UNIT I

Human Rights in Indian Context

UNIT 1
HUMAN RIGHTS IN INDIAN CONTEXT
This unit will introduce to the students, the development of human rights in the Indian
context. It also further introduces the Indian perspective of social theory and justice as
founded by a number of statesmen. It will also subtly discuss the contribution and
significance of Sarvodaya for the development of human rights movement in India and the
Constitutional provisions dealing with Fundamental Rights, Directive Principles of State
Policy and Fundamental duties evolved by the Constitutional framers on the lines of the
International Law of Human Rights.

1. Introduction:
The concept of Human Rights is not new to India. It
is inherent part of socio, economic and cultural life of
Indian society. A number of religious, literary, social and
philosophical texts from ancient to modern times advocated
the concept based on 'Duty', in contrast to that of the
Western culture of Rights. After independence, the framers
of constitution, taking into consideration of both Eastern
and Western philosophies, have developed Human Rights
concept to suit according to the needs of Indian polity.
The Indian Constitution, compared to that of
Universal Declaration of Human Rights was ahead in bifurcating civil and political
rights and economic, social and cultural rights as independent units of the constitution.
In a way, the division of both sets of rights advocated by Indian constitution, paved the
way for United Nations to undertake steps on the lines of Indian perspective and
bifurcated them as two independent sets of rights in 1966, as Covenant on Economic,
Social, Cultural Rights and Covenant on Civil and Political Rights.
2. Indian Bill of Rights
The legal and other texts of ancient and medieval India advocated duty as
the prime concept for augmentation of rights of the individual through the legal
tenet of 'Dharma'. However, the arrival of foreign rulers and their divide and rule
policy brought in disastrous results for the promotion and protection of individual
rights in the modern period.
To resist the policies of colonial masters and to drive them from the country,
'Indian National Congress' was established in 1885. A number of movements have

1
 Human Rights in Indian Context

been initiated under its banner to release the people from the bondage of colonial rule
and to restore the rights of people at every level. Among the various movements, the
Purna Swaraj and the Home Rule Movement richly contributed for the developmentof
Indian Bill of Rights. In this regard, the report prepared by Mr. Motilal Nehru in 1928
enumerated certain rights that were to be conferred upon the Indian subjects by British
colonial Masters. The rights that were enumerated in the report of Nehru are popularly
referred to as 'Indian Bill of Rights'. In a way, they received a significant consideration
while drafting the constitution by the constituent assembly. The Rights advocated by
The bill are as follows:
(i)Allpowers of government and all authority, legislative, executive
andjudicial, are derived from the people and the same shall be exercised in
the Commonwealth of India through the organizations established by or
under, and in due process of this constitution. (Right to democracy)
Noperson shall be deprived of his liberty nor shall his dwelling or property
beentered, sequestered or confiscated, save in accordance with law. All
titles to private and personal property lawfully acquired and enjoyed at the
establishment of the commonwealth are hereby guaranteed. (Comparable to
various freedoms under Article 19 and Right to Liberty under Article 21)
Freedom of conscience and the free profession and practice of religion
are,subject to public order or morality, hereby guaranteed to every
person.(Comparable to Article 19 and 25 )
Theright of free expression of opinion, as well as the right to
assemblepeaceably and without arms, and to form associations or unions, is
hereby guaranteed for purposes not opposed to public order or morality.
(Comparable to Article 19 )
Allcitizens in the Commonwealth of India have the right to free
elementaryeducation without any distinction of caste or creed in the matter
of admission into any educational institutions, maintained or aided by the
state, and such rights shall be enforceable as soon as due arrangement shall
have been made by competent authority. Provided that adequate provision
shall be made by the state for impairing public instruction in primary
schools to the children of members of minorities of considerable strength in
the population through the medium of their own language and in such script
as is in vague among them. (Comparable to Article 21A )

2
 Human Rights in Indian Context

Allcitizens are equal before law and posses equal civic rights.(Comparable
toArticle 14)
Thereshall be no penal law whether substantive or procedural of
adiscriminative nature. (Comparable to Article 20)
Noperson shall be punished for any act which was not punishable under
thelaw at the time it was committed. (Comparable to Article 20)
Nocorporal punishment or other punishment involving torture of any kindshall
be lawful. (Comparable to Article 21)
Everycitizen shall have a right to a writ ofhabeas [Link] right may
besuspended in the case of war or rebellion by an Act of the central
legislature or, if the legislature is not in session, by the Governor- General-
in-Council, and in such case he shall report the suspension to the legislature,
at the earliest possible opportunity for such action as it may deem fit.
(Comparable to Article 32 and 226 )
Thereshall be no state religion for the Commonwealth of India or for
anyprovince in the Commonwealth, nor shall the state directly or indirectly
endow any religion or give any preference or impose any disability on
account of religious belief or religious status. (Secularism advocated in the
Preamble of the Constitution)
Noperson attending any school receiving state aid or other public money
shallbe compelled to attend the religious instruction that may be given in the
school.( Minority rights ,Comparable to Article 28)
Noperson shall by reason of his religion, caste or creed shall be prejudiced
inany way in regard to public employment, office of power or honour and
the exercise of any trade or calling. (Right to employment without
discrimination; Comparable to Article 16)
Allcitizens are equal before law and posses equal civic rights.(Comparable
toArticle 14 )
Thereshall be no penal law whether substantive or procedural of
adiscriminative nature. (Comparable to Article 20 )
Noperson shall be punished for any act which was not punishable under
thelaw at the time it was committed. (Comparable to Article 20 )

3
 Human Rights in Indian Context

Nocorporal punishment or other punishment involving torture of any kindshall

be lawful. (Comparable to Article 21)
Everycitizen shall have a right to a writ ofhabeas [Link] right may
besuspended in the case of war or rebellion by an Act of the central
legislature or, if the legislature is not in session, by the Governor- General-
in-Council, and in such case he shall report the suspension to the legislature,
at the earliest possible opportunity for such action as it may deem fit.
(Comparable to Article 32 and 226)
Thereshall be no state religion for the Commonwealth of India or for anyprovince
in the Commonwealth, nor shall the state directly or indirectly endow any
religion or give any preference or impose any disability on account of religious
belief or religious status. (Secularism advocated in the Preamble )
Allcitizens have an equal right of access to, and use of, public roads,
publicwells and all other places of public resort.(Comparable to Article 15 )
Freedom of combination and association for the maintenance andimprovement
of labour and economic conditions is guaranteed to everyone and of all
occupations. All agreements and measures tending to restrict or obstruct
such freedom are illegal. (Comparable to a number of Directive principles
of State policy )
Nobreach of contract of service or abetment thereof shall be made a
criminaloffence. (Comparable to Article 21 )
Parliament shall make suitable laws for the maintenance of health and
fitnessfor work of all citizens, securing of a living wage for every worker,
the protection of motherhood, welfare of children; and the economic
consequences of old age, infirmity and unemployment and Parliament shall
also make laws to ensure fair rent and fixity and permanence of tenure to
agricultural tenants. (Comparable to a number of Directive principles of
State Policy)
Everycitizen shall have the right to keep and bear arms in accordance with
theregulations made in that behalf. (Right to Arms which does not exist in
the Constitution)
Menand Women shall have equal rights as citizens.1(Comparable to article 14)

4
 Human Rights in Indian Context

3. Meaning and Concept of Sarvodaya

The term Sarvodaya is indigenous in its origin. It is derived from the two-
different words. They are sarva and udaya. Sarva means all and udaya means rise.
In short, Sarvodaya means 'universal upliftment of all'. Mahatma Gandhi first
coined this term in 1908 while translating the work of John Ruskin's tract on
political economy 'Unto this Last'.
Gandhi employed this term in
order to give a modern basis to the ancient
of
Indian philosophy Sarvadharma-
samantva or Sarvabhuta
hita.
Conceptually, the philosophy of
sarvodaya aims at achieving the welfare
of all sections of people of a polity with
the aid and assistance of social and legal
institutions in a peaceful manner. Gandhi
referred this in short as true ahimsa. This
principle of Gandhi became popular, inculcated and propagated by a number of
leaders in India and abroad. It became a cornerstone for a number of contemporary
movements of Human Rights across the world.
Bhudan movements initiated by Acharya VinobaBhave, were the popular
movements aimed to achieve the concept of welfare of peasants and landless
people, and, received legal sanction.

