commission on Human Rights. The Council shall be a subsidiary organ of the General Assembly.
Universal Periodic Review (UPR)
On June 18, 2007 the council adopted a resolution by consensus for a package reforms which included the establishment of UPR. The UPR is a unique process which involves a review of the human rights records of all 192 members of the United Nations once in every four years. Thus, 48 States will be reviewed each year. The review will provide an opportunity for all states to declare what actions they have taken to improve the human rights situations in their countries to overcome the challenges to the enjoyment of human rights.
The ultimate goal of UPR is the improvement of the human rights situation in every country with significant consequences for people around the World. To achieve this UPR involves assessing State's human rights records and addressing human rights violations wherever they occurred. It also aims to provide technical assistance to states and enhance their capacity to deal effectively with human rights challenges.
The reviews are conducted by the UPR Working Group consisting of 47 members of the Council. However any member of the United Nations can take part in the discussion with there viewed states. Each state review is assisted by groups of three states, known as troikas who serve as rapporteurs. The selection of troikas for each state review is dome through a drawing of lots prior for each Working Group session.
Following the state review by the Working Group a report is prepared by troikas with the involvement of the state under review and assistance form the OHCHR. This report referred to as the outcome report provides a summary of the actual discussion. It therefore consists of the questions, Comments and recommendations made by states to the country under review.
Commission on the Status of Woman
The commission on the status of women a functional commission of the Economic and social council, was established in 1946. The membership of the commission was originally fifteen and expanded to 21 in 1961. Since 1991 the commission has 45 members. The commission meets once in two years in Vienna to examine women's progress towards equality throughout the world.
Its function is primarily to prepare recommendations and to make reports to the Economic and social Council on the promotion of women's rights in political, economic social and educational fields. It makes recommendations to council on problems requiring attention in the field of women's rights. It also prepares drafts and develops proposals to give effect to these recommendations aimed at improving the status of women in law and practice.
The commission recognized that women would not make progress in any field unless they shared decision making power with men. In 1949, the commission initiated work on the convention on the political Rights of Women. The convention the first legal instrument dealing exclusively with women's rights was adopted by the General Assemble in 1952.
The Commission was also helpful in adopting the convention on the Elimination of the All Forms of Discr5imination Against Women by the General Assembly in 1979. The commission also made efforts to prepare a convention on the Nationality of a married Woman which was adopted by the General Assembly in 1957. in addition to above, the commission has focused on many topics relating to women such as role of women in development, family planning, education and economic rights of women.
U.N High Commissioner for Human Rights.
A proposal for the creation if the post of the United Nations High Commissioner for Human Rights was approved by the Economic and Social Council in 1967. However it was not established by the General Assembly at that time. The assembly on December 20 1993 created the post of the U.N High commissioner for Human Right's in order to promote and protect the effective enjoyment by all of all civil, political, economic, social and cultural rights.
The High commissioner is appointed by the secretary-General. However, his name is approved by the General Assembly. He shall be a person of high moral standing and personal integrity possessing expertise in the human rights field and an understanding of diverse cultures. Due regard is paid to geographical rotation. The High commissioner shall serve a four year term at the rank of the under-Secretary-General. The office of the High commissioner shall be located at Geneva with a branch office in New York.
Human Rights Hot Line
The United Nations High Commission for Human Rights in 1994 established a Human Rights Hot line, a 24 hour facsimile line that will allow the office of the High Commissioner for Human Right in Geneva to monitor and react rapidly to human rights emergencies. The Hot Line is available to victims of human rights violations, their relatives and non-governmental organizations. The Hot Line is valuable to those wishing to establish urgent, potentially life-saving contact with the special procedures branch of the office of the High commissioner for human Rights.
Office of the United Nations High Commissioner for Human Rights (OHCHR)
In connection with the programme for reform of the United Nations, the Office of the U.N. High Commissioner for Human Rights and the Centre for human Rights were consolidated into a single office of the United Nations High Commissioner for Human Right on September 15, 1997. The OHCHR is located at Geneva. It maintains a laison office in New York as well as numerous country offices around the world. The office is headed by a high commissioner with the rank of under secretary general.
The High Commissioner is responsible for all the activities of the office of the United Nation High Commissioner for Human Rights. He carries out the functions specifically assigned to him or her by the general assembly in its resolution 48/141 of December 20 1993 i.e. the resolution which created the post of the high commissioner for Human Rights. He advises the secretary-general on the policies of the United Nations in the area of human rights. He ensures that substantive and administrative support is given to the represents the Secretary organs and bodies of the human rights organs and at other human rights events. He also carries out special assignments as decided by the secretary general.
The United Nations High Commissioner for Human Rights in the performance of his or her activities is assisted by a Deputy to the High commissioner who acts as officer in charge during the absence of the High commissioner. The Deputy also carries out specific substantive and administrative assignments as decided by the High Commissioner. The Deputy is accountable to the High commissioner.
Implementation and Monitoring of Human Rights
There cannot be an international protection of human rights unless there is strong and effective machinery for its implementation. Implementation is the key to making the system of international protection of human rights effective. But the protection of human rights in international level is a difficult problem because of a variety of reasons. Firstly the international court of Justice is open to states only. Domestic laws of a state are required to provide an effective system of remedies for violations of international human rights obligations.
International Human Rights law has not become that strong so as to enforce and implement human rights violations committed by a state. However, a variety of international bodies have been monitoring and dealing with the cases of violations of human rights. A number of committees working groups and special rapporteurs have been set up to monitor the violations of human rights. Monitoring mechanism may broadly be divided into two categories which are as follows:-
1) Conventional Mechanism :-
There are at least eight care human rights treaties which have set up committees to perform the task of monitoring states parties compliance with their obligations which are as follows:-
a) Human Rights Committee by the International Covenant on Civil and Political Rights
b) Committee on Economic, social and Cultural Rights by the international Covenant on Economic, social and Cultural Rights.
c) Committee on the Elimination of Discrimination Against Women by the convention on the Elimination of All Forms of Discrimination Against Women.
d) Committee Against Torture by the Convention Against Torture and other Cruel, inhuman and Degrading Treatment or Punishment.
e) Committee on the Rights of the Child by the convention on the rights of the child.
f) Committee on the Racial discrimination by the convention on the Elimination of Al form of Racial discrimination.
g) Committee on the Right of Migrant Workers and Members of Their Families by the convention on the protection of the Rights of All migrant Workers and members of Their Families
h) Committee on the Rights of Persons with Disabilities by the convention on the rights of persons with Disabilities.
The above committee monitors the states obligations through a dialogue with the representatives of each of the states parties on the basis of a detailed report. The principal outcome of this process in the record of the resulting dialogue and the committees own summary of the key points which provide an opportunity for individual member or the committee as a whole, to indicate the extent to which the state party appears to be in compliance or otherwise.
2) Extra Conventional Mechanism:-
In addition to treaty mechanism the most important procedures designed to protect human rights have been established within the united nations commission on human rights and it sub-commission on the protection of human rights. The ad hoc nature of the special procedures of the commission on human rights allows for a more flexible response to serious human rights violations than the treaty bodies. Experts entrusted experts. When several experts are given a mandate a group is sent which is known as working group. These experts examine monitor and send report to the commission either on human rights situations in specific countries and territories or on global phenomena that cause serious human rights violation worldwide.
The idea for the protection for human rights and fundamental freedoms was conceived in the Atlantic Charter (1941) and the Declaration of the United Nations. When the founders of the United Nations met at San Francisco Conference in 1945 to draft the charter of the United Nations, Latin American states, in particular, wanted it to be incorporated as part of the charter.
After the united nations charter came into force, the most important task before the united nations was the implementation of the principles of the respect for human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion as laid down under Article 55 of the U.N. Charter. In 1946 the Economic and social council formally endorsed the view that the purpose of the united nations with regard to the promotion and observation of human rights could be fulfilled only if the provision was made for an international bill of rights and for its implementation.
It was therefore decided to prepare an international Bill of Rights to achieve the end. The general assembly referred this matter to the economic and social council for study by the commission on human rights. The commission in January 1947 appointed a committee known as drafting committee for the preparation the draft of the Bill of Rights.
The procedure for the preparation of the draft of the international bill of rights was also prescribed by the economic and social council. The drafting committee at it s first session, prepared a preliminary draft of the international bill of rights which was considered by the commission on human rights at its second sessions held from December 2 to 17, 1947. however due to the difference of opinion as to its forms and contents, the commission decided to apply the term international bill of human rights to a series of documents in preparation and established three working groups.
The commission therefore decided to draw up simultaneously two sets of documents i.e. a draft declaration consisting of a declaration of general principles on human right and a draft convention, which would be a convention on such specific rights as would lend themselves to binding legal obligations. The commission along with the above two documents also prepared a memorandum on the question of implementation. The three documents to be known as international bill of Human Rights.
The universal Declaration of human rights was adopted in 1948 and two international covenants were adopted in 1966 codifying the two sets of rights outlined in the universal declaration. International covenant on civil and political rights and the international covenant on economic social and cultural rights entered into force in 1976. Later the General assembly also adopted two optional protocols to the international covenant on civil and political rights: Optional protocol to the international covenant on civil and political rights in 1966 and the second optional protocol to the international covenant on civil and political rights aiming at the abolition of death penalty in 1989 and one optional protocol to the international covenant on economic social and cultural rights in 2008.
The two international covenants together with her universal declaration and the optional protocols comprise the international bill of human rights. Thus international bill of human rights is a collective term applied to sex major international instruments. These documents have laid the foundations form which other treaties and declarations have been adopted.
Fundamental rights and freedoms contained in the international bill of human rights have been further elaborated in over seventy human rights treaties concerning slavery, genocide, humanitarian law, the administration of justice, social development religious tolerance, cultural cooperation discrimination, violence against women, and the status of refugees and minorities. These treaties represent in their totality, the international corpus furies of social justice. The above clearly shows that international human rights law since World War II has developed in an unprecedented way and has become a part of international law as a whole.
Preamble of the Universal Declaration
The preamble of the Universal Declaration incorporated a form of natural law language by inserting whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom justice and peace in the world. The preamble proclaimed it as a common standard of achievement for all peoples and for all nations to the end that every individual and every organ of society, keeping this declaration constantly in mind shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international to secure their universal and effective recognition and observance, both among the peoples of member states themselves and among the peoples of territories under their jurisdiction.
If this proclamation is to be interpreted as a recommendation a question arises as to whom this recommendation has been made. It is not addressed either to the members or to the states or to the governments.
Enumeration of Rights in the Declaration
The universal Declaration contains 30 Articles. It enumerated therein the basic postulates and principles of human rights in a most comprehensive manner. Out of 30 Articles while 21 Articles enumerated Article 2 to 21 deals with the civil and political rights and 22 to 27 deals with the economic and social rights.
Civil and political Rights
Articles 2 to 21 deal with those civil and political rights which have been generally recognized throughout the world. These are as follows
1) Right to life, liberty and security of persons
2) Freedom form slavery or servitude
3) Prohibition against torture, inhuman or degrading t4reatment or punishment
4) Recognition as a person before the law
5) Equality before the law and equal protection of the law without any discrimination
6) Effective remedy before the national tribunals
7) Freedom from arbitrary arrest, detention or exile
8) Right to a fair and public hearing by an independent and impartial tribunal
9) Presumption of innocence until proved guilty in a public trial with all guarantees necessary for defend in criminal cases
10) Freedom from ex-post facto laws
11) Right to privacy, family, home and correspondence
12) Right to freedom of movement and residence within the borders of a state.
13) Right to leave any country, including his own and to return to his country.
14) Right to seek and to enjoy in other countries asylum form persecution
15) Right to a nationality
16) Right to marry and found family
17) Right to own property
18) Right to freedom of thought conscience and religion
19) Right to freedom of opinion and expression
20) Right to freedom of peaceful assembly and association
21) Right to participate in the government of his country
Economic and social Right
Articles 22 to 27 of the Declaration deal with economic and social rights which are as follows
Influence of the Universal Declaration
The declaration has exercised a profound influence upon the minds of men. It is a primary proclamation of the international communities' commitment to human right as a common standard of achievement for all people and for all nations. It is a message of hope equality, liberation and empowerment. It is a massage to all who are committed to freedom justice and peace in the world.