1. [Link]

5
 Human Rights in Indian Context

After the death of Acharya Vinoba

Bhave, 'Jayaprakash Narayan' took the mantle on
his shoulders to achieve the concept of
Sarvodaya. He went a step further and
advocated that apart from Bhoodan movement,
the state need to empower villages as self-
sufficient units for the long-term sustainability of
economy of the nation. He felt that this is the Jayaprakash Narayan

most important aspect of Sarvodaya, and it is

the dream of
Gandhi who advocated this concept to achieve self-sufficiency of the country for
the all round development of economy and the people which in turn, augment
Human Rights of everyone without much interference of state.
The concept of Sarvodaya has its own mark in many forms in the
independent India. The various five-year plans, the number of schemes and
programmes initiated by government both at national and state level have centered
round it. The 73rd and 74th Constitutional amendments dealing with empowerment
of Gram Swaraj etc. are the philosophical tenets of Sarvodaya. However, lack of
commitment to implement the concept in its true perspective has brought in
number of problems in the contemporary era. In order to make India a self reliant,
vibrant democratic polity, it is the duty of every one of us to adhere strictly to the
principle of Sarvodaya. By practicing Sarvodaya, will not only wipe many of the
miseries that are currently affecting the polity but also help to bloom the rights of
all sections of people in order to realize the social justice philosophy advocated by
Dr. B. R. Ambedkar in the preamble of the Constitution.
4. A brief introduction to the Constitution
The Constitution of India was drafted under the supervision of the Constituent
Assembly. Originally, the Constitution Assembly consisted of 389 members. However
as a result of partition under Lord Mountbatten Plan on June 3, 1947, a separate
Constitutional Assembly was set up for Pakistan. As a result, the membership of
Constitutional Assembly of India was reduced to 299. The Chairman of the
Constituent Assembly was Dr. Rajendra Prasad who later became the first President of
independent India. In order to draft the Constitution, a Drafting Committee was set up
on 29th August 1947. The Chairman of Drafting Committee was Dr. B.R. Ambedkar.
Along with him , six other members were chosen to draft the Constitution. The other
members were Pandit Govind Ballabh Pant, K.M. Munshi, Alladi Krishnaswamy Iyer,
 Human Rights in Indian Context

N. Gopalaswami Ayengar, B.L. Mitter, MD Sadullah, D.P. Khaitan. Sir Benegal

Narsing Rau was appointed as the Constitutional Advisor to assist the Constitutional
Assembely and the Drafting Committee, who later became the First Indian to become a
judge of the International Court of Justice in 1952. Drafting committee completed task
of drafting constitution in 2 years, 11 months and 17 days. The draft prepared by the
drafting committee was later adopted by Constitutional Assembly on 26 th November,
1949 and the constitution came into force on 26th January 1950.1
The Constitution is described as quasi-federal by Prof. K.C. Wheare, an
American Constitutional expert since it has both federal and uni tary
features in its structure. In the words of Granville Austine, a famous Constitutional
jurist of India, 'the Indian Constitution is described as 'federal in times of peace and
unitary in times of war'. However strictly speaking, the constitution may be best
described as a co-operative federation. The constitution in all has 395 Articles and 12
Schedules.
5. Preamble
Preamble means, introductory statement of a constitution, which sets out in
detail the underlying facts and assumptions,
and explains its intent and objectives. Its
objective is to clarify the meaning or purpose of
the operative part of the text in case of an
ambiguity or dispute. According to the
preamble, the power of sovereignty lies solely
with the people of India and not in any
institution of the government created either by
constitution or by a statute. Hence, none of the
organizations of the government including the
Parliament of India created by constitution is
sovereign. According to the original
constitution, India described as Sovereign,
Democratic, Republic. The sovereignty lies with the people, and there is neither a
hereditary monarch nor any individual can claim authority permanently. This means a
republican constitution connotes that, the people through their representatives choose a
government including President of the country at regular periodical intervals as

1
For details see, [Link]
 Human Rights in Indian Context

stipulated by the constitution.

The words 'Socialist and Secular' inserted to preamble by Forty-second
Amendment to the constitution in the year 1976. Further, it substituted the
expression of 'unity of the nation' with the expression 'unity and integrity of the
nation'. Thus, the present Preamble reads as stated in the picture.
The Constitution of India was the first constitution to incorporate the ideals of
the Charter of the United Nations, the Universal Declaration of Human Rights and the
indigenous socio-political-economic, legal and cultural reflections of the country. The
Constitution of India was the first in the world to bifurcate the Justiciable (civil and
political rights as Fundamental Right) and non-Justiciable (economic, social and
cultural rights as Directive Principles of State Policy) human rights that declared in the
UDHR without any bifurcation. The Constitution of India in tune with the principles of
international law of human rights imposed the responsibility on the state for the
realization of the non-Justiciable rights through Article 38. This bifurcation and the
inclusion of the non-Justiciable rights in the constitution is the vision of Constituent
Assembly to provide a better life to the people wherein the socio-economic justice will
be available to all without any discrimination in tune with preamble of the constitution.
The philosophy of the fundamental rights advocated by the assembly is to ensure that
the liberty of citizens is to fulfill at all times in a realistic perspective and not a mere
promise. The assurance led the judiciary to further ensure a strict vigil that the goals of
the framers of the constitution are fulfilled without much deviance. Therefore, in a
nutshell, the Preamble not only represents the aspirations of people of India but also
ensures realization of the goals to match with that of the jurisprudential vistas of
International Law of Human Rights.

6. Fundamental Rights:
Jurisprudentially, the history of rights forms part of natural law which dates
back to evolution of mankind. However, the philosophical differences and the
suppression of individual rights by sovereigns across the world gave birth to the
modern concept of Human Rights with the adoption of Magna Carta in 1215. From
then onwards a number of declarations, conventions and constitutional documents
gave impetus for the development of human rights in municipal sphere. However,
the lack of recognition by international community led to a number of wars
destabilized not only the liberties of individuals, but also peace and security.
In order to ensure and to achieve peace and security, the prime concept of
international law, framers of the Charter of United Nations gave impetus to natural

8
 Human Rights in Indian Context

rights by naming them as Human Rights. In order

to further, reiterate its commitment to foster
respect for rights of individuals, in the year 1948,
United Nations adopted the Universal
Declaration of Human Rights. The mandate of
UDHR is to fix responsibility on nation-states
that the civil and political rights; economic,
social, cultural rights be guaranteed to people of
the world in order to bloom peace and security. It
also mandated on the individuals, in realizing the
Rights they need to observe duties without any
deviance through Article 29 of UDHR.
The constituent assembly by taking into
consideration of philosophical ethos of India and
that of international community incorporated the
philosophy of Human Rights in the constitution as Fundamental Rights and
Directive Principles of State Policy. The concept of Duties was not part of the
original constitution. However, it has been incorporated to the constitution through
42nd amendment in 1976.
The provisions related to fundamental rights (which described as
civil and political rights) are found in Articles 12 to 35, 226, 358 and
359 of the Indian Constitution. These fundamental rights are a mixture of
international philosophy of Human Rights, the Charter of the United Nations and
indigenous to suit the Indian polity. Among the various rights that has stated in the
Indian Constitution, some of them are equivalent to the International Declarations
and Covenants.
Here under, a comparative table is presented for an easy understanding of
Fundamental Rights which are equivalent to civil and political rights at the
international level.
 Human Rights in Indian Context

NAME OF THE EQUIVALENT /NEAR EQUIVALENT/ NEAR

FUNDAMENTAL COMPARABLE ARTICLES COMPARABLE ARTICLES
RIGHT AND IN UNIVERSAL IN INTERNATIONAL
ARTICLE IN DECLARATION OF COVENANT ON CIVIL AND
THE INDIAN HUMAN RIGHTS, 1948 POLITICAL RIGHTS, 1966
CONSTITUTION

Article 14: The Article 7: All are equal Article 14(1): All persons
State shall not before the law and are shall be equal before the
deny to any entitled without any courts and tribunals. In the
determination of any
person equality discrimination to equal criminal
before the law protection of the law. All charge against him, or of
or are his
entitled to equal rights and obligations in a
the equal protection suit
against any
protection of the discrimination in at law, everyone shall be
violation of this entitled to a fair and
laws within the Declaration public
and against any
territory of India incitement to hearing by a competent,
such discrimination. independent and impartial
tribunal established by
law.
The press and the public
may
be excluded from all or
part of
a trial for reasons of
morals,
public order (order public)
or
national security in a
democratic society, or
when
the interest of the private
lives
of the parties so requires,
or to
the extent strictly
necessary in
the opinion of the court in
special circumstances
where
 publicity would prejudice
the
interests of justice; but any
judgment rendered in a
criminal case or in a suit at
law shall be made public
except where the interest
of
juvenile persons otherwise
requires or the
proceedings
concern matrimonial disputes
or the guardianship of
children.

10
 Human Rights in Indian Context

Article 15(1): The Article 2: Everyone is Article 2: Everyone is entitled

State shall not entitled to all the rights and to all the rights and freedoms
discriminate freedoms set forth in this set forth in this Declaration,
against any citizen Declaration, without without distinction of any
on grounds only distinction of any kind, such kind, such as race, colour, sex,
of religion, race, as race, colour, sex, language, religion, political or
caste, sex, place language, religion, political other opinion, national or
of birth or any of or other opinion, national or social origin, property, birth or
them. social origin, property, birth other status.
or other status.

Article 16(1): Article 23 (1): Everyone has Article 25: Every citizen shall
There shall be the right to work, to free have the right and the
equality of choice of employment, to opportunity, without any of
opportunity for all just and favourable the distinctions mentioned in
citizens in matters conditions of work and to article 2 and without
relating to protection against unreasonable restrictions.
employment or unemployment. © To have access, on general
appointment to terms of equality, to public
any office under service in his country.
the State.

Freedom of Article 19: Everyone has the Article 19: (1) Everyone shall
speech and right to freedom of opinion have the right to hold opinions
expression- 19 (1) and expression; this right without interference.
(a) All citizens includes freedom to hold 2. Everyone shall have the
shall have the opinions without interference right to freedom of
right to freedom and to seek, receive and expression; this right shall
of speech and impart information and ideas include freedom to seek,
expression. through any media and receive and impart
regardless of frontiers. information and ideas of all
kinds, regardless of frontiers,
either orally, in writing or in
print, in the form of art, or
through any other media of
his choice.

11
 Human Rights in Indian Context

Article 19 (1)(b): Article 20: Article 21: The right of

All citizens shall 1. Everyone has the right to peaceful assembly shall be
have the right to freedom of peaceful recognized. No restrictions
assemble assembly and association. may be placed on the exercise
peaceably and 2. No one may be compelled of this right other than those
without arms. to belong to an association. imposed in conformity with
the law and which are
necessary in a democratic
society in the interests of
national security or public
safety, public order (ordre
public), the protection of
public health or morals or the
protection of the rights and
freedoms of others.
Art. 19 (1)(c): All Article 19: Everyone has the Article 19: (1) Everyone shall
citizens shall right to freedom of have the right to hold
have opinion opinions
the right to without
form and expression; this right interference.
associations include freedo 2. Everyone shall have the
or s m to hold right
unions. opinions without interference to freedom of expression; this
and to seek, receive and right shall include freedom to
impart information and ideas seek, receive and impart
through any media and information and ideas of all
regardless of frontiers. kinds, regardless of frontiers,
either orally, in writing or in
print, in the form of art, or
through any other media of his
choice.

Article 19 (1)(b): Article 20: Article 21: The right of

All citizens shall 1. Everyone has the right to peaceful assembly shall be
have the right to freedom of peaceful assembly recognized. No restrictions
a s s e m b l e and association. may be placed on the exercise
p e a c e a b l y a n d 2. No one may be compelled of this right other than those
without arms. to belong to an association. imposed in conformity with the
law and which are necessary in
a democratic society in the
interests of national security or
public safety, public order
 Human Rights in Indian Context

public health or morals or the

protection of the rights and
freedoms of others.
Art. 19 (1)(c): All Article 23(4): Everyone has Article 22(1):. Everyone shall
citizens shall have the right to form and to join have the right to freedom of
the right to form trade unions for the protection association with others,
including the right to form and
associations or of join trade unions for the
unions. his interests. protection of his interests.
Art. 19(1) : All Article 13 (1): Everyone has Article 12(1): Everyone
citizens shall have the right to freedom of lawfully within the territory of
the right : (d)to movement and residence a State shall, within that
move freely
throughout the within the borders of each territory, have the right to
territory of India; State. liberty of movement and
e) to reside and freedom to choose his
settle in any part of
the territory of residence.
India.
Art. 19 (1)(g) Article 23(1): Everyone has
All citizens shall the right to work, to free
have the right to choice of employment, to
practise any just and favorable conditions
profession, or to
carry on any of work and to protection
occupation, trade against unemployment.
or business.
Article 20 (1): No Article11 (2): No one shall be Article 15
person shall be held guilty of any penal 1. No one shall be held guilty
convicted of any offence on account of any act of any criminal offence on
offence except for
violation of a law or omission which did not account of any act or omission
in force at the time constitute a penal offence, which did not constitute a
of the commission under national or international criminal offence, under
of the Act charged law, at the time when it was national or international law,
as an offence, nor
be subjected to a committed. Nor shall a at the time when it was
penalty greater heavier penalty be imposed committed. Nor shall a
than that which than the one that was heavier penalty be imposed
might have been applicable at the time the than the one that was
inflicted under the
law in force at the penal offence was committed. applicable at the time when
time of the the criminal offence was
commission of the committed.
offence.

13
 Human Rights in Indian Context

Article 20 (2) No Article 14 (7) : No one shall

person shall be be liable to be tried or
prosecuted and punished again for an offence
punished for the for which he has already been
same offence finally convicted or acquitted
more than once in accordance with the law

Article 20 (3) No Article 14 (3): In the

person accused of determination of any criminal
charge against him, everyone
any offence shall shall be entitled to the
be compelled to following minimum
be a witness guarantees, in full equality:
against himself. (a) To be informed promptly
and in detail in a language
which he understands of the
nature and cause of the charge

Article 21 : No Article 3: Everyone has the Article 6 (1): Every human

person shall be right to life, liberty and being has the inherent right to
deprived of his life security of person. life. This right shall be
or personal liberty protected by law. No one shall
be arbitrarily deprived of his
except according life.
to procedure Article 9(1): Everyone has
established by law. the right to liberty and
security of person. No one
shall be subjected to arbitrary
arrest or detention. No one
shall be deprived of his liberty
except on such grounds and in

Article 21 A: Article 26 :
The State shall Everyone has the right to
provide free and education. Education shall be
compulsory free, at least in the
education to all elementary and fundamental
children of the age stages. Elementary education
of six to fourteen shall be compulsory
years in such
manner as the
State may, by law,
determine.

14
 Human Rights in Indian Context

Article 22 (1) : No Article 9: No one Article 9 (2) Anyone who is

person who is arrested shall be subjected to arrested shall be informed, at
shall be detained in arbitrary arrest, the time of arrest, of the
custody without being detention or exile. reasons for his arrest and shall
informed, as soon as be promptly informed of any
may be, of the grounds
for such arrest nor shall charges against him.
he be denied the right to (3) Anyone arrested or
consult, and to be detained on a criminal charge
defended by, a legal shall be brought promptly
practitioner of his before a judge or other officer
choice. authorized by law to exercise
(2) Every person who is judicial power and shall be
arrested and detained in entitled to trial within a
custody shall be reasonable time or to release.
produced before the (4) Anyone who is deprived of
nearest magistrate within his liberty by arrest or
a period of twenty-four detention shall be entitled to
hours of such arrest
excluding the time take proceedings before a
necessary for the journey court, in order that that court
from the place of arrest may decide without delay on
to the court of the the lawfulness of his detention
magistrate and no such and order his release if the
person shall be detained detention is not lawful.
in custody beyond the
said period without the
authority of a magistrate.