It has been the source of inspiration and has been the basis for the United Nations in making advances in standard setting as contained in a number of international human rights treaties. It has inspired a number of declarations and international conventions concluded under the auspices of the United Nations and of he specialized agencies. The declarations as a whole or its different Articles have been frequently quoted in the resolutions of the General Assembly as justification for actions taken by the United Nations.
Its provisions have also influenced various national constitutions, national legislations regulations and policies that protect fundamental human rights. These domestic manifestations include direct reference to the universal declaration or incorporation of its provisions. The declaration is frequently cited in support of judicial decisions which upheld a particular right guaranteed under domestic constitutions or statutes. Italian courts have taken a broad view by holding that the universal declaration is more than a mere declaration of intent form the point of view of Italian municipal law.
Declaration on the Right to protect Human Rights:
The universal Declaration of Human Rights laid down the rights of human beings. It did not stipulate the means by which these rights shall be promoted and protection of the universally recognized human rights itself requires certain rights to be given ro the individuals, groups and organs of the states despite the fact that the prime responsibility and duty to promote and protect human rights lie with the state.
CIVIL AND POLITICAL RIGHTS 1966:
The universal declaration of human rights stated the common standard of achievements for the enjoyment and protection of human rights. It was not legally binding on the states. The fact is that it was not intended to be legally binding. The commission on human rights in 1947 while considering the preliminary draft of an international bill of human rights prepared by the Drafting committee, decided to draw up a separate covenant which would be a covenant on such specific rights as would lend themselves to binding legal obligations.
The document was to be known as international covenant on Human rights. In order to prepare it a working group was established which prepared a Draft covenant consisting of twe3nty seven articles divided into three parts. The first part described the obligations of states which adhered to the covenant, the second part defined some of the rights and freedoms listed in the draft declarations,, in more precise terms and the third part described how accession to the covenant would be effected and how amendments would come into force.
On the recommendation of the 3rd committee the general assembly on December 16, 1966 adopted the two covenants;
1) International covenant on Civil and political rights and
2) International covenant on Economic, social and cultural rights. It also adopted on optional protocol to the international covenant on civil and political rights. The general assembly on December 15th, 1989 adopted the second optional protocol to the international covenant on civil and political tights Aiming at the abolition of the death penalty.
Covenant on civil and political rights
The covenant on civil and political rights consists of 53 articles and is divided into six parts. While in parts I, II and III various rights and freedoms are enumerated, the other three parts are devoted with implementation procedures for effective realization of these rights along with the final clauses.
Article 1 which refers to the rights of peoples to self -determination states that all peoples have the right freely to determine their political status and freely pursue their economic, social and cultural development and may, for their ends, freely dispose of their natural wealth and resource without prejudice to any obligations arising out of international economic co-operation, based upon the principles of mutual benefit and international law.
The article further states that in no case may a people be deprived of its own means of subsistence, and that the state parties shall promote the realization of the right of self-determination and shall respect that right. The covenant on economic, social and cultural rights also stipulated the above provision in to under Article 1.
Part II stipulated rights and obligations of the state parties to the covenant. It included the obligations of the states to take necessary steps to incorporate the provisions of the covenant in the domestic laws and to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the covenant. The state parties ensure the equal rights of men and women to the enjoyment of all civil and political rights.
Part III deals with the specific rights of the individuals and the obligations of the states parties
The above rights set forth in the covenant are not absolute and are subject to certain limitations. It is to be noted that the covenant is a legally binding treaty and the state parties are legally bound to give effect to its provisions. The covenant lays down under Article 2 Para 2 that each state party undertakes to adopt such legislative measures within their domestic jurisdiction as may be necessary to give effect to the rights listed in the covenant and under Article 2 Para 3(a) provided that they shall provide an effective remedy if the violation has been committed by persons acting in an official capacity.
Civil and Political Rights in Emergency
The covenant made provisions under Article 4 relating to public emergency which threatens the life of the nation. Para 1 of the above Article lays down that the state parties to the covenant may take measures derogating from their obligations under the covenant to the extent strictly required by the exigencies of the situations. Thus the declaration of emergency permits a state to suspend human rights.
The covenant under Para 2 of Article 4 provided that there are certain rights in respect of which no derogation can be made. For instance, there cannot be any derogation in the
(1) Right to life
(2) Freedom from inhuman or degrading treatment
(3) Freedom from slavery, slave trade and servitude
(4) Freedom from imprisonment for inability to fulfill contractual obligations
(5) Non-retroactive application of criminal law
(6) Right to recognition as a person before the law and
(7) Freedom of thought, conscience and religion.
Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, social and cultural Rights is consisted of 31 Articles which are divided in five parts. Part I deals with the rights of peoples to self-determination as provided in Article I of the covenant on Civil and political rights of the individual are enumerated in part III of the covenant which included the following rights.
It is significant to note that the ICESCR does not permit a state to derogate from their obligation even in public emergency which threaten the life of the nation. Part II of the covenant laid down the undertakings of the states parties to the covenant. Article II provided that each states party undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the covenant by all appropriate means including particularly the adoption of legislative measures. It appears from the above provision that the states are not under an obligation to abide by the provisions of the covenant immediately i.e. from the date of ratification of the covenant.
Relationship between the two covenants
It is to be noted that at the time of the adoption of the universal declaration of human rights there was no distinction between the two sets of rights. The declaration had stated civil and political rights as well as economic, social and cultural rights. The distinction between the two sets of rights came up later during the cold war which resulted in the drafting of two covenants. However, there is a close relationship between the two covenants which have enumerated various civil and political rights and economic, social and cultural rights.
It is evident form the fact that preamble and Article 1, 2, 3, and 5 are virtually identical in both the covenants. Preamble of both; the covenants recognize that these rights derive from the inherent dignity of human persons. Article 12 of each covenant affirms that all people have the right to self determination and by virtue of the right they are free to determine their political status and to pursue their economic social and cultural development. While Article 2 in both the covenants reaffirms the principle of non-discrimination, article 3 in stress that states should ensure the equal right of men and women to the enjoyment of all human rights. Article 5 of the covenants provided safeguard against the destruction or undue limitations of any human rights and fundamental freedoms.
Their relationship was recognized by the international conference on Human rights which were held in Tehran in 1968. it declared in the final proclamation: since human rights and fundamental freedoms are indivisible the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The General assembly in 1977 reiterated in a resolution which stated all human rights and fundamental freedoms are indivisible and inter-dependent and equal attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political, and economic social and cultural rights.
The resolution also stated that full realization of civil and political rights without the enjoyment of economic, social and cultural rights in impossible. Civil and political rights are the means to the social and economic power of the people. Vienna conference on human rights held in 1993 in Vienna recognized under Para 1 that the world conference on human right reaffirms the solemn commitment of all states to fulfill their obligations to promote universal respect for and observance and protection of all human rights and fundamental freedoms for all.
Under Para 5 the declaration stipulated that all human rights are universal indivisible and inter-dependent and inter-related. The international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis. Civil rights such as right to equality, freedom of speech and expression shall be meaningless in the absence of social and economic rights. It is desirable therefore that the state should give equal emphasis to the rights stipulated in both the covenants in view of their inter-dependence.
UNIT - III
Introduction:-
In international law the region may mean an area embracing the territories of a group of states. It is not necessary that the states constituting a region should belong to same continent or they should be contiguous. What is essential is that the states should be bound together by the ties of common interest i.e. there should at least be an identity of certain minimum values and standards. Thus a region may be created by grouping the states on the basis of economic, social, cultural or political factors.
It may also be constituted by states having affinities of race, institutions or political interests. Regional agreements may be created for a wide range of purposes such as, security, defence, political or socio-economic functions and responsibilities. States constituting a regional arrangement are therefore a more limited community than those of international institutions. Such organizations are established as it is easier to develop a sense of community in a compact geographical area.
The united nations in the charter gave due importance to regional arrangements. Chapter VIII of the charter consisting of articles 52 to 54 is devoted exclusively to regional arrangements. Article 52 Para 1 provides that regional arrangements may be made by the states for dealing with matters relating to maintenance of international peace and security provided that the activities of such arrangements are consistent with the purposes and principle of the United Nations charter.
In the event of a conflict between the obligations of the members of the United Nations and their obligations under regional arrangements, their obligations under the charter shall prevail. Thus the obligations undertaken by the members under the charter are supreme and they cannot be contradicted by the members before or after the establishments of the organization.
Regional arrangements on Human Rights :-
The idea of regional arrangement for the promotion and protection of human right has been gaining recognition since the adoption of the universal declaration of human rights. The absence of any effective international agency for the protection of these rights required the need for the existence of regional arrangements comprising of such states which have a common heritage of political traditions ideals, freedoms and the rule of law. The regional bases are likely to help the promotion of human rights in a more effective manner than to the machinery of the United Nations which is already very complex and over-burdened.
The regional organizations are likely to decentralize its activities and avoid confusion. They are also more readily available. The states constituting the regional agencies are like4ly to have at least, less ideological differences. This factor alone would make the implementation of human rights easier. Public opinion would also have more influence under the regional system an on the international plane.
The Vienna conference on human rights in 1993 stated in the declaration that regional arrangements play a fundamental role in promoting and protecting human rights. They should reinforce universal human rights standard as contained in international human rights instruments and their protection. The world conference on human right endorsees efforts under was to strengthen these arrangements and to increase their effectiveness while at the same time stressing the importance of cooperation with the United Nations human rights activities. The conference reiterated the need to consider the possibility of establishing regional and sub-regional arrangements for the promotion and protection of human rights where they do not already exist.
The statute of the council of Europe, established by the congress of Europe consisting of members who were likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law stressed that the maintenance and promotion of human rights were one of the means to achieve the ultimate objective of European unity. The negotiation within the council led to the adoption of the European convention for the protection of Human rights and fundamental freedoms on November 4 1950. The convention is also called the European convention on human rights. The convention was signed by the members of the council. It came into forced on September 3, 1953.
Protocols to the European convention
The European convention has adopted fourteen protocols by October 31, 2008 which have either amended certain provisions of the convention or added the rigfhts enshrined in the convention. Protocols which add rights to the convention shall be binding only on those states that have signed and ratified them. A state that has merely signed a protocol without ratifying it will not be bound by its provisions. They are as follows:
1) protocol no 1 was signed on march 20 1952 which added four new articles providing for certain rights and freedoms such s right to peaceful enjoyment of one's possessions and right to education and right to free elections. The protocol came into force on May 18 1954.
2) Protocol no 2 signed on may 6, 1963 provided that the court of human right may at the request of the committee of ministers give advisory opinion on legal questions concerning the interpretation of the convention and protocol. It came into force on September 21, 1970.
3) Protocol no 3 signed on may 6, 1963 secured the freedom from imprisonment for debts, from expulsion and the right to enter own country, prohibition of collective expulsion of aliens and the choice of residence and liberty of movement. It came into forced on may 2, 1969.
4) Protocol no 4 signed on September 16, 1963 secured the freedom from imprisonment for debts from expulsion and the right to enter own country, prohibition of collective expulsion of aliens and the choice of residence and liberty of movement. It came into force on may 2, 1969
5) Protocol no 5 signed on January 20, 1966 made certain procedural changes regarding election of the members of the commission and the court.
6) Protocol no 6 which came into force in March, 1985 restricted the application of the death penalty to times of was or imminent threat of war.
7) Protocol no 7 which came into force on November 1, 12988 provided that there is a right of refie4w of a conviction by a higher tribunal
8) Protocol no 8 which entered into force on January 1, 1990 laid down that the commission may set up chambers or committees.
9) Protocol no 9 which came into force on October 1, 1994 enables individual applications to refer cases to the court in certain circumstances.
10) Protocol no 10 adopted on March 25, 1992. Deleted the words of two thirds from Para 1 of article 32 of the convention.