Article23 (1): Traffic in Article 8(3)(a) No one shall

human beings and begar be required to perform forced
and other similar forms or compulsory labour.
of forced labour are
prohibited and any
contravention of this
provision shall be an
offence punishable in
accordance with law.

15
 Human Rights in Indian Context

Article 25: (1) Article 18: Everyone has the Article 18: (1) Everyone shall
Subject to public right to freedom of thought, have the right to freedom of
order, morality conscience and religion; this thought, conscience and
and health and to right includes freedom to religion. This right shall
the other change his religion or belief, include freedom to have or to
provisions of this and freedom, either alone or adopt a religion or belief of his
Part, all persons in community with others choice, and freedom, either
are equally and in public or private, to individually or in community
entitled to manifest his religion or belief with others and in public or
freedom of in teaching, practice, worship private, to manifest his religion
conscience and and observance. or belief in worship,
the right observance, practice and
freely to profess, teaching.
practise and 2. No one shall be subject to
propagate religion. coercion which would impair
his freedom to have or to
adopt a religion or belief of
his choice.

Article 32: Article 8 : Article 2(3).:

(1) The right to Everyone has the right to an Each State Party to the present
move the Supreme effective remedy by the Covenant undertakes: (a) To
Court by competent national tribunals ensure that any person whose
appropriate for acts violating the rights or freedoms as herein
recognized are violated shall
proceedings for fundamental rights granted have an effective remedy,
the enforcement him by the Constitution or by notwithstanding that the
of the rights law. violation has been committed
conferred by this by persons acting in an
Part is guaranteed. official capacity; (b) To ensure
that any person claiming such
a remedy shall have his right
thereto determined by
competent judicial,
administrative or legislative
authorities, or by any other
competent authority provided
for by the legal system of the
State, and to develop the
possibilities of judicial
remedy.

16
 Human Rights in Indian Context

According to provisions of the constitution, the fundamental rights which

are equivalent to that of the civil and political rights of international law of human
rights, they constitute as 'claim rights'. The claims can be made against the state
and its various agencies. These claims can be made by individuals and by legal
persons (institutes or agencies created by Law). However, the legal persons have
only limited rights that are guaranteed by law.
For the purpose of claim, the rights guaranteed under the constitution, a
state constitutes, the government of the Union and the States or any agency or an
institute that receives funding by the government under Article 12 of the
Constitution of India as interpreted by the Supreme Court in Ajay Hasia v. Khalid
Mujib Sehravardi (AIR 1981 SC 487).
Article 13 is the cornerstone of all fundamental rights. This article imposes
a restriction on the state not to enact any law that constitutes an infringement to
fundamental rights. This article empowers the judiciary to keep a vigil on the acts
of state and its agencies to nullify any law, which brings in any kind of
unreasonable restriction on the free exercise of fundamental rights.
Right to Equality:
Equality constitutes an important
ingredient for the free exercise of
fundamental rights. This means all people
are equal in the eyes of law and have equal
protection of laws. According to Dicey,
though a section of people may enjoy certain
preferential treatment for justifiable reasons,
the concept of equality cannot be construed
as discriminatory in nature.
Equal protection of laws connotes that all persons placed in a similar
situation will have a nexus with the purpose for which the law is enacted.
Accordingly, the concept of equal protection of laws does not mean that the same
laws will be applicable to all persons on an equal footing. The concept of equality
under Article 14 is applicable to citizens and as well to foreigners.

17
 Human Rights in Indian Context

The concept of right to equality is dealt

under Articles 14 to 18 of constitution. In these
articles, certain concessions are extended to
various sections of people taking into
consideration of their socio, economic, politico,
cultural backgrounds. The concessions extended
to those groups of people are applicable only to
them. The philosophy behind these concessions
is to uplift the disadvantaged groups on par with
other socially developed groups. This type of concessions extended to various
groups is fully justified under the concept of equality. Equality being a wider
concept of law, laws can be applied only between equals on an equal footing but
not between equals and unequal.
Prohibition of Discrimination under Article 15 :
This article empathetically endorses the perception of
equality before law as stated under article 14. At the same
time, it clearly justifies concessions that are extended to
women, children, socially and educationally backward classes
of citizens and scheduled castes and scheduled tribes as
reasonable classification to wipe out their inequalities in
applying the spirit of equality before law and equal protection
of laws. Therefore the concessions extended to various groups of people in no way
constitutes discriminatory.
Equality of Opportunity in matters of public
employment under Article 16:
This article is a further extension to meet
the requirements of equality under article 14.
According to this article, all the citizens should
be given an equal opportunity in public
employment without any kind of discrimination.
However, concession extended to various groups
by state under this article no way constitutes
discrimination to the general philosophy of
equality among the citizens. At the
 Human Rights in Indian Context

same time it has to be remembered, this article in no way confreres a right on

citizens to procure a job on a guaranteed basis.
Abolition of Untouchability under Article 17:
This article is an elaboration of the concept of equality guaranteed under
article 14. Though there is no definition, what constitutes untouchability, in the
Constitution and as well as in the Protection of
Civil Rights Act of 1955 the word 'Untouchable'
signifies any kind of discriminatory practices
that are adopted by a section of people to any of
disadvantaged sections of people in society.
This article is similar to the 13th amendment of
the Constitution of America, which abolished
Slavery, and in tune with the spirit of
International law of Human Rights.
Abolition of Titles under Article 18:
According to this article, no citizen of the country is permitted to receive any
title from any foreign country. However, there is no bar on the Government of India to
confer various titles and honors to its citizens based on their performances in various
fields including defense services. At the same time none of the employs of government
while in service, are entitled to receive any kind of emolument or any kind of job from
or under any foreign state without the prior sanction of the President of India.
Right to various Freedoms under Article 19 :
According to Supreme Court of India, the rights that are guaranteed under
Article 19 as Natural Rights, since they are inherent with the human personality
and to describe the free will and character of a citizen in a democratic polity. (State
of WestBengal v. Subodh Gopal Bose (AIR 1954 SC 92).
This Article confers on all the citizens; (a) Freedom of
Speech and Expression; (b) Assemble peacefully
without arms; (c) move freely throughout territory of
India; (d) to reside and settle in any part of the territory
and (d) to practice any profession or to carry any
occupation, trade or business. In the original
Constitution, right to property was also part of this

19
 Human Rights in Indian Context

right. However, the 44th amendment of the constitution in 1978 has converted it
into a legal right than a fundamental right under Article 300 A.
The difference between the fundamental right and legal right is that a
fundamental right cannot be taken away by the state under the garb of law. A legal
right can be taken away by the state under the authority of law by paying
appropriate compensation for such deprivation. However, the judiciary is
empowered to examine whether such deprivation is legal or not.
In the exercise of above freedoms, the citizens have onerous responsibility
not to impair the freedom of others, and the government is empowered to impose
reasonable restrictions if it deems necessary in the interest of other right holders or
for the security of the nation.
Right to Freedom of person
Articles 20 to 24 constitute as right to freedom of person. The provisions
under these various articles constitute as the basic rights in order to receive the
equal treatment and equal protection of laws under Article 14 of the Constitution.
The rights of Freedom of person are available to all persons and not confined to
cover alone the rights of citizens of India. The above articles will be examined in
subtle perspective.
a) Freedom of Protection in respect of conviction of
offences under Article 20
According to Article 20, no person is
punishable by state without following the
procedure laid down by law. The protection
under this article is applicable to all persons,
which means, both natural and legal persons.
The protection available to persons under this
article is related to matters of criminal law.
Under this article, no person can be punishable
until and unless the acts of such persons
constitutes as a crime under various laws of the land. This article guarantees that, a
court cannot try or punish any person twice for a same offence. In the language of
law it is referred to as 'Double Jeopardy'. It further guarantees that no accused
person shall be compelled to be a witness in his own case.

20
 Human Rights in Indian Context

b) Protection of Life and Personal Liberty under Article 21

This article is the cornerstone amongst all the fundamental rights. This
Articlenot only extends protection from the unauthorized legal acts of the state, but
at the same time extends to cover a wide variety of rights that are necessary for a
natural person to lead a life with minimum amount of decency
and decorum. This article guarantees a natural person a
number of rights that are guaranteed under the various
provisions of fundamental rights and directive principles
which need to be honoured and respected by the state in
order to ensure to lead a life with dignity.
The 44th amendment of the Constitution and
the innumerable number of judgments of the Supreme
Court, the Parliament of India made it impossible for the state to take away this
right, and a number of corresponding rights, that are guaranteed under various
provisions of the constitution, even in an internal or external emergency through
44thAmendment in 1978.
Interpreting the provisions of this article in tune with the spirit of the
preamble of the constitution, the philosophy of international law of Human Rights,
the Judiciary has brought in a number of rights under the purview of Article 21.
The decisions of the judiciary in a catena of cases led the state to implement
policies and to enact laws guarantying the various fundamental rights such as Right
to Health, Right to Shelter, Right to Pollution free atmosphere, Right to Livelihood,
Right to Privacy, Right to Education, Right to Information, et al., and sweeping
reforms in the area of criminal jurisprudence.
After the decision of the Supreme Court in Unnikrishnan v. State of
AndhraPradesh (1993 SCC 1 645) guarantying Right to Education as a Fundamental
Right, ittook a long time for the Parliament to insert it in the Constitution under Article
21. It added a new clause (A) to Article 21 through the 86th amendment Act in 2002.
Accordingly, it is an obligation of the state as per Article 21A to provide free and
compulsory education to all the children of the country without any discrimination
between the age group of 6-14 basing on its financial capacity.
c) Protection against Arrest and Detention under Article 22
This is an important right to have protection of the citizens from the inimical
acts of the state. It empowers a person to know the grounds of arrest, in case if Police

21
 Human Rights in Indian Context

wants to arrest a person on any criminal charge. It further empowers to consult and
defend the innocence of a person through an advocate, and have the right to be
produced before the Magistrate Court within 24 hours from the time of arrest.
However, in the case of alien enemies there is no right conferred on persons to know
the grounds of their arrest as a preventive detention measure. In case of arrest of any
person on charges of terrorism, a person can be detained under police custody up to a
period of 3 months. If the custody needs to be extended, it should be done only under
the supervision of an advisory board constituted under such law or under the
supervision of not less than a High Court. This right has to be read in conjunction with
a number of rights in the constitution. Basing on a number of judgments, during the
period of detention even in case of terrorism or charges of extortion a detainee cannot
be denied the basic fundamental rights and need to be provided including the
reasonable facilities in conjunction with right to life and liberty as guaranteed under
Article 21. Though, the right does confer a person to defend himself or herself on the
grounds of arrest, by police, the constitution nor the criminal laws of India define the
term what constitutes an 'arrest' in the realm of law.
d) Right against Exploitation under Articles 23 and 24 :
This important right has adopted by the constituent
assembly basing on the jurisprudential vistas of
international law of Human Rights. According to this
right, no person can be compelled to engage in any work
that degrades the dignity and constitutes as a contravention
to life and liberty of an individual. For example, works
like forced labour, manual scavenging, prostitution,
trafficking etc. It also guarantees the children not to be
employed in work below the age of fourteen, which
deprives the tender age of childhood. A number of
conventions, covenants, national legislations, policies of
the government and judgments of the judiciary clearly advocated that this right
need to be protected at all times, and a duty has been casted both on the state and
on the people to keep a vigil and watch against the breach of this right. At the same
time, the state is empowered to extract compulsory service for public purposes
without any discrimination either to defend the sovereignty of nation or in times of
major calamities.

22
 Human Rights in Indian Context

Right to Freedom of Religion and Cultural, Educational

Rights and Rights of minorities under Articles 25 to 30
Being a land of many religions, in tune with the
philosophy of the Preamble of constitution as a secular state,
the state has no religion and all religions are equal in the eye
of law. These articles advocate citizens to profess, practice
and propagate the religious practices and sentiments of any
religion without hampering the rights and sentiments of other
religions. People of every religion are free to establish and
maintain any institution for religious and charitable purposes
in accordance with the provisions of various laws of the
country. No government institution or educational institution
or institutions funded and managed wholly or partially with the support of the state at
no point of time advocate or instruct any religious activity. However, any institution
established for the promotion and protection of rights of minorities can impart such
education which may help them to protect their cultural perspectives is permissible
under Articles 29 and 30 or any other law that is enacted from time to time.
In spite of the recognition of the rights of minorities by international law of
human rights and as well by the constitution of India; it is surprising to note that
the term minorities is confined only to religious perspective and no definition is
provided to define what constitutes a 'minority'.
Right to Constitutional Remedies under Articles 32 and 226
In tune with jurisprudential perspectives of
law that every right that has been guaranteed under
law need to have a remedy. Accordingly,
constitutional framers empowered the Judiciary,
(especially the Supreme Court and High Courts)
under Articles 32 and 226, to issue various directions
in the form of a writ to prevent the encroachment or
breach of the rights. After the 44th Amendment of the
Constitution in 1978, and from a number of
judgments of the judiciary, it is an undeniable fact that even in emergency the right
to move to the court to seek remedy for the infringement of a right by the state or
its agencies cannot be suspended as it constitutes a violation to the bedrock right of
life and liberty of an individual under Article 21.

23
 Human Rights in Indian Context

Writ means a judicial order commanding the party to whom it is addressed

to perform or cease to perform a specified act. Accordingly, the five writs that have
been recognized by constitution are as follows:
Habeas Corpus:
‘Habeas Corpus ad subjiciendium’ literally means to produce the body
beforea court or to answer a court. Under this writ, if a person is wrongfully
arrested and not produced before a court of law within the stipulated period of 24
hours, the person detained or a friend or a relative could move the court to seek a
direction of writ of Habeas Corpus. If the court is convinced with the grounds
stated in the application, it may direct authorities of police and the state to produce
the person before the court. In case if a person is arrested on grounds of preventive
detention, the court is expected to have an answer from the respective authorities,
whether such detention is prima facie legal or not.
A writ of Habeas Corpus cannot be moved or granted, if a person is properly
taken into custody under the authority of a court of law. If a court refuses a petition of
Habeas Corpus, a person cannot file successive applications to the same court.
The Mandamus:
It literally means a command issuing from the court, directed to any person,
corporation or inferior court or authority to an act or refrain from an act, which
falls within its jurisdiction. The issue of writ of mandamus is only in case of parties
whose fundamental rights are directly and substantially invaded or are in eminent
danger of being so invaded. The party against whom the mandamus is sought and
such duty must be of a public nature issues it only when the applicant shows that
there resides in him a legal right to the performance of a legal duty
Prohibition:
Prohibition is a judicial writ compelling the courts entrusted with judicial
duties to keep within the limits of their jurisdiction. This writ is issued only at the
beginning of the hearing of a matter by the inferior court with a view to preventing
the court from exercising jurisdiction, which it does not possess. If the court has
decided the matter, this writ will not lie.
Quo Warranto:
This writ issued against a person who holds a public office to inquire
whether he posses the authority or not. The court has discretion to grant or to refuse
the writ. It will not be issued against constitutional functionaries.