11) Protocol no 11 was adopted on may 11 1994. The protocol established a fundamental change in the machinery of the convention. It abolished the commission and the judicial functions of the committee of ministers. The protocol restructured the court and allowed the individuals to apply directly to the court. It entered into force on November 1, 1998.
12) Protocol no 123 of July 2003 prohibited discrimination. It entered into force on April 1, 2005. As of July 2009 it has been ratified only by 17 states.
13) Protocol no 13 of April 2005 provided for the total abolition of death penalty.
14) Protocol no 14 was adopted to improve the efficiency of operation of the court by optimizing the filtering and processing of application those have less chance of succeeding along with those which pare broadly similar to cases brought previously against the same member state. Protocol also introduced a new mechanism to assist enforcement of judgments by the committee of ministers. The protocol has not yet come into force for want of ratification by all council of European member states.
Rights and freedom under European convention
The European convention provided rights and freedom under section 1 of the conventions which are as follows:
Implementation machinery
The enforcement machinery for the observance of the engagements as protection of the rights earlier consisted of European commission of human rights set up in 1954 and the European court of human rights set up in 1958 and the committee of ministers of the council of Europe. Later organ being composed of the ministers of foreign Affairs of the member states or their representatives.
1. European Commission of Human Rights
Section III of the convention had provided the provisions for the European commission on human right. The commission consisted of a number of members equal to that of the high contracting parties. However, the commission did not have two members who were the nationals of the same state. The members of the commission were elected by the committee of ministers by an absolute majority of votes from a list of names drawn up by the bureau of the consultative assembly. The members were elected for a period of six years.
Functions of the European commission
The main function of the commission was to receive complaints form any high contracting party through the secretary-general of the council of Europe as to the breaches of the provisions of the convention. The commission could receive petitions from any person, non-governmental organization or group of individual claiming to be the victims of a violation by one of the high contracting parties. The system of making petitions by the individuals against his own government to the commission for the violation of the rights guaranteed by the convention was indeed the most distinctive feature of the European convention.
However, individuals could make a petition only when the high contracting party had declared that it recognized the competence of the commission to receive such petitions. Thus, the commission could receive complaints from the high contracting parties and the individuals. But the system of making petitions before the commission by the individual and by the high contracting parties was different. Individuals could file a complaint only against those states parties which have declared that they recognise4d the competence of the commission. Thus the individual's petition was optional
The commission did not receive anonymous complaints. It examined only those matter's where all domestic remedies had been exhausted. The commission did not deal any petition which has already been examined by the commission or has already been submitted to another procedure or international investigation or settlement and if it contains no relevant new information.
The commission considered inadmissible any petition which it considered incompatible with the provisions of the convention, manifestly ill-founded or an abuse of the right of petition.
If the commission found any complaint admissible it stated its functioning in two ways. The first was the investigation of the application for ascertaining the facts, and second was securing a friendly settlement of the matter on the basis of respect for human rights these two functions were performed by a sub-commission consisting of seven members.
European court of human rights
The acceptance of the courts jurisdiction was optional for the high contracting parties. The court, therefore, came into force on September 3, 1958 when it was accepted by the required number of acceptance, i.e. by eight members.
The court consisted of number of judges equal to those of the members of the council of Europe. No tow judges could be the national of the same states. For the consideration of each case brought before it, the court consisted of a chamber composed of seven judges. The normal place of the courts session is Strasbourg but it can sit elsewhere as well.
The jurisdiction of the court extended to all cases concerning the interpretation and application of the present convention. The cases could be brought before the court only by high contracting parties and the commission. Only those high contracting parties could file a case whose national is alleged to be a victim which referred the case to the commission and against which the complaint has been lodged.
Jurisdiction of the court per-supposed that the matter has been first referred to the commission and that not more than three months has elapsed since the transmission f the report of the commission to the committee of ministers.
However, the cases could be brought only by those high contracting parties which had accepted the jurisdiction by making a declaration. The declaration could be made by the parties at any time unconditionally or on conditions of reciprocity or for a special period. These declarations were deposited with the secretary general of the council of Europe who transmitted the copies to the high contracting parties. The judgment of the court was final. However, it was binging only on the parties to the case the judgment was transmitted to the committee of ministers which supervised its execution.
The second protocol to the convention conferred to the court the competence to give advisory opinion in certain circumstances. The committee of ministers could request for advisory opinion if it decides to do so by tow-thirds majority on a legal question concerning the interpretation of the convention and the protocols thereto the was not bound to give an advisory opinion but it has the competence to decide whether the request is within the consultative competence.
European Social Charter
The European social charter was signed at Turin on October 18, 1961 and came into force on February 26, 1965. it was adopted by the council of Europe with a view to develop and protect social land economic right and to achieve greater unity between its members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage.
The charter contains a number of social and economic rights in part 1 which are as follows
1. Everyone shall have the opportunity to earn his living in an occupation freely entered upon.
2. All workers have the right to just conditions of work.
3. All workers have the right to safe and healthy working conditions.
4. All workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their families.
5. all workers and employers have right to bargain collectively
6. All workers and employers have the right to freedom of association.
7. Children and young persons have the right to special protection against the physical and moral hazards to which they are exposed.
8. Employed women, in case of maternity, and other employed women as appropriate, have the right to a special protection in their work.
9. Everyone has the right to appropriate facilities for vocational guidance.
10. Everyone has the right to appropriate facilities for vocational training.
11. Everyone has the right to benefit form any measures enabling him to enjoy the higher possible standard of health attainable.
12. All workers and their dependants have the right to social security.
13. Anyone without adequate resources ahs the right to social and medical assistance.
14. Everyone has the right to benefit form social welfare services.
15. Disabled persons have the right to vocational training.
16. The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development.
17. Mothers and children have the right to appropriate social and economic protection.
18. The nationals of anyone of the contracting parties have the right to engage in any gainful occupation in the territory of any one of the others on a footing of equality with the nationals of the latter.
19. Migrant workers have the right to protection and assistance in the territory of any other contracting party.
The above rights are not binding on the contracting parties. They accept these rights only as the aim of their policy, to be pursued by all appropriate means both national and international in character and the attainment of conditions, in which they may be effectively realized. These rights are therefore like target duties of the states. However, each of the contracting parties undertakes to consider themselves bound by certain rights.
The ninth pan American conference in 1948 adopted in American declaration on the the Rights and duties of man laid down the duties as well as the rights of the individual citizens. Later in 1959 in a meeting of consultation of the American ministers for foreign affairs created the Inter-American commission on human right which has since undertaken important investigative activities concerning human rights activities in the American states. Finally the Americans convention was adopted in the Inter-American Specialized conference on human rights held at san Jose, Costa Rica in November 1969 and was signed on November 22, 1969 the last day of the conference. The convention came into force on July 11, 1978.
Civil and political Rights
The convention stipulated a number of civil and political rights for all persons subject to the jurisdiction of the states parties which are as follows.
1. Right to judicial personality
2. right to life form the moment of conception
3. right to human treatment
4. freedom from slavery and involuntary servitude
5. right to personal freedom
6. right to fair trial
7. freedom from ex post facto laws
8. right to compensation for miscarriage of justice
9. rights to privacy
10. freedom of conscience and religion
11. freedom of thought and expression
12. right to reply
13. right of assembly
14. right to freedom of association
15. right of the family
16. right to a name
17. rights of the child
18. right to nationality
19. right to property
20. freedom of movement and residence
21. right to participate in government
22. right to equal protection before the law
23. Right to judicial protection.
The states parties to the convention undertake to respect the above rights and freedom and to ensure to all persons subject to their jurisdiction the free and full exercise of these rights and freedoms without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth or any other conditions.
The American convention on human rights unlike4 the European convention stipulated certain personal responsibilities of persons under Article 32. the convention stated under Para 1 of the above article that every person has responsibilities to his family his community, and mankind Para 2 stipulates that rights of each person are limited by the rights of other by the security of all, and by just demands of the general welfare in a democratic society.
Economic, Cultural and Social Rights
As to economic, social and cultural rights the American convention under article 26 simply stipulated that the states parties undertake to adopt measures both internally and through international co-operation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization standards set forth in the charter of the organization of American states as amend3ed by the protocol of Buenos Aires.
However states parties to the American convention on human rights in 1988 concluded an additional protocol to the American convention on human rights in the area of economic, social, and cultural rights in san Salvador, commonly called protocol of san Salvador wherein a number of economic, social and cultural rights were provide which are as follows:
(1) Right to work
(2) Just equitable and satisfactory conditions of work
(3) Trade union rights
(4) Right to social security
(5) Right to health
(6) Right to healthy environment
(7) Right to food
(8) Right to education
(9) Right to benefits of culture
(10) Right to the formation and the protection of families
(11) Right of children
(12) Protection of the elderly
(13) Protection of the handicapped
Inter-American Commission on Human Rights
The inter- American commission on human rights created in 1959 is composed of seven members who are required to be persons of high moral character and recognized competence in the field of human rights. They are elected in their personal capacity by th4e general assembly of the organization from a list of candidates proposed by the governments of the member states.
The main functions of the commission are to promote respect for and defence of human rights. In the exercise of its mandate, it develops an awareness of human rights among the peoples of America; to make recommendations to the governments for the adoption of progressive measures in favour of human rights within the framework of their domestic law and constitutional provisions as well as appropriate measures to further the observance of the member states to supply it with information on the measures adopted by them, to render advisory services to take action on petitions and other communications and to submit an annual report to the General assembly of the organization of American states. The convention also imposes obligations on the estates parties to give effect to the functions such information as it may request of them as to the manner in which their domestic law ensure sin effective application of any provision of the convention.
The procedure for admitting any such complaint by the commission is subject to certain requirements as laid down in article 46 of the convention. It lays down that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law, the petition is lodged within a period of six months from the date on which the party alleging violation of his rights was noticed of the final judgment, the subject of the petition is not pending before another international procedure for settlement. The petition is required to contain the name, nationality, profession domicile and signature of the person or persons or of the legal representative of the entity lodging the petition.
The commission may consider any communication inadmissible if it is anonymous or written in offensive language, or if it is substantially the same as complaints previously studied by the commission, or if it is incompatible with the provisions of the statute, the Regulations or obviously unfounded, or if it refers to events or situations that bear no relation to a disregard of human rights to events or situations that bear no relation to a disregard of human right by the governments against which it is directed.
If a complaint is lodged simultaneously with the inter-American commission and with the human rights committee, it appears that the letter would postpone the examination of the matter as along as it is under consideration by the inter-American body in view of article 5 Para 2(a) of the optional protocol to the covenant on civil and political right which lays down that the committee shall not consider any communication if the same matter is being examined under another procedure of international investigation or settlement. It would also be consistent with the provision of article 33 of the U.N charter wh9ich approves the regional settlement of disputes in preference to the invocation before the U.N procedure. However as Para 2(b) of Article 5 of the protocol, it appears that the human rights committee would be authorized to consider a communication even while the matter is being examined under the American procedure if the committee feels that the said procedure is unreasonably prolonged.
Inter-American court of Human Rights
The inter-American curt of human rights consists of seven fudges. They are the nationals of the member's states of the organization. Judges are elected in their individual capacity form amongst the jurists of the highest moral authority and of recognized competence in the field of human rights and who are qualified for the appointment of the highest judicial office of the state. No tow judges may be the nationals of the same state. Judges are elected for a term of six years, but they can be re-elected only once. Five judges our of seven judges constitute the quorum for the court. The commission is required to appear in all the cases before the court.
States parties and the commission have a right to submit a case to the court. However for the states parties, the jurisdiction of the court, like the European court is optional. A state party upon depositing its instrument of ratification or adherence to the convention at any subsequent time has to declare that it recognizes as binding ipso facto, the jurisdiction of the court on all the matters relating to the interpretation or application of the convention.
The declaration may be unconditional or it may be made with conditional such as of reciprocity, or for a specified period or for specific cases. Before the court hears a case it is necessary that the case has been referred to the commission. The court has also been conferee advisory jurisdiction. Any member state may consult the court regarding the interpretation of the convention or of other treaties concerning the protectio9n of human rights in the American states.