24
 Human Rights in Indian Context

Certiorari:
The court issuing this writ acts in its supervisory jurisdiction. It is only
concerned with the conduct of the trial before the inferior court and whether the
court has followed the law or not. Hence, it can be said that the writ of certiorari
can only be issued when there is error of law apparent on the face of record and not
when there is error of fact.
7. Directive principles of the state policy
“In my judgment, the directive principles have a great value;
for they lay down that, our ideal is economic democracy. Because
we did not want merely a parliamentary form of government to be
instituted through the various mechanisms provide in the
Constitution, without any direction as to what our economic ideal,
as to what our social order ought to be, we deliberately included
the Directive Principles in our Constitution.” - Dr. B. R. Ambedkar
The Directive Principles of State Policy are as important as Fundamental
rights. These principles are comparable to that of the Economic, Social and Cultural
rights of International Law of Human Rights. The Indian judiciary described these
principles as forerunner of the UN Convention on Right to Development of United
Nations (Air India Statutory Corporation V United Labour Union,
AIR 1997 SC 645). As they stand on par with the international Philosophy, these rights
are addressed to the State to enact laws envisioning the economic, social, political and
cultural Perspectives of the polity in order to enable the citizenry to enjoy their
fundamental rights on an equal footing. In the legal sphere these principles constitute
as non-justiciable rights, which means their derogation by state cannot be challenged in
the courts of law. However, in Minerva Mills Case ( 1989) 3 SCC 625, Justice
Bhagwati held that if the non-implementation of these principles by state has any
bearing on the free exercise of fundamental rights, judiciary can direct the state to take
steps for their enforcement, as they create obligations to the state to enact legislation
giving effect to these principles. But, this terminology of the court cannot be
considered that their non-adherence by state in all cases can be freely challenged in
court of law like the fundamental rights. These principles are enshrined in part IV,
Articles 36 to 51 of the Indian Constitution. The Irish Constitution was the spirit
behind these principles. Here under, a comparative table is presented for an easy
understanding of directive principles of state policy which are equivalent to social,
cultural & economic rights at the international level.
 Human Rights in Indian Context

Constitutional Corresponding provision in Corresponding provision in

provisions regarding the Universal Declaration of International Covenant on
Directive principles Human Rights, 1948 Economic, Social and
of State policy Cultural Rights, 1966

Article 39 (a) : The Article 25: (1) Everyone has Article 11 1. The States
State shall, in the right to a standard of Parties to the present
particular, direct its living adequate for the health Covenant recognize the
policy towards and well-being of himself right of everyone to an
securing— (a) that and of his family, including adequate standard of
the citizens, men and food, clothing, housing and living for himself and his
women equally, have medical care and necessary family, including adequate
the right to an social services, and the right food, clothing and
adequate means of to security in the event of housing, and to the
livelihood unemployment, sickness, continuous improvement
disability, widowhood, old of living conditions
age or other lack of
livelihood in circumstances
beyond his control.

Article 39 : The State Article 23 (2) Everyone, Article 7

shall, in particular, without any discrimination, The States Parties to the
direct its policy has the right to equal pay for present Covenant
towards securing (d) equal work recognize the right of
that there is equal pay everyone to the enjoyment
for equal work for of just and favorable
conditions of work which
both men and women. ensure, in particular (a)
Remuneration which
provides all workers, as a
minimum, with:(i) Fair
wages and equal
remuneration for work of
equal value without
distinction of any kind, in
particular women being
guaranteed conditions of
work not inferior to those
enjoyed by men, with
equal pay for equal work;

26
 Human Rights in Indian Context

Article 39(f) : Article 10 :

Children are given The States Parties to the
opportunities and present Covenant recognize
facilities to develop that : 3. Special measures of
in a healthy manner protection and assistance
and in conditions of should be taken on behalf of
freedom and dignity
and that childhood all children and young
and youth are persons without any
protected against discrimination for reasons
exploitation and of parentage or other
against moral and conditions. Children and
material young persons should be
abandonment. protected from economic
and social exploitation.
Their employment in work
harmful to their morals or
health or dangerous to life
or likely to hamper their
normal development should
be punishable by law. States
should also set age limits
below which the paid
employment of child labour
should be prohibited and
punishable by law.
Art. 41. The State Article 23 : Everyone has Article 6 : 1. The States
shall, within the the right to work, to free Parties to the present
limits of its choice of employment, to Covenant recognize the
economic capacity just and favorable conditions right to work, which
and development, of work and to protection includes the right of
make effective against unemployment. everyone to the opportunity
provision for to gain his living by work
securing the right to which he freely chooses or
work, to education accepts, and will take
and to public appropriate steps to
assistance in cases of safeguard this right
unemployment, old
age, sickness and
disablement, and in
other cases of
undeserved want.

27
 Human Rights in Indian Context

Art.42 : The State Article 7 :

shall make provision The States Parties to the
for securing just and present Covenant recognize
humane conditions the right of everyone to the
of work and for enjoyment of just and
maternity relief. favorable conditions of work
which ensure, in particular:
(b) Safe and healthy working
conditions;
(d ) Rest, leisure and
reasonable limitation of
working hours and periodic
holidays with pay, as well
as remuneration for public
holidays
Article 43 : Article 7(2) The States
The State shall Parties to the present
endeavour to secure, Covenant recognize the right
by suitable of everyone to the enjoyment
legislation or of just and favorable
economic conditions of work which
organisation or in ensure, in particular:
any other way, to all (i) Fair wages and equal
workers, remuneration for work of
agricultural, equal value without
industrial or distinction of any kind, in
otherwise, work, a particular women being
living wage, guaranteed conditions of
conditions of work work not inferior to those
ensuring a decent enjoyed by men, with equal
standard of life and pay for equal work;
full enjoyment of
(ii) A decent living for
leisure and social themselves and their families
and cultural in accordance with the
opportunities and, in provisions of the present
particular, the State Covenant;
shall endeavor to (d) Rest, leisure and
promote cottage reasonable limitation of
industries on an working hours and periodic
individual or co holidays with pay, as well
operative basis in as remuneration for public
rural areas holidays

28
 Human Rights in Indian Context

Art.43A: The Article 8 :

State shall take 1. The States Parties to the
steps, by suitable present Covenant undertake to
legislation or in ensure: (a) The right of
any other way, to everyone to form trade unions
secure the and join the trade union of his
participation of choice, subject only to the
workers in the rules of the organization
management of concerned, for the promotion
undertakings, and protection of his
establishments or economic and social interests.
other No restrictions may be placed
organisations on the exercise of this right
engaged in any other than those prescribed by
industry. law and which are necessary
in a democratic society in the
interests of national security
or public order or for the
protection of the rights and
freedoms of others;
Art.45 : The State Article 26(1):Everyone has Article 13:
shall endeavor to the right to education. 2. The States Parties to the
provide, within a Education shall be free, at present Covenant recognize
period of ten years least in the elementary and that, with a view to achieving
from the fundamental stages. the full realization of this right:
(a) Primary education shall be
commencement of compulsory and available free
this Constitution, to all.
for free and
compulsory
education for all
children until they
complete the age
of fourteen years.

29
 Human Rights in Indian Context

Art. 47: The State Article 25: (1) Everyone has Article 11 :
shall regard the the right to a standard of 1. The States Parties to the
raising of the level living adequate for the health present Covenant recognize
of nutrition and and well-being of himself the right of everyone to an
the standard of and of his family, including adequate standard of living for
living of its food, clothing, housing and himself and his family,
people and the medical care and necessary including adequate food,
improvement of social services, and the right clothing and housing, and to
public health as to security in the event of the continuous improvement
among its primary unemployment, sickness, of living conditions.
duties and, in disability, widowhood, old
particular, the age or other lack of
State shall end- livelihood in circumstances
eavour to bring beyond his control
about prohibition
of the consump-
tion except for
medicinal
purposes of
intoxicating drinks
and of drugs which
are injurious to
health.
Art.49 : It shall be Article 27 (1) : Everyone Article 15 (1) : The States
the obligation of has the right freely to Parties to the present Covenant
the State to protect participate in the cultural recognize the right of
every monument or life of the community, to everyone:
place or object of enjoy the arts and to share (a) To take part in cultural life;
artistic or historic in scientific advancement
interest, [declared and its benefits.
by or under law
made by Parliament]
to be of national
importance, from
spoliation,
disfigurement,
destruction,
removal, disposal
or export, as the
case may be.