The advisory jurisdiction conferred on the court is unique in contemporary international law. Neither the international court o justice not the European court of human right has been granted the extensive advisory jurisdiction which the American convention confers on the inter-American court. The court has wider powers than the European court. If it finds that there has been a violation of a right or freedom protected by the convention, it could order that the injured party be ensured the enjoyment of his right or freedom that was violated. It could also order, if appropriate that the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.
The judgment of the court is final and is not subject to appeal. Reasons shall be given for the lf judgment of the court. The states parties to the convention undertake to comply with the judgment of the court in any case to which they are parties. The court, in its annual report submitted to the general assembly of the OAS is required to specify in particular the cases in which a state has not complied with its judgments, making any pertinent recommendation
The creation of a regional agency to protect human rights was first proposed at the African conference on the Rule of law at Lagos in 1961. the conference sponsored by the international court of justice, under the auspices of the international commission of justice adopted a resolution known as law of Lagos stated in Para 4 that this conference invites the African governments to study the possibility of adopting the African convention on human rights. A similar proposal was also made during the U.N seminar on human rights in developing countries held in Dakar in 1966.
The African charter, also known as Banjul charter was adopted on June 27 1981 and entered into force on October 21 1986. The charter has been ratified or acceded to by 53 states members of the organization of African unity. The constitutive act of the African union has replaced the organization of African unity on July 2002. The African unity was officially launched at the Durban summit held in 2002 when the first assembly of the AU heads of states was convened. In 1998 a protocol to the African charter5 was adopted by which African court was established. The court came into force on January 24, 2004.
While chapter I of the Part I lay down the rights, duties of the individuals are stated in chapter II. Following are human and people's rights:
1. Equality before the law
2. right to respect for his life and the integrity of his person
3. right to respect of the dignity inherent in a human being and the recognition of his legal status
4. right to liberty and to the security of his person
5. Right to have his cause heard.
6. freedom of conscience the profession and free practiced of religion
7. right to receive information
8. right to free association
9. right to assemble freely with other
10. right to freedom of movement and residence
11. right to participate freely in the government of his country
12. right to property
13. Right to work under equitable and satisfactory conditions.
14. right to enjoy the state of physical and mental health
15. right to e4ducation
16. the family shall be the natural unit and basis of society
17. right to equality
18. right to dispose wealth and natural resources
19. right to existence
20. right to economic social, and cultural development
21. right to national and international peace and security
22. Right to a general satisfactory environment.
The above rights show that the African charter has not separated political, social and people's rights into separate conventions like the European and American convention.
The charter under chapter II deals with the duties of the individuals of the contracting parties which are as follows
1) Duty towards his family and society, the state and other legally recognized communities and international communities
2) Duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance
3) Duty to preserve the harmonious development of the family and to work for the cohesion and respect of the famous to respect his parents at all times, to maintain them in case of need.
4) Duty to serve his national community
5) Duty not to compromise the security of the estate whose national or resident he is
6) Duty to preserve and strengthen social and national security
7) Duty to preserve and strengthen the national independence and the territorial integrity of his country.
8) Duty to work to the best of his abilities and competence, and to pay taxes imposed by law in interest of the society.
9) Duty to preserve and strengthen positive African cultural values in his relations with other members of the society.
10) Duty to contribute at all times to the promotion and achievement of African unity.
The charter established a commission to promote human and people's rights and ensure their protection in Africa \. The commission shall consist of eleven members chosen form amongst African personalities of the highest reputation known for their high morality, integrity, impartiality and competence in matters of human and people's rights, particularly consideration being given to persons having legal experience. The members of the commission shall serve in their personal capacity. There shall be a secretary of the commission who shall be appointed by the secretary-general of the organization of African unity. He shall provide the staff and services necessary for the effective discharge of the duties of the commission.
The functions of the commission are stated under article 45 which are as follows
1) To promote human and people rights and in particular
a) to collect documents, undertake studies and researches on African problems in the fields of human and people rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and people rights and should the case arise, give its views or make recommendations to governments
b) to formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples right and fundamental freedoms upon which African governments may base their legislations
c) co-operate with other African and international institutions concerned with the promotion and protection of human and people rights.
2) The commission shall ensure the protection of human and peoples rights
3) The commission shall interpret all the provisions of the charter at the request of a state party, an institution of the OAU or an African organization recognized by the OAU.
4) The commission shall perform any other task which may be entrusted to it by the assembly of heads of state and government.
African court on Human and peoples Right
The process for the creation of the African court was initiated at the summit of heads of state and government of the organization of African unity in Tunis in June 1994. a resolution adopted therein requested the secretary-general of the OAU to convene a meeting of government expert to examine way of enhancing the efficiency of the African commission on human rights and to consider in particular the question of the establishment of an African court. A draft of the court was submitted by the OAU secretariat to a meeting of government experts in Capetown in September 1995. later, a number of meeting were held and the African court on human and peoples rights was established by adopting a protocol to the African charter on Human and peoples right on June 9, 1998 at the summit of heads of state and government in Ouagadougou. The protocol came into force on January 24, 2004.
Composition of the Court
The court shall consist of 11 judges elected by the member states of the OAU for a six year tern of office which is renewable once only. Only the states parties to the protocol may propose candidates. Each state may nominate three candidates, at least two of whom must be their nationals but the court may not comprise more than one national of the same state. The judges of the court are elected by secret ballot by the assembly of heads of state and government of the OAU. The judges are elected in individual capacity form among jurists of high moral character and of recognized practical judicial or academic experience in the field of human rights. The judges are therefore not representatives of the states. They elect its president and vice-president for a two year period. Renewable once only.
The court is empowered to act both kin a judicatory and an advisory capacity. Judicatory. Jurisdiction is compulsory as well as optional. As regards the courts compulsory jurisdiction, article 5(2) states that the following are entitled to submit cases to the court:
a) the African commission on human and peoples rights
b) the state party which has filed a complaint to the commission
c) the state party against which the complaint has been filed
d) the state party whose citizen is a victim of a human rights violation and
e) African inter-governmental organizations for issues concerning them.
Individual's petition system is optional. Article 5 Para 3 of the protocol provides that the court may receive individual petitions against a state which has recognize the competence of the court to receive such communications. Thus the individual's communication provisions of the protocol are simila4r to that of the optional protocol to the covenant on civil and political rights.
The court is required to render judgment within 90 days after it has ended it s deliberations. The judgments of the court are decided by majority. Each judge is entitled to add his separate or dissenting opinion to the majority decision of the court. The reasons for the judgment must be given and the judgment is read out in open court after due notice have been given to the parties.
The judgment of the court is final and not subject to appeal. The court may however interpret it s Owen decision land even review it, but only in the light of new evidence under conditions to be set out in rules of procedure. Execution of the courts judgment is basically voluntary. In accordance with article 30 the states parties to the protocol undertake to comply with the judgment in any case to which they are parties and to guarantee execution within ;the time stipulated by the court.
The council of ministers in responsible for monitoring the execution of the courts judgments, in compliance with the provisions of article 29 Para 2 of the protocol. Further in a report submitted to each regular session of the assembly of heads of state and government, the court specifies in particular the cases in which a state has not complied with the courts judgment.
UNIT IV
In the constitution of India, which came into force on 26th January 1951 most of the right enshrined in the universal declaration of human rights, 1948 were enshrined, which we comparatively discuss in this part. The international covenant on civil and political rights entered into force in 1983 and the international covenant on economic, social and cultural rights was entered into force in 1976. India is a plenipotentiary and signatory to both these international covenants and these covenants have also been ratified by the union of India, and the fundamental rights or human rights as they are named in these covenants have been adapted as the law of India on human rights as has been clearly stated in the protection of human rights act 1993.
In definition clause 2(d) it has been declared that human rights mean 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 law in India
In clause 2(f) it has been declared that-" International covenant" means the international covenant on civil and political rights and the international covenant on economic, social and cultural rights adopted by the general assembly of the united nations on the 16th December 1966.
In our constitution these rights adopted in the aforesaid two international covenants have been divided into two sets in different parts of the constitution, that is to say
1. In part II the civil, Cultural and political right are guaranteed as fundamental rights and
2. In part IV economic and social right are made to be dealt with by the state as directive principles of its policy
Right to Equality (Articles 14, 15 and 16
The right to equality and equal protection of the laws is not an unrestricted right. Reasonable restrictions may be imposed upon this right. This world is full of inequalities, social, economic and political. Such inequalities still exist in the society. Resort to fundamental right of equality before law is made occasionally to prevent discrimination and sometime to uphold discrimination as a reasonable restriction on the right of equality.
The state shall not deny any person equality before the law and the equal protection of the laws. IN the universal declaration of human rights 1948 Article 7 it is declared "All men are equal before the law and are entitled without any discrimination to equal protection of the laws. All are entitled to equal protection against any discrimination in violation of this Declaration and any incitement to such discrimination".
Prohibition against discrimination on grounds of religion, race, caste, sex, or place of birth
No citizen shall on grounds only of religion, race, caste sex place of birth or any of them be subject to any disability, liberty restriction or condition regard to
a) access to shops, public restaurants, hotels and places of public entertainment or
b) the use of wells tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public.
Equality or opportunity in matter of employment
1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.
2) No citizen on grounds only of religion, race, caste, sex, place of birth, residence or any of them be ineligible for or discriminated against in respect of any employment of office under the state.
3) Nothing in this article shall prevent parliament from making any law, preserving in regard to a class or classes of employment or appointment to an office under the government of or any local or other authority within a state or union territory any requirement as to residence within that state or union territory prior to such employment or appointment.
4) Nothing in this article shall prevent the estate form making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the state is not adequately represented in the services under the state.
5) Nothing in this article shall affect the operating of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body there of shall be person professing a particular religion or belonging to a particular denomination.
Article 19 provides for protection of certain rights regarding freedom of speech, ect. These are
a) Freedom of speech and expression
b) Freedom of assemble peaceable and without arms
c) Freedom of associations or unions
d) Freedom of move freely throughout the union of India
e) Freedom of reside and settle in any part of the territory of India
f) ......
g) Freedom of practice any profession or to carry on any occupation, trade or business
Article 19 of the universal declaration of human rights provides that everyone has the right to freedom of opinion, and expression, this right includes to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 19(2) of the international covenant on civil and political rights provides that everyone shall have the right to freedom of expression. That right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally or in writing or in print in the form of are or through any other media of his choice.
Article 20: Protection in respect of conviction for offences.
1) no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence nor be subjected to penalty greater than that 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 witnesses against himself.
Article 21: Protection of life and personal liberty:-
Article l211 provides that no person shall be deprived of his life and personal liberty except according to procedure established by law
In Menaka Gandhi v/s Union of India, the Supreme Court observed that though article 21 of the constitution is written in negative language it confers fundamental right to life and personal liberty.
In National Human Rights commission v/s State of A.P; the Supreme Court has observed that the right to life as enshrined in article 21 means something more than me4re survival of animal existence. It includes the right to live with human dignity with minimum substance and shelter and all those rights and aspects of life which go to make a man's life complete and worth living.
The expression procedure established by law has been judicially construed to mean a procedure which is reasonable, fair and just. Subsequent to the menaka Gandhi case referred to above May aspects of fair procedure or reasonable and just procedure to the context of article 211 have come up before the supreme courts. The case law on the topic is endless and selected cases are being referred to in this context
Protection Against arrest and detention in certain cases.
Article 22 of the constitution provides that
1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest not 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 with in a period of 24 hours of such arrest excluding the time necessity 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 e4nemy alien or
b) To any pe5rson who is arrested or detained under any law providing for preventive detention.
4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless
a) an advisory board consisting of persons who are, or have been, or are qualified to be appointed as judge of the high court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by parliament under sub-clause
5) When any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be, communicate to such person be grounds on which the order has been make and shall afford him the earliest opportunity of making a representation against the order
6) Nothing in clause (5) shall require the authority making such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose
7) Parliament may be law prescribe
(a) the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of any advisory Board din accordance with the provisions of sub-clauses (a) of clause (4)
(b) the maximum period for which may in any class or classes of cases be detained under any law providing for preventive detention
(c) the procedure to be followed by an advisory board in an inquiry under sub-clause (a) of clause (4)
Right to freedom of religion
Article 25 provides that
a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.
b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
It may be noted that
I) the wearing of kirpans and carrying them to ay public place shall be deemed to be included in the profession of Sikh religion,
II) The reference to Hindus shall be construed as including a reference to persons professing the Sikh Jaina or Buddhist religion and the reference to Hindu religious institutions shall be construed accordingly.
It may be elucidated in this concern that article 25 ensures equality of all religions and guarantees their profession, practice and propagation,. The act of professing is concerned with the expression of one's creed caste or nationality. The act of practice is primarily concerned with religious worship, rituals and observances. Whereas propagations is concerned with the right to communicate beliefs to another person or to expound the tents of one's religion, but it does not include the right to forcible or fraudulent or alluring conversions
Freedom to manage religious affairs.
Article 26 provides that every religious denomination or any section thereof shall have right
a) to establish and maintain institutions for religious and charitable purposes
b) to manage it own affairs as matters of religion
c) to own and acquire movable and immovable property and
d) to administer such property in accordance with law
Religious denomination means a religious sect or body having common faith, common organization and a distinctive name. IN Commissioner Hindu endowments madras v/s Sri Lakshmindra tirtha swamiar: spoke for the court thus: As regards article 26 the first question is what is the precise me4aning of the expression religious denomination and whether a math could come within the expression. The word denomination has been defined in the oxford dictionary to mean a collection of individual's classed together under the same name, a religious sect or body having a common faith and organization and designated by a distinctive name.
The wore religious denomination in article 26 of the constitution must take their colour from the word religion and if this be so the expression religious denomination must also satisfy three conditions
We do not think that the above definition can be regarded as either precise or adequate. Articles 25, 26 of our constitution are based for the most part upon article 44(2) of the constitution of Eira and were have great doubt whether a definition of religion as given above could have been in the minds of our constitution makers when they framed the constitution.
Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any intelligent first cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral past of religion and these forms and observances might extend even to matters of food and dress.
Freedom as to payment of taxes for promotion of any particular religion
Article 27 of the constitution provides that no person shall be compelled to pay any taxes which are specially appropriated in payment of expenses for the promotion or maintenance of any particular religion.
The provision of this article aims at to check the state from imposing any tax for promoting of any particular religion in order to save like the secular character of the state and not to become a theocratic state like an Islamic states
Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
Article 28 provides that
1. No religious instruction shall be provided in any educational institution wholly maintained out of state funds
2. The above provision shall not apply to an educational institution which is administered by the state but has been established under any religious endowment or trust which requires that religious instruction shall be imparted in such institution.
3. no person attending any educational institution recognized by the state or receiving aid out of state funds shall be required to take part in ay religious instruction that may be imparted in such institution or in any premises attached therto unless such person or if such person is a minor his guardian has given his consent thereto
Under article 28 of the constitution, nobody can be compelled to receive religious instructions. Under the second and third categories of institutions imparting education, no person attending such an institution can; be compelled to receive religious instruction or to attend any religious worship or service imparted or conducted by such institution. But if a person chooses himself or herself to attend such instruction or attend the worship or if such person is a minor, his or her guardian if so chooses, then such person can be obliged to attend such religious instruction or attend the particular type of worship which such institution is affiliated with.
Cultural and educational rights
Protection of interests of minorities
Article 29 provides that
1. Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same
2. NO citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion race, caste, language or any of them.
In the Ahmedabad St. Xavier's college society v/s State of Gujarat, the supreme court expressed its view expressly that the states interest in education, so far as religious minorities are concerned, would be served sufficiently by reliance of secular education accompanied by optional religious training in minority schools and colleges, if the secular education is conducted there according to the prescribed curriculum and standard.
The question for consideration is whether the minorities based on religion or languages have the right to establish and administer educational institutions for imparting general secular education within the meaning of article 30 of the constitution. The minority institutions which are in truth and reality educational institutions where education in its various aspects is imparted claim protection of Article 30. This raises the question at the threshold whether article 30(1) and 29(1) of the constitution are mutually exclusive. Article 29 and 30 of the constitution are grouped under the heading culture and educational rights.
Article 29(1) deal with right of any section of the citizens residing in India to preserve their language script or culture. Article 30(1) provides that all religious and linguistic minorities have the right to establish and administer educational institutions of their choice. Article 29(2) prohibits discrimination in matters of admission into educational institutions of the types mentioned therein on the grounds only of religion; race, caste language or any of them. article 30(2) prevent states from making any discrimination against any educational institution in granting aid on the ground that it is managed by a religious or linguistic minority.
Right to property
The 44th amendment to the constitution has abolished the fundamental right to property. It is now only a general right of the citizens. Article 31 along with article 19(1)(f) have been abrogated by the said amendment. Clause (1)(f) and clause (5) of article 19 laid down that every citizen had the right to acquire, hold and dispose of property subject to state's right of imposing bylaw reasonable restrictions on its exercise in the interest of the general public or for the protection of the interests of any scheduled tribe.
The object of the amendments is to take away the right of property form the category of fundamental rights and make the same a right which can be regulated by ordinary law. This Act of union parliament in the regime of janat party is against and contrary to the Human right as declared in article 17 of the universal declaration of human rights, 1948 which declares:
Article 17 (1) everyone has the right to own property alone as well as in association with others
(2) No one shall be arbitrarily deprived of his property.
Right against exploitation
Prohibition of traffic in human being and forced labour
Article 23 provides that
1. Traffic in human being and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
2. noting in this article shall prevent the state form imposing compulsory service for public purposes and in imposing such service the state shall not make any discrimination on the grounds only of religion, race, caste or class or any of them
This article prohibits
a) traffic in human beings
b) beggar and
c) Other similar forms of forced labour.
Under article 23(1) traffic in human beings like slavery, bonded labour compulsion of ladies to prostitution or call girls, immortal affairs, ect. Have been prohibited in all the forms whatsoever the ways of exploitation maybe. It is correct that slavery or slaver trade is not the business of Indians on the land of India or any where through them. But immoral traffic in women is found on a large scale in the country. For checking and preventing the evil of immoral traffic of women and girls by devils on the Indian soil the union of India has brought the suppression of immoral traffic in women and girls Act 1956 for inflicting punishment on those who are engaged in the business of trafficking in women and girls for immoral purposes.
Traffic in human being includes the disposal of women and girls abducted or kidnapped by the professional criminals by ways of sale as movable properties. Such offence is punishable under section 370 of the IPC also which provides that whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts receives or detains against his will any person as a slave, shall be punished with imprisonment of either description for a term which may extend seven years and shall also be liable to fine.
Section 371 of the IPC provides against habitual dealing with slaves that whoever habitually imports exports removes, buys, sells, traffics or deals in slaves, shall be punished with imprisonment for life or with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine.
Section 372 of the IPC lays down against selling minors for purposes of prostitution, ect that whoever sells lets to hire or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any stage be employed or used for the purposes of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it likely that such person shall at any stage be employed or used for any such purpose, shall be punished with imprisonment for a term which may extend to ten years and shall also be livable to fine
Section 373 of the IPC provides for punishment for buying minors for purposes of prostitution etc for imprisonment for a term extending to ten years and also to fine.
Article 23(1) prohibits all forms of beggar or forced labour. Bonded labour has also come in the notice of the Supreme Court as beggar or forced labour. The bandhua Mukti Morcha has done appreciable work in getting the bonded laborers released by obtaining orders form the Supreme Court. The bonded labour system Act 1976 has been brought by the union of India for abolishing the system. In this Act the bonded labour system has been defined to mean the system of forced or partly forced labour under which a debtor enters or has or is permitted to have entered into an agreement with the creditor to the effect that
I) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants and in consideration of the interest if any, due on such advance
II) in pursuance of any customary or social obligation
III) in pursuance of an obligation devolving on him by succession
IV) for any economic consideration received by him or by way of his lineal ascendants, or descendants
V) by reason of his birth in any particular caste or community he would
a) render, by himself or through any member of his family, or any person dependent on him, labour or serviced to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages
b) Forfeit the freedom of employment or other means of livelihood for a specified period of for an unspecified period.
c) Forfeit the right to move freely throughout the territory of India
d) Forfeit the right to appropriate or sell at market value any of the property or product of his labour or of a member of his family, or any person dependent on him and includes the system of forced or partly forced labour under which a surety for debtor enters, or has or is presumed to have, entered into an agreement with the creditor to the effect that in the event of the failure of the debtor to repay the debt, he would render the bonded labour on behalf of the debtor.
Prohibition of employment of children in factories
Article 24 of the constitution provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous engagement.
The provisions of this article are in consonance with clauses (e) and (f) of Article 19. According to article 45 which lays down the directive principle of state policy that the state shall Endeavour to provide within the period of ten years form the commencement of the constitution, free and compulsory education for all children until they complete the age of fourteen years.
The employment of children Act 1938 prohibits employment of children below the age of 15 years
a) To work in any occupation connected with the transport of passengers, goods or mails by railways or
b) To be employed or permitted to work in any occupation involving handling of goods within the limits of any port. The Act also prohibits employment of children below 12 years in any workshop wherein any of the processes such as bidi manufacturing, explosives, fireworks, mica cutting and splitting, soap manufacturing and wood cleaning is done. The factories Act 1948 also prohibits employment of children for pressing cotton to work in any factory.
Right to constitutional Remedies
Article 32 provides that
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred this part is guaranteed.
2. The Supreme Court shall have powers to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the right conferred by this part.
3. without prejudice to the Prowers conferred on the supreme court by the 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 constitution. The enumerated and guaranteed fundamental right enunciated principles of justice as are the human right declared under the universal declaration of human right 1948, if remedies to implement them would not have been provided under article 32 of the constitution.
In case of violation of these rights the Supreme Court can be moved under article 32. A high court having its territorial jurisdiction may also be moved in case of breaches of fundamental rights, beside the breaches of legal right, under article 226 of the constitution.
In pursuance of a resolution of the general assembly adopted in 1966, the economic and social council asked the human rights commission of the UN to consider the question of creation of national commission of human right to perform certain function relating to the observance of the international covenant on human rights. This question was also considered by the commission in 1970 and the commission recommended that the question of establishment of national commission of human rights in each member state of the UN ought to be decided by each government of the member state keeping in view the traditions and institutions of each country.
Since then the human rights commission has several times stressed the need of the creation of national commission of human rights in each member state. Vienna declaration and programme of action adopted by the Vienna conference on human rights on June 25, 1993 recommended that every state ought to provide an effective framework of machinery or institution to provide remedies in case of violations of human rights. It was after the said world conference that several states including India have established national commission of human rights to redress human rights grievances or violations.
In order to meet this criticism apart from other reasons India decided to establish a national commission of human right for the redressed of grievances of human rights violations. On 28 September 1993 the president of India promulgated an ordinance which established a national commission of human rights. Thereafter, a bill on human rights was passed in the lok sabha on December 18, 1993 to replace the ordinance earlier promulgated by the president. This bill received the assent of the president on January 8, 1994 and was published in the Gazette of India extraordinary, part II section 1 on January 10, 1994 national commission of human rights Act came into force.
But since the pursuance of the ordinance had already been performed article 1 (3) provided that the Act shall be deemed to have come into force on the 28th day of September, 1993 section 1(2) provides that the Act extends to the whole of India provided that it shall apply to the state of Jammu and Kashmir only in so far as it pertains to the matters relatable to any of the entries enumerated in list I or list III in seventh Schedule to the constitution applicable to that state.
National Human Rights Commission
Constitution: the national human right commission is constituted by the central government to exercise the powers conferred upon and to perform the functions assigned to it under the Act. The commissions consist of:
a) A chairperson who has been the chief justice of the supreme court
b) One member who is or has been the judge of the supreme court
c) One member who is or has been the chief justice of a High court
d) Tow members to be appointed amongst persons having knowledge of or practical experience in matters relating to human rights.
Besides these the chairperson of national commission for minorities the national commission for the scheduled castes and scheduled tribes and the national commission for women shall be deemed to be members of the commission for the discharge of function specified in clauses
The Act also makes provision for a secretary- general who shall be the chief executive officer of the commission and shall exercise such power and discharge such functions of the commission as it may delegate to him.