30
 Human Rights in Indian Context

Definition of State (Article 36):

In this article, the state need to be defined as
defined in Article 12 of the constitution. It is left to the
judiciary to interpret the provisions of constitution to
define a state in each case if necessary in the
implementation of directive principles of state policy.
Applicability of the Principles (Article 37)
According to the provisions of the constitution and the philosophy of
International Covenant on Economic, Social and Cultural rights, the principles
stated in this part are only directives to the State. The implementation of these
principles depends on various aspects. Further, these being non-justiciable rights,
in general they cannot be challenged in a court of law in case if the state is not
adherent to any directive.
State to Secure a Social Order for the Promotion of Welfare of the People
and to certain principles to be followed by State (Articles 38 and 39) :
Articles 38 and 39 of the Constitution advocate
the concept of distributive justice. Distributive justice is
though a jurisprudential concept, in the constitutional
and human rights perspective it is the duty of state to
achieve the basic principles of equality amongst the
people of the country and try to remove any inequality.
Accordingly, the state is empowered to enact any
specific legislation to remove inequality and provide
such facilities that are necessary to uplift the unequals in a comprehensive manner.
Basing on the above provisions, the Government of India and the State
Governments enacted a number of legislations to remove inequalities and extended
a number of concessions to many sections of the people to empower them on par
with other developed sections of the polity.
Article 39 directs the state to adopt policy measures to enact specific
legislations to empower people economically in order to meet the requirements of life
and liberty. In this regard, the state need to take special care with respect to certain
sections of people who are disadvantaged groups and to enact legislations and adopt
policy measures that their welfare need to be augmented without any adverse impact

31
 Human Rights in Indian Context

of economic necessity. The Union of India and the State Governments in the last six
decades enacted a number of specific legislations to augment the rights of the people in
general and specific legislations in particular to protect those disadvantaged sections of
people. The principles further enforce the right to equal justice and free legal aid as a
part of Article 21 of the constitution to ensure life and liberty.
Organization of Village Panchayats (Article 40)
In tune with the policy of decentralization of governance from grass-root
levels, Article 40 directs the state to take steps to empower village panchayats with
necessary powers to achieve self sufficient governance by the people. As per the
provisions of this article, Panchayat raj system has been introduced in the country.
In order to give effect to the provisions, Part IX of the Constitution, the Seventy
Third Amendment of the Constitution Act, 1992 brought in a number of changes to
empower the grass root level administration and also introduced reservations to
Women and Scheduled Castes and Tribes.
Right to work, to education and to public assistance in
certain Cases (Article 41)
According to Article 41 of the Constitution, it shall be
duty of state within its economic capacity and development
provide right to work, to education and to public assistance in
certain cases. In this regard, through Eighty Sixth
Constitutional Amendment Act in 2002, the State made it a
fundamental right giving effect to the judgment of the Supreme
Court in Unnikrishnan V State of Andhra Pradesh delivered
in 1992. Apart from this, the Union and States adopted a
number of policies to provide public assistance in cases of
unemployment, old age, sickness and disablement, etc.
Provisions for just and humane conditions of work and
maternity relief (Article 42)
As per provisions of Article 42 of the constitution, it is the duty of state to
provide human conditions of work and maternity relief. Interpreting the provisions of
the article, the Supreme Court inD. Bhuvan Mohan Patnaik V State of
AndhraPradesh (1975) 3 SCC 185; held that living conditions in jails for convicts
and undertrail prisoners are also need to be safeguarded by the state. The Parliament
enacted a Maternity benefit Act in 1961 giving effect to the provisions of this article.
 Human Rights in Indian Context

Living Wage, for Workers (Article 43)

According to Article 43, the state need to take steps to ensure the workers
of all types both in urban and rural areas to lead a life with minimum standards and
to enjoy leisure and to able to meet the social and cultural opportunities. According
to this article, a living wage includes food, shelter, clothing, provision for
education of children, insurance etc. In tune with the policy of this article, both the
Union and States enacted a number of legislations to extend a number of facilities
to workers working in various avocations.
Uniform Civil code for Citizens( Article 44)
Article 44 of the Constitution advocates the state to adopt a Uniform law to
govern all personal laws on an equal footing. The same was reiterated by the
Convention on the Elimination of the Discrimination of the Women, 1979
(CEDAW). Accordingly, the state initiated steps to codify the personal laws of all
religions. However, it could not do so for a variety of reasons better known to the
state. It has only codified the Hindu law, Parsi and Christian Marriage and Divorce
laws. In some of these laws to remove discrimination women are given equal right
to inheritance of property. In Shah Bano Case, (Mohd., Ahmed Khan V
ShahBano Begum(1985) 2 SCC 556), the Supreme Court laid down norms to
claim maintenance for Muslim women under section 125 of Criminal Procedure
Code. The judiciary in a number of cases suggested that there should be a uniform
civil code. (Sarla Mudgal V Union ofIndia 1995 3 SCC 635).
Provisions for early childhood care and education to Children below
the age of six years (Article 45)
Article 45 advocates that the state need to take steps to protect childhood from
malnutrition, poverty and other communicable diseases and educate all children below
six years. Though the state enacted a number of legislations and adopted policy
formulations, it is still a distant dream for millions of children to have a safe and
decent environment to live and grow. However, as stated above, the state in 2002 took
steps to ensure right to education compulsorily to all children up to the age of 14 years.
Promotion of education and economic interests of SC/STs
and other Weaker Sections (Article 46)
It is the duty of the state according to Article 46 to take special care with respect to
educational and economic interests of weaker sections of the polity, and especially, the
Scheduled Castes and Scheduled Tribes to protect from social injustice and all

33
 Human Rights in Indian Context

forms of exploitation. In tune with the provisions of the article, the Union and
States adopted a number of policies and enacted suitable legislations to augment
rights of people of these sections.
Duty of State to raise the level of nutrition and the Standard
of living and to improve public health (Article 47)
The state has a duty according to Article 47, to take steps to evolve policy
formulations in order to improve the nutritional level and standard of living of the
people. It is also duty of the state to improve the public health of citizens and ban the
consumption of intoxicating drinks and drugs which are injurious to health. In a
number of cases, the judiciary supported the move of the legislatures to ban the sale of
intoxicating drinks and drugs. However, since liquor business is revenue generating
activity, the state many a time is lenient to bring in complete prohibition of liquor sale.
Prohibition of Slaughter of Cows and Calves (Article 48)
According to Article 48, it is the duty of state to promote agriculture and
animal husbandry by employing the modern technical and scientific means. It is
also the duty of state to preserve breeds and prohibit the slaughter of cows and
calves and other milch and draught cattle. In this regard, legislations passed by
Union and States have been upheld as valid by the Judiciary in a number of cases.
Protection and Improvement of environment and
safeguarding of forests and wild life (Article 48 A)
According to Article 48A, an obligation is
imposed on the state to protect the ecology and
environment and to take steps to safeguard the
forest and wild life of the country. In this regard, a
number of legislations have been enacted by the
Union and States. The Environmental Protection
Act 1986 is one of the major legislations enacted
by the Parliament. In spite of laws enacted by the
state, the executive action
is very slow in this area. It is the duty of the people of the country also to extend
their cooperation to the State to protect the environment and forests and wild life.
In spite of the mandate, the easygoing approach of the state led to number of
disasters in the last sixty years which severely affected the human rights of people.

34
 Human Rights in Indian Context

Protection of monuments and places and objects of

national Importance (Article 49)
As per article 49, the state has a duty to
take steps to protect every monument or place or
object of artistic or historic interest. In this
regard, such monuments and objects need to be
declared by the state as property of the nation
and protect them from spoliation, disfigurement,
destruction, removal, disposal or export. The
Parliament in 1951 enacted the Ancient and
Historical Monuments and Archeological Sites and Remains Act 1951 and declared
many of such sites as national importance and property.
Appointment of Judges in Higher Judiciary (Article 50)
One of the important features of any democracy is an independent judiciary.
It is only an independent judiciary without the interference of Legislature and
Executive alone could protect and promote the human rights of the citizens guaranteed
under the constitution. The constitutional framers taking into consideration of this
important feature of a democratic constitution, and rallying behind the Indian national
Congress demand for a separation in 1886. Apart from other provisions of the
constitution, through Article 50 direct the state to separate the judiciary from the
executive. However, at the lower level of judiciary, the District Magistrate was
combined with the powers of Executive and Judiciary. The Government through the
Criminal Procedure Code 1973 achieved complete independence of the Judiciary by
transferring the judicial powers of the district administration to judiciary. However,
financial independence to judiciary is still an important aspect which needs to be
achieved. The National Commission to Review the Working of the Constitution also
strongly advocates such independence will enhance the full autonomy of judiciary
from its dependence on the executive for its financial needs.
Promotion of International Peace and Security (Article 51)
India being a member of 'comity of nations' according to Article 51 of the
Constitution, it shall be duty of the state to poster respect for international relations and as
well as to honour the principles of international law and treaty obligations. It has to take
steps to settle its disputes with other countries in a peaceful manner by resorting to