Headquarters of the commission:- the headquarters of the national human rights commission is located at Delhi. The commissioner may, however with the previous approval of the central government establish offices at other places in India. The commission shall ordinarily hold its meeting and sittings in its offices located at Delhi however, it may in its discretion hold its meeting at any other place in India if it transact business at places outside its headquarters as and when previously approved by the chairperson, provided that if the parties are to be heard in connection with an enquiry under the Act at least two members shall constitute the bench of the commission for such purpose.
Appointment of chairperson and other members:- The chairperson and other members are appointed by the president by warrant under his hand and seal after obtaining the recommendations of committee consisting of
a) Prime Minister ---Member
b) Speaker of the house of people ---member
c) Minister in charge of ministry of home affairs in the government of India ---member
d) Leader of the opposition in the house of the people---member
e) Leader of the opposition in the council of states ---member
f) Deputy chairperson of the council of states ---member
A sitting judge of the Supreme Court or sitting chief justice of the high court can be appointed only after consultation with the chief justice of India
It is further provided that no appointment of a chairperson or a member shall be invalid by reason of any vacancy in the above committee headed by the prime minister.
Term of office of members
A person appointed as chairperson shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of seventy years whichever is earlier. A person appointed as a member shall also hold office for a term of five years form the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years. This is however subject to condition that no member shall hold office after he has attained the age of seventy years. Further on ceasing to hold office, a chairperson or a member shall ineligible for further employment under the government or the government of any state. This is indeed a welcome feature of the Act. Such a provision ought to be compulsory in respect of the offices of speaker of the lok sabha, deputy speaker of the Rajya Sabha, chief election commission and governors of states.
Removal pf a member of the commission:
The chairperson or any other member of the commission can be removed from his office by order of the president on the ground of proved misbehavior or incapacity after the supreme court on reference being made to it by the president, has no inquiry held in accordance with the procedure prescribed in that behalf by the supreme court, reported that the chairperson or such other member as the case may be ought on any such ground be removed. But this provision or notwithstanding this provision the president may by order remove from office the chairperson or any other member if the chairperson or such other person as the case may be:
a) Is adjudge an insolvent
b) Engages during his term of office in any paid employment outside the duties of his office
c) Is unfit to continue in office by reason of infirmity of mind or body
d) Is of unsound mind and stands so declared by a competent court
e) Is convicted and sent to imprisonment for an offence which in the opinion of the president involves moral turpitude.
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 other person on his behalf into complaint of:
I) Violation of human right or abetment thereof or
II) 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 condition of inmates an d make recommendations therein
d) Review the safeguards provided by or under the constitution or any law for the term being in force for the protection of human rights and recommend measures for their effective implementation.
e) Review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend 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 section of the society and promote awareness of the guards available for the protection of these rights through publications, the media, seminars and other available means
i) Encourage the efforts of non-governmental organizational and institutions working in the field of human rights
j) Such other functions as it may consider necessary for the promotion of human rights
Powers relating to inquiries
While inquiring into complaints under this Act the commission possesses 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 of 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
The commission also has power to require any person subject to any privilege which may be claimed by that person under any law of or 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 enquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of sections 178 and 177 o f the IPC
Procedure for dealing with complaints
Regulation 8 of the national human rights commission regulations 1994 lays down the following procedure for dealing with complaints of alleged violation of human rights
1. All complaints in whatever form received by the commission shall be registered and assigned a number and placed for admission before a bench of two members constituted for the purpose not later than two weeks of receipt thereof. Ordinarily complaints of the following nature are not entertainable by the commission.
(a) In regard to events which happened more than one year before the making of complaints
(b) With regard to matters which are subjudice
(c) Which are vague, anonymous or pseudonymous?
(d) Which are of frivolous nature?
(e) Those which are outside the purview of the commission
2. No fee is chargeable on complaints.
3. Every attempted should be made to disclose a complete picture of the matter leading to the complaint and the same may be made in English or Hindi to enable the commission to take immediate action. To facilitate the filing of the complaints the commission shall however, entertain complaints in any language included in English schedule of the constitution. It shall be open to the commission to ask for further information and affidavits to be filed in support of allegations whenever considered necessary
4. the commission may in its discretion, accept telegraphic complaints and complaints conveyed through fax
5. the commission shall have the power to dismiss a complaints in limine
6. upon admission of a complaint the chairperson commission shall direct whether the matter would be set down for inquiry by it or should be investigated into
7. on every complaint on which a decision is taken by the chairperson/ commission to either hold an in2quiry or investigation the secretariat shall call for report from the concerned government/ authority giving the latter a reasonable time therefore
8. on receipt of the comments of the concerned authority a detailed not on the merits of the case shall be prepared for co9nsideration of the commission
9. the directions and recommendations of the commission shall be communicated to the concerned government/authority and the petitioner as provided for in sections 18 and 19 of the Act
10. the commission may in its discretion afford a personal hearing to the petitioner or any other person on his behalf and such other person or persons as in ;the opinion of the commission should be heard, for appropriate disposal of the matter before it and where necessary call for records and examine witnesse4s in connection with it. The commission shall a forced a reasonable hearing, including opportunity of cross examining witnesses of any, in support of the complaint and leading of evidence in support of his stand to a person whose conduct is enquired into by it or where in its opinion the reputation of such person is likely to be prejudicially affected.
11. Where investigation is undertaken by the team of the commission or by any other person under its discretion, the report shall be submitted within a week of its completion or such further time as the commission may allow. The commission may in its discretion direct further investigation in a given cases if it is of the opinion that investigation has not been proper or the matter requires further investigation for ascertaining the truth or enabling it to properly dispose of the matter. On receipt of the report, the commission on its own motion, or if moved in the matter, may direct inquiry to be carried by it and receive evidence in course of such inquiry.
12. The commission or any of its members when requested by the chair person may undertake visits for an on the spot study and where such study is undertaken by one or more members a report thereon shall be furnished to the commission as early as possible.
Annual and special reports of the commission
The national human rights commission is required to submit an annual report to the central government and to the state government concerned and a may at any time submit special report on any matter which in its opinion is of such urgency or importance that it should not be deferred tell submission of the annual report. After the annual report is submitted by the commission, 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 also with a memorandum of action taken or proposed to be taken on the recommendations of the commission and the reasons for non-acceptance of the recommendations if any.
State Human Rights Commission
Constitution: The state human rights commission shall consists of
a) A chairperson ;who has been a chief justice of a high court
b) One member who is or has been a judge of a high court
c) One member who is or has been a district judge in that state
d) Two members to be appointed from amongst persons having knowledge of or practical experience, in matters relating to human rights
Headquarter of the state commission
He headquarters of the state commission has not been fixed or settled by the Act. It should have been at the state capital like that of NHRC which is at national capital. It has been left to the discretion of the state government to fix or settle the place. The
Act simply provides that it shall be at such place as the bate government may by notification specify
Jurisdiction of the state commission;
Sub section (5) of section 21 provides that a state commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in list II and list III in the seventh schedule to the constitution. This is however subject to a proviso that if any such matter is already being inquired into by the commission or any other commission duly constituted under any law for the time being in force the state commission shall not inquire into the said matter.
But according to the second proviso in relation to Jammu and Kashmir human rights commission this sub section shall have effect as if that the words and figures list II and list III in the seventh schedule to the constitution the words and figures list III kin the seventh schedule to the constitution as applicable to the state of Jammu and Kashmir in respect of matters in relation to which the legislature of the state has power to make laws had been substituted.
The territorial jurisdiction of the national human rights commission or the commission has not been specifically mentioned or clarified in any provision of the Act although the wording of section 12 in general indicate and imply that it extends to the whole territory of India. However negatively Article 36(1) curtails the jurisdiction by providing that the commission shall not enquire into any matter which is pending before a state commission or any other commission duly constituted under any law for the time being in force. Besides this section 36(2) provides that both the commission and the state commission shall not enquire into any matter after the expiry of one year from the date on which the Act constitution violation of human rights is alleged to have been committed.
Appointment of chairperson and other members of state commission
The chairperson and other members of state commission are to be appointed by the governor under his hand and seal after obtaining the recommendation of a committee consisting of
a) Chief Minister ----Chairperson
b) Speaker of the legislative assembly---Member
c) Minister in Charge of the Department Home in that state --- Member
d) Leader of the Opposition in the Legislative Assembly ___member
Human Rights Courts in Districts
Section 30 of the protection of human rights Act 1993 provides for a human rights court in each district. It provides that for the purposes of providing speedy trial of offences arising out of violation of human rights the state government may, with the concurrence of the chief justice of the high court, by notification specify for each district a court of session to be human rights curt to try the said offences. But no such court shall be specified if
(a) a court of session is already specified as a special court
(b) a special court is already constituted for such offences under any other law for the time being in force.
The Act also makes provision for a special public prosecutor for every human rights court. Section 31 of the Act provide that for every human rights court the state government shall by notification, specify a public prosecutor or appoint an advocate who has been in practices an advocate for not less than seven years as a special public prosecutor for the purposes of conducting cases in that court.
While section 31 is mandatory section 30- is optional. The provisions contained in section 30 is very weak, for it uses the word may that is to say it is not mandatory for the state government to establish human rights courts in each distr5ct. that is why, only a few states namely Andhra Pradesh, Sikkim and Tamil Nadu have notified such courts and only tow states, namely, Tamil Nadu and Assam have established such curt in Madras and Guwahati respectively, other states have not so far taken any action in this connection.
Sometime back D.,R KIarthikeyan the director general of national human rights commission said that the greatest number of complaints of violation of human rights come from Uttar Pradesh. Despite these district human rights courts have not yet been established in Uttar Pradesh. Subsequently however such courts have also been notified in utter Pradesh.
Section 30 which provides for establishment of district human rights courts does not lay down the jurisdiction of such courts. It also does not lay down as to what procedure shall be followed by such courts. This ambiguity will create problems when the cases for alleged violation of human rights are actually conducted in such courts.
In its annual report of 2003-2004 remarked that it is unfortunate that the central and state governments have so far failed to resolve issues that are creating impediments in the setting up of fully functioning human rights courts.
UNIT V
There are certain groups of human beings which either by nature of because of deep-rooted custom are weak and vulnerable, such as, a child, women, disabled persons, aged persons, migrant workers or persons belonging to a particular race. However they being human beings do possess human rights and fundamental freedoms. But their rights have been violated very frequently by the dominant section of the society. The movement of the under privileged and deprived sections for securing a place for themselves under the auspices of the united nations has contributed a great deal in spreading the message of human rights. A number of conventions have been concluded under the auspices of the United Nations to protect their rights.
1. Rights of Women
The advancement of women has been a focus of the work of the United Nations since its creation. The preamble of the charter of the United Nations sets as a basic goal to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women. Further more, article 1 of the charter proclaims that one of the purposes of the United Nations is to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for the people with distinction as to race, sex, language or religion.
As early as in 1946 the commission on the status of women was established to deal with women's issues. The universal declaration of human rights had affirmed the principle of the inadmissibility of discrimination and proclaimed that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex.
The general assembly on November 7, 1967 adopted a declaration on the Elimination of Discrimination Against Women and in order to implement the principle set forth in the declaration, a convention on the elimination of All forms of discrimination against women was adopted by the general assembly on December 18 1`979 after five years of consultations with the commission on the status of women.
The convention under Para III lays down a number of fields where states parties are required to take steps to eliminated discrimination against women which includes the following
1) Education: - The convention under article 10 provides that women shall be provided same conditions for careers and vocational guidance as to that of men. They shall be provided same access to studies for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas. This equality shall be provided in pre-school, general technical, professional and higher technical education, as well as in all types of vocational training.
Women shall have access to the same curricula, the same examinations teaching staff with qualifications of the same standard and school premises and equipment of the same quality as to that of men. Women shall be provided same opportunities as to men in matters relating to scholarship and other study grant.
2) Employment:- The convention under article 11 provided that states parties shall take all appropriate measures to eliminate discrimination against women in the field of employment providing the same rights, in particular,
(a) The right to work;
(b) right to same employment opportunities
(c) Right to free choice of profession and employment
(d) right to equal remuneration including benefits and to equal treatment in respect of work of equal value as well as equality of treatment in the evaluation of the quality of work.
(e) The right to social security particularly in cases of retirement unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave
(f) right to protection of health and to safety in working conditions. There shall be no discrimination against women on grounds of marriage or maternity.
3) Health Care :- The convention under Article 12 provides that states parties shall take steps to eliminate discrimination against women in the field of health care, access to health care services, including those related to family planning.
4) Economic and Social Life: - Article 13 of the convention provides that discrimination against women shall be eliminated in other areas of economic and social life. They shall be provided, the same rights as to that of men in particular
(a) the right of family benefits
(b) the right to bank-loans, mortgages and other forms of financial credit
(c) the right to participate in recreational activities sports and all aspects of cultural life.
5) Women in Rural Areas: - Article 14 provided elimination of discrimination against rural areas. States parties are required to ensure such women the right
a) To participate in the elaboration and implementation of development planning at all levels
b) To have access to adequate health care facilities including information counseling and services in family planning
c) To benefit directly form social security programme
d) To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as inter alia, the benefit of all community and extension services, in order to increases their technical proficiency
e) To organize self-help groups and cooperatives in order to obtain equal access to economic opportunities through employment or self-employment
f) To participate in all community activities
g) to have access to agricultural credit and loans marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes and
h) To enjoy adequate living conditions.
6) Equality before law: - Article 15 of the convention provides that states parties shall accord to women equality with men before the law. Women shall have equal rights to conclude contacts and to administer property and states parties shall treat them equally in all stages of procedure in court and tribunals.
7) Marriage and Family Relations: - Article 16 provides that states parties shall take all measures to eliminate discrimination against women in all matters relating marriage and family relations. Women shall be provided
a) The same right to enter into marriage
b) The same rights and responsibilities during marriage and at its dissolution
c) The same rights and responsibilities as parents in matters relating to their children.
d) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise their rights.
e) The same rights and responsibilities with regard to guardianship, warship trusteeship, and adoption of children
f) The same personal rights as husband and wife, including the right to choose a family name a profession and an occupation
g) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
Conferences on women
In addition to the above conventions three conferences held during the U.N sponsored international women's Decade, Mexico city 1975 Copenhagen, 1980 and Nairobi 1985 and the Fourth world conference on women held in Beijing in 1995 have greatly enhanced international awareness of the concerns of women and provided the groundwork for invaluable links between the national women's movements and the international community. In the Nairobi conference, forward looking strategies for women to the year 2000 was produced but that could not be implemented adequately in many areas though there were clear signs of progress in the areas of education, health and access to employments.
First international instrument dealing exclusively with women's rights was adopted by the General assembly in 1952. it was the convention on the political rights of women. Then came the convention on the Nationality of Married women in 1957. Under this convention the contracting state parties agreed that neither the celebration for the dissolution of marriage between one of its nationals and an alien nor the change of nationality of the husband during the marriage shall automatically affect the nationality of the wife.
Then the convention on consent to marriage, minimum age for marriage and registration of marriages of 1962 and the convention on recommendation of the subject of 1965 aimed specially at prohibiting child marriages.
The general assembly proclaimed 1975 as international year of women, it was an intensified act of the united Nations for intensified action to promote equality, full integration of women in the efforts of development and recognition of women's role in strengthening the world peace.
In 1975 the general assembly also approved the creation of the international research and training institute for advancement of women, which came into operation in October 1979. from July 14 to 30 1980 another world conference was held in Copenhagen for reviewing the progress made to achieve the aims set out in the 1975 plan of action and for recommending activities for the second half of the women's decade and called for another world conference to review to progress in 1985.
On July 1, 1985 the United Nations fund for women was established. It is an autonomous association with UNDP contributions are made to the fund by the Governments international organizations, national committees on the fund and individuals and is governed by UNDP and the fund.
The fourth world conference on women held in 1995 in Beijing commonly called Beijing conference stated that women's human rights in the work of the different human rights bodies of the united nations. It considered issues of violence against women in public and private life as human rights issues
The United Nations General assembly in 2000 convened a special session on women in 2000: Gender Equality, development and peace for the 21st century to assess the progress on women issues since the Beijing conference in 1995. The special session also known as Beijing 5 renewed the Beijing Declaration and platform for action adopted at the Beijing conference on women in 1995. Delegates agreed that, while progress had been made towards the full implementation of the goals set out in Beijing conference on Women in 1995.
This conferences and the Convention on Elimination of All Forms of Discrimination Against Women could not achieve the desired effect in view of the fact that women's human rights are still disregarded and violated worldwide in different ways and to varying degrees. Violence against women remains a global phenomenon against which no country, no society and no community is immune. Discrimination against women exists because it has roots in societal norms and values that do not change as a result of international agreements or even by legislation.
Status of Women in India
India has given equal status to women under its constitution under Article 14 which provides that "the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The above provision clearly shows that women in India enjoy right to equality and any discrimination against them shall be violations of equality of right and respect for human dignity.
The constitution also provides under Article 15 that every female citizen has a right to access to shops public restaurants, hotels and places of public entertainment and no restriction can be imposed on female citizens with regard to the use of wells tanks bathing ghats roads and places of public resort maintained wholly or partly by state funds. Article 16 of the constitution provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.
For instance, the constitution was amended in 1992 to reserve 33 per cent of the seats in their favour in panchayats and municipalities. The Amendment is regarded as a major step for socio-economic empowerment of the women in India. It being a part of Directive principles of state policy is not enforceable in a court of law but if the state makes any law to prohibit any act or conduct in violation of this duty the court would uphold the law as a reasonable restriction of the fundamental rights.
In Air India v/s Nergesh Meerza the Supreme Court stuck down the provision of the rules which stipulated the condition that services shall be terminated on her first pregnancy as unconstitutional.
In Maya Devi v/s State of Maharashtra the requirement that a married woman should obtain her husbvand's consent before applying for public employment was held invalid and unconstitutional.
In Pratibha Rani v/s Suraj Kumar it was held by the Supreme Court that it cannot be said that upon entering into matrimony the stridhan property of the married women has to be placed in the placed in the custody of her husband.
In Vishaka and others v/s state of Rajasthan the Supreme Court presented a law until the legislature to safeguard the interest of the workingwomen and protect them form sex exploitation at then place of work. In this case a writ petition was filed before the supreme curt by certain social activists and NGOs with the aim of preventing sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation. Court observed that each incident of sexual harassment of women at work place results in violation of fundamental rights of Gender Equality and the Right to life and liberty.
Article 23 of the constitution provides against exploitation of women under the heading that
1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention with law.
2) Nothing in this Article shall prevent the state form imposing compulsory service for public purposes and in imposing such service that state shall not make any discrimination on grounds only of religion, race, caste, or class or any of them.
Article 39 of the constitution provides for certain principles of state policy to be followed by the state in which it is mandated that the state shall in particular direct its policy towards securing.
Under Article 42 of the constitution provisions for just and human conditions of work and maternity relief has been directed to be made that the state shall make provision for securing just and human conditions of work and for maternity relief.
Under Article 44 uniform code for the citizens to be attempted to be made has been directed in a loose language that the state shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India.
Mohd. Ahmad Khan v/s Shah Bano Begun's much agitated case that a common civil code will help the cause of national integration by removing desperate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the state which is charged with th4e duty of securing a uniform civil code for the citizens of the country and unquestionably, it has the legislative competence to do so.
Section 354 of the IPC make punishable an assault or criminal force on women with intention to outrage her modesty. It provides that whoever assaults or uses criminal force on any woman intending to outrage, or knowing it to be likely to that he will thereby outrage her modesty shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
Section 312 of the IPC provides for punishing for causing miscarriage, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment for a term extending up to three years or with fine or with both.
Section 375 of IPC provides punishment for rape which has been defined in section 375.
Protection of women from Domestic Violence Act 2005:-
The Beijing declaration and the programme of action had regarded domestic violence as a human right issue and a serious deterrent to development. In order to provide effective protection of the rights of women who are victims of violence of any kind occurring within the family, the protecting of women from domestic violence Act 2005 was enacted by the parliament.
Domestic violence has been defined by the Act under section 3 as any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it
a. Harms or injures or endangers the health, safety, life, limb or well being whether mental or physical of the aggrieved person or tends to do so and includes causing physical abuse sexual abuse, verbal and emotional abuse and economic abuse
b. Harass, harms, injured or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security
c. has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause harm whether physical or mental to the aggrieved person.
The universal declaration of Human Rights had stipulated under pare 2 of Article 25 that childhood is entitled to special care and assistance. The above principle along with other principle of the universal declaration concerning the child was incorporated in the declaration of the rights of the child adopted by the General Assembly on November 20 1959. The international covenant on civil and political Rights under Articles 23 and 24 and the international covenant on economic social and cultural rights under article 10 make provisions for the care of the child.
In a number of other international documents it was stated that the child should grow up in a family environment in an atmosphere of happiness love and understanding. Although principles were proclaimed for the care and development of the child these principles were not binding on the states. It was therefore realized that a convention is prepared which should be legally binding on states.
The convention on the rights of the child was a adopted by the general assembly by consensus on the 30th anniversary of the declaration on November 20 1989 which came into force on September 2, 1990. as on has 54 articles and is divided into three parts. The CRC is the first globally binding treaty for the protection of children's civil political economic, social and cultural rights. After the conclusion of the convention the child became an active subject of right. CRC in fact provided a bill of rights for children. The convention under article 1 stats that a child means every human being below the age of eighteen years unless under the law applicable to the child majority is attained earlier.
Rights of the Child :-
A number of rights have been stipulated in the convention which includes the following
UNITED NATIONS INTERNATIONAL CHILDREN'S EMERGENCY FUND [UNICEF]
The United Nations organization established this fund on December 11, 1948 for providing assistance to children and adolescents of the countries which had been victims of aggression. It provided them without any discrimination as to race, caste, sex, national status or political belief. On October 6, 1953 the general assembly decided to utilize this fund for assistance of the children of developing countries.
The name of this fund was also changed as United Nations children's fund instead of the United Nations international children's Emergency fund, but its initials former name UNICEF was retained.
The economic and social council of the United Nations supervises its word and also reviews it from time to time. The economic board consisting of 41 elected members controls the operation of this fund. The members of the economic board are elected by the Economic and social council for a period of three years. It provides assistance to the developing countries to improve and develop the condition of children. The fundamental principle underlying the scheme of the fund is that children are the means as well as beneficiaries of national development; as such improvement in the quality of life of children would lead to the sustained economic and social progress of a nation.
Optional Protocols to the Convention on the Right of the Child
Two optional Protocols to the convention on the Rights of the child were adopted on May 25, 2000 in New York which is as follows
a) Optional Protocol on the involvement of children in Armed Conflict:-
The Geneva convention of 1949 did not lay down provisions for the involvement of children in armed conflicts. Additional protocol I to Geneva conventions adopted in 1977 provided under article 77 Para 1 that the parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in ;hostilities and in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the parties to the conflict shall Endeavour to give priority to those who are oldest.
The Protocol established that no person under the age of 18 shall be subject to compulsory recruitment into regular armed forces, and imposes and obligation on states to raise the minimum age for voluntary recruitment to at least 16 years. Article 3 Para 3 of the optional protocol provides that states parties
The protocol that no person under the age of 18 shall be subject to compulsory recruitment into regular armed forces and imposes an obligation on states to raise the minimum age for voluntary recruitment to at least 16 years. Article 3 Para 3 of the optional protocol provides that states parties may permit voluntary recruitment in their national armed forces under the age of 18 years after providing minimum safeguards which are
(a) Such recruitment is genuinely voluntary
(b) Such recruitment is carried out with informed consent of the person's parents or legal guardians
(c) Such persons are fully informed of the duties involved in such military
service
(d) Such persons provide reliable proof of age prior to acceptance into national military service.
b) Optional Protocol on the sale of children, child prostitution and child pornography:-
The optional protocol supplements the provisions of the convention on the rights of the child by providing detailed requirements for the criminalization of violations of the right of children in the context of the sale of children, child prostitution and child pornography. The protocol came into force on January 18 2002. As on November 18 2009 the optional protocol had 135 states parties.
The protocol provides definition for the offences of sale of children, child prostitution and child pornography. It sets standards for the treatment of violations under domestic law, including with regard to offenders, protection of victims and preventive efforts. It also provides a framework for the increased international cooperation in these areas, in particular for the prosecution of offenders.
Child Labour
Child labour is one of the most pressing social problems which the international community has been facing. According to the international labour Organization (ILO) estimated in 2000 some 211 million children between 5 to 14 years of age work in developing countries, with about half working full time. While 61 per cent of the total child lobour population is concentrated in Asia, 32 and 7 per cent are in Africa and Latin America respectively. Another ILO survey shows that 50 to 60 million children between the ages of 5 to 11 worldwide are working in hazardous circumstances.
The goals of the United Nations in terms of child labour are to protect working children form exploitation and hazardous conditions that endanger their physical and mental developments to ensure children's access to at least minimum levels of education, nutrition and health care, and to achieve the progressive elimination of child labour. In goals different bodies of the United Nations have made certain advancements which include the following
a) International labour Organization since it inception has been committed to the protection of children and young persons as an essential prerequisite for social justice. Over the years, the ILO has adopted 12 major conventions, which either prohibits the employment of children or set basic conditions above a certain age may be permitted to work in different sectors of employment. International labour organization in 1990 launched a major global offensive by establishing the international programme on the elimination of child labour. The programme provides upon the request of individuals technical advisory services focusing on the worst abuses hazardous work, forced labour street children, girls and the employment of children who are less than 13 years old.
b) The most effective step was taken by the international labour organization when it adopted on June 17, 1999 in Geneva, a landmark treaty on worst forms of child labour convention. The convention came into force on November 19, 2000. by the end of December 2008 the convention had 169 states parties. The convention applies to all children under the age of 18 called for countries to prohibit and eliminate the worst forms of child labour as a matter of urgency. The treaty provided for the prohibition on exploitative practices such as slavery, or practices similar to slavery such as sale and trafficking of children, debt bondage and child prostitution and also on forced recruitment of children in armed conflict. The treaty also required ratifying countries to provide support for removing children from dangerous labour and ensure access to education or vocational training.
c) The General Assembly in 1992 urged governments and the commission on Human Right to take action on the problems of street children who are increasingly involved in and affected by serious crime, drug abuse, violence and prostitution.
d) The sub-commission on prevention of Discrimination and protection of minorities has called for steps to halt the recruitment of conscription of children into armed forces.
e) The commission on Human Right has appointed a special Repporteur on the sale of children, child prostitution and child pornography and the use of adoption for commercial purposes.
Commission for Protection of Child Rights Act
In order to give effect to the policies adopted by the Government for the protection of the rights of the child the commission for the protection of child rights Act 2005 was enacted on January 20 2006.
The commission shall consist of a chairperson who shall be a person of eminence and has done outstanding work for promoting the welfare of appointed by the central government from amongst persons of eminence, ability integrity, standing and experience in education, child health, care, welfare of child development, juvenile care or care of neglected or marginalized children or children with disabilities elimination of child labour or children in distress, child psychology or sociology and laws relating to children. The office of the commission shall be at Delhi.
The commission shall perform a number of functions as provided under section 13 of the Act which includes
(a) Examine and review the safeguards provided by or under any law for the time being in force for the child rights
(b) Present to the central Government annually and at such other intervals as the commission may deem fit reports upon the working of these safeguards
(c) Inquire into violation of child right and recommend initiation of proceedings in such cases
(d) examine all factors that inhibit the enjoyment of rights of child affected by terrorism communal violence riots natural disaster domestic violence, HIV trafficking maltreatment torture and exploitation pornography and prostitution and recommend appropriate remedial measures
(e) Look into the matters relating to children in need of special care and protection
(f) Study treaties and other international instruments and undertake periodical review of existing policies and programmes and other activities on child rights
(g) Undertake and promote research in the field of child rights
(h) Spread child rights literacy among various sections of the society
(i) inspect any juvenile custodial home or any together place of residence or institution meant for children
(j) Inquire into complaints and take suo motu notice of matters relating to deprivation and violation of child rights and
(k) Such other functions as it may consider necessary for the promotion of child rights.
World Summit for Children
The world summit for children was held on September 29 and 30 1990 in new York to bring attention and promote commitment, at the highest political level to goals and strategies for ensuring the survival, protection and development of children as key elements in the socio-economic development of all countries and human society. The summit adopted the world declaration on the survival protection and development of children and the plan of Action for implementing the world Declaration.
While the declaration is a moral and joint commitment the plan of Action is a practical guide for national governments international and non-governmental organizations to ensure the implementation of the declaration's specific principles. The Action plan sets specific goals for children and development in the neut decat. Some of the goals are as follows
More than 650 million men women and children in the world suffer from either mental or physical disability. Most of them live in the developing world. They suffer form discrimination and lower standard of living. They are often denied basic education opportunities and often given menial or poorly paid jobs. Social attitudes exclude them form cultureal life and normal social relationship. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full land effective participation in society on an equal basis with others.
In order to promote and protect the right and dignity of persons with disabilities General assembly on December 19, 2001 established an Ad hoc committee for the preparation of a comprehensive and integral international convention on the protection and promotion of the right and dignity of person with disabilities. The Ad hoc committee in June 2003 decided to establish a working Group with the aim of preparing and presenting a draft text of a convention.
The Ad hoc committee adopted the draft text of the convention and forwarded to the general assembly for adoption. The General assembly on December 13 2006 adopted by consensus the convention on the rights of persons with disabilities. The convention came into force on May 3 2008 after its ratification by 20 states. As on November 18 2009 the convention had 73 states parties.
The convention has provided general obligations to the state parties for the full realization of all human rights and fundamental freedom for all persons with disabilities. For instance, states parties shall undertake.
Each party undertakes to take measures to the maximum of it s available resources, and where needed, within the framework of international cooperation, with a view to achieving progressively and full realization of these rights, without prejudice to those obligations contained in the present convention that are immediately applicable according to international law.
Committee on the Right of person with disabilities
A committee on the rights of persons with disabilities was established. The committee shall consist, at the time of entry into force of the convention of twelve experts. The number of members shall be eighteen when the convention is ratified by an additional sixty states. The members of the committee shall be elected by states parties. They shall be elected for a term of four years.
The committee shall consider the reports submitted by the states parties on measures taken to give effect to its obligations under the convention and on the progress made in that regard. States parties to the convention are required to submit report within two years after the entry into force of the convention. The committee may make suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the state party concerned.
Optional Protocol to the convention on the Rights of persons with Disabilities
OPCRPWD was adopted on December 13, 2006 by the general assembly. The protocol came into force on May 3, 2008 when it was reified by 10 states parties. As on November 18, 2009 the protocol had 47 states parties. Optional protocol was adopted in order to provide rights to the individuals to make communications to the committee on the rights of persons with disabilities. Article 1, Para 1 of the optional protocol lays down that a state party to the protocol recognizes the competence of the committee on the rights of persons with disabilities to receive and consider communication from or on behalf of individuals or groups of individuals subject to it s jurisdiction who claim to be victims of a violation by that state party of the provisions of the convention.
The committee shall consider a communication inadmissible when
The committee shall bring any communications submitted to it confidentially to the attention of the state party. Within sex months, the receiving state shall submit to the committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that state. If the committee receives reliable information indicating grave or systematic violations by a state party of rights set forth in the convention, the committee shall invite that state party to cooperate in the examination of the information and to this end submit observations with regard to the information and to this end submit observations with regard to the information concerned.
The committee may designate one or more of its members to conduct an inquiry and to report urgently to the committee after taking into account any well as any other information available to it. After examining the findings party concerned together with any comments and recommendations. The state party concerned shall within six months of receiving the findings comments and recommendations transmitted by the committee submit its observation to the committee.
Older Persons
The United Nations is concerned not only with the quality of the life of human beings but it is also equally concerned with the longevity of the human beings. As a result of the gradual decline in death rates and rising life expectancy, it is expected that all countries of the world during the next two decades will witness an increase in the proportion of their population aged 60 or over. By the year 2020 more than 1000 million people aged 60 years and above will be living in the world. The United Nations is committed to help those countries which are facing the challenge for the needs of elderly persons and using effectively their contribution to development.
The question of ageing was first debated at the United Nations in 1948 at the initiative of Argentina. The issue was again raised by Malta in 1969. in 1971 the general assembly asked the secretary general to prepare a comprehensive report on the elderly to suggest guidelines for national and international action. In 1978 assembly decided to hold a world conference on the Ageing. Accordingly the world assembly on ageing was held in Vienna from July 26 to August 6 1982 wherein an international plan of action on ageing was adopted.
The overall goal of the plan was to strengthen the ability of individual countries to deal effectively with the ageing in their population, keeping in mind the special concerns and needs of the elderly. The plan attempted to promote understanding of the social economic and cultural implications of ageing and of related humanitarian and developed issues. The international plan of action on ageing was adopted by the general assembly in 1982 and the assembly in subsequent years called on governments to continue to implement its principles and recommendations. The assembly urged the secretary general to continue his efforts to ensure that follow up action to the international day for older persons.
Principles for older Persons
The general assembly on December 16, 1991 by a resolution adopted a set of 18 principles for older persons. These principles were related to the independence, participation, care self-fulfillment and the dignity of the older persons. Some of the principles are as follows:
The assembly on October 15 and 16 1992 convened a special international conference to mark the tenth anniversary of the adoption of the 1983 international plan of action on ageing. Later the general assembly on November 11, 1992 adopted a proclamation on ageing by which it decided to observe 1999 as the international year of older persons. The proclamation calls for international cooperation to be promoted for life-long health, income generation and new forms of productive ageing. It urges national initiative to view older persons as contributors to their societies and not as burden engage the entire population in preparing for the later stages of life and help old and young generations to cooperate in creating a balance between tradition and innovation in economic, social and cultural development.
The covenant on civil and political rights under article 27 provided that persons belonging to ethnic religious and linguistic minorities shall not be denied the right to enjoy their own culture to profess and practice their own religion or to use their own language. Inspired by the above the general assembly on December 18, 1992 adopted the declaration on the rights of persons belonging to national or ethnic, religious or linguistic minorities. The declaration proclaimed that promoting and protecting the rights of such minorities contribute to the political and social stability of states in which they live. The declaration consisting of nine articles stated the following rights to such persons.
States are required to cooperate on questions relating to persons belonging to minorities inter alia, exchanging information and experiences, in order to promote mutual understanding and confidence. Measures taken by states to ensure the effective enjoyment of the rights shall not prima facie be considered contrary to the principle of equality contained in the universal declaration of human rights. The world conference on human rights held in Vienna in 1993 urged all states and the international community to promote and protect rights of persons belonging to national or ethnic religious and linguistic minorities in accordance with the declaration on the rights of persons belonging to national or ethnic , religious and linguistic minorities.
The universal declaration of human rights by making a pronouncement that all human being are born freedom equal in dignity and rights had made it clear that the states have unanimously agreed to outlaw the outmoded concept of hegemony of national group over any other only because of its numerical strength in the matter of an equal enjoyment of the civil right and liberties. The general assembly on the elimination of all form of intolerance and of discrimination based on religion or belief after having considered that religion or belief is one of the fundamental elements of every person in his life and that freedom of religion or belief should be respected and guaranteed.
The declaration stipulated that the right to freedom of thought, conscience and religion stipulated under article 18 of the covenant on civil and right include the freedom to have a religion or belief of his choice either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching . No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice. Article 2 stipulated that no one shall be subject to discrimination by any state, institution, group of persons, or person on the grounds of religion or other belief as it constitutes an affront to human dignity. All states shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief. Article 7 of the declaration laid down that states shall accord in their national legislation, to provide freedom of religion and belief, in such a manner that everyone is able to avail himself of such rights and freedom in practice.
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