35
 Human Rights in Indian Context

arbitration. However, according to article 253 of

the Constitution, treaties entered by India will not
be operative automatically, until and unless the
Parliament of India passes a law giving effect to
such treaty or agreement. However, over the years,
the judiciary has been interpreting the provisions of
treaties relating to human rights. It held that the
treaties of human rights can be implemented and
interpreted for upholding the rights of citizens even in the absence of legislation, if
such treaty or agreement is not inconsistent with the law of the land in force.
(VisakhaV State of Rajasthan 1997 6 SCC 241).
The brief discussion in the preceding pages on fundamental rights and
directive principles amply makes it clear that the Constitution has a balancing
approach to nurture the ideals of democracy and social philosophy in promoting
human rights of the citizens. As rightly observed by Justice Hedge, in a strict legal
perspective the fundamental rights themselves constitutes as negative in character
imposing duties on the state not to do certain wrongs which will lead to breach of
human rights. The Directive Principles of State Policy are positive in character as
they mandate the state to take steps to promote the advancement of the people and
the society in various aspects. This being the reason, the original constitution did
not explicitly mention the aspect of fundamental duties.
8. Fundamental duties(Article 51A)
From ancient to modern times, the philosophical and legal approach of
India was based on the concept of duty. The same was advocated even in the
jurisprudential vistas of international law of human rights through article 29 of the
Universal Declaration of Human Rights which advocates that the rights enshrined
therein cannot be realised without fulfilling the duties. Since the concept of right is
coupled with duty, the framers of the constitution of India did not specifically
advocate duties in the constitution. However, the Supreme court of India, in
Chandra Bhavan Boarding &Lodging V. State of Mysore in 1969
(AIR 1970 SC 2042) advocated the concept ofduties as part of the constitution.
The Forty Second Amendment Act to the constitution in 1976 inserted a new
Article 51-A advocating fundamental duties which need to be discharged by citizens

36
 Human Rights in Indian Context

of India. However, it is silent as to their enforceability in a court of law or punishment

for their breach. Accordingly, the Supreme Court in AIIMS Student's Union V AIIMS
(2002) 1 SCC 428, held that they are not enforceable through a writ for their breach on
par with that of fundamental rights. The duties enlisted in Article 51 –A are as follows:
(a) To abide by the constitution and respect its ideals and
institutions, the National Flag and the National Anthem.
From this provision it is clear that all citizens have a duty to foster respect and
abide by the constitution. As per the provisions of Emblems and Names (Prevention of
Improper Use) Act 1950 and Prevention of Insult to National Honour Act 1971, until
1995, private individuals were prohibited to hoist the National Flag. However, in
Naveen Jindal V. Union of India (60, 1995, DLT516), the Delhi High
Court held thatevery citizen has a fundamental right to hoist the National Flag even in
private premises without insulting it. In Bijoe Emmanuel and others V State
of Kerala andothers, (AIR 1978 SC 748) the Supreme Court held that
when national anthem wassung, anybody stands silently without joining the chorus in
singing the National Anthem does not constitute violation of disrespect to national
anthem.
(b)To cherish and follow the noble
ideals which inspired our national
struggle for freedom :
By this provision, the values, morals that the
various social movements advocated to fight against
a number of evils need to be practiced in order to
eliminate the bad practices and bring in social
harmony as per the philosophy of the constitution.
(c) To uphold and protect the sovereignty, unity and
integrity of India
According to this provision every citizen of the country wherever they
reside they need to follow the principles of law and extend their full support to
uphold the sovereignty and integrity of India. From this provision all citizens have
a duty to refrain from any type of statements , comments against the nation draw
the national map in a mutilated fashion. In plain language, no adverse comments or
propaganda against the country and its political borders is permitted.
 Human Rights in Indian Context

(d) To defend the country and render national service when

called upon to do so
According to this provision, the state has a right to seek the assistance of
people to defend its sovereignty either in times of war or national calamities. If
such call is given, the citizens have duty to render their assistance to the state that
is required as well within the legal parlance to undertake such work.
(e) To promote harmony and the spirit of common
brotherhood amongst all the people of India transcending
religious,
linguistic and regional or sectional
diversities; to renounce practice
derogatory to the dignity of women.
According to this provision, India being a
secular country it is the duty of every one of us to follow
the ideal of common brotherhood and not to make
speeches or any act that effect the life and liberty of any
one or any a section of people. This provision need to be
read with a number of other provisions especially the fundamental rights. It is the
duty of state also to take steps to prevent such activities and also encourage people
to live in harmony. It is the duty of every one of us to prevent all acts that affect the
decency and decorum of women.
(f) To value and preserve the rich heritage of our composite
culture
From this provision, it is the duty of every one of us to protect the cultural
institutions and any monuments, or any other property of India that constitutes as a
part of cultural heritage.
(g) To protect and improve the
natural environment including
forests, lakes, rivers and wild life,
and to have compassion for living
creatures.
It is the duty of everyone to protect the
environment and protection to all other living
creatures. It constitutes as a part of group rights or
third general rights of international law of human rights philosophy.

38
 Human Rights in Indian Context

(h) To develop the Scientific temper, humanism and the

spirit of inquiry and reform
According to this provision, the developments in science and technology
need to employ to extend the benefits to its citizens. The use of science and
technology or any kind of research that augments the needs of country or
individuals be encouraged to foster human values and lead to further development.
Any misuse may be prevented by the state through appropriate law.
(I) To safeguard public property and to abjure violence
According to this provision, everyone has a duty to protect any property of
state and not to take part in any activity that leads to disrupt peace and security in
any manner in consistent with the harmonious living of the people. According to
this provision, in protest, hartals, bandhs and strikes resorting to destroy property
of state, pelting stones on public vehicles is prohibited.
To strive towards excellence in all spheres of individual
(j)
and collective activity so that the nation constantly rises to
higher levels of endeavour and achievement.
It is the duty of every one of us to work in cooperation and help each other
at all times. This provision again highlights that spirit of common brotherhood and
its significance to achieve the prosperity of individuals and nation.
(k) Duty of a parent or guardian to provide opportunities
for education to his child or, as the case may be, ward
between the age of six and fourteen years.
This provision was inserted by the
Constitution (Eighty Sixth Amendment) Act
2002. This was inserted when the State made it
compulsory to educate every child in the country.
To achieve the universal education it is the duty
of state to educate every one and to provide the
necessary facilities to educate every child. At the
same time, duty is casted on the parents or
guardians to send their children to school.
A close examination of the provisions of duties amply makes it clear they impose
duties not only on individuals but also on the state. After the introduction of the

39
 Human Rights in Indian Context

provisions, the responsibility of judiciary has increased. The judiciary in a number

of cases while reading the provisions of fundamental rights, also read the directive
principles and fundamental duties in order to ensure that the philosophy and
scheme of the constitution is to render justice to the maximum extent to protect the
rights of citizens.
The scheme of division of Fundamental rights, Directive Principles of State
Policy and Fundamental Duties by constitution, it is in tune with the philosophical
and ideological perspectives of international law of human rights.
9. Sum Up
The above subtle discussion amply makes clear that India is the first
country to adopt the principles of UDHR through its constitution. India is far ahead
to bifurcate the civil, political, economic, social and cultural rights even before the
UN did it in 1966 by adopting two independent covenants. The constitution equally
places the responsibility on the state and its agencies and individuals in the
promotion and realization of human rights. The incorporation of duties through
42nd Constitutional Amendment fully in tune with the philosophy of human rights
that without discharging the duties that are legally cast on every one, the
guaranteed rights cannot be realized. Hence, it is our responsibility to discharge the
duties cast on every one of us before clamoring for the rights.

40
 Human Rights in Indian Context

MODEL QUESTIONS
1. On which principles Mahatma Gandhi laid for foundation of Sarvodaya
Movement?
A. Truth
B. Non-violence (D)
C. Love
D. All of the above
2. The Constitution is described as …………. by Prof. K.C. Wheare, an American
Constitutional expert.
A. Federal (C)
B. Unitary
C. Quasi Federal
D. None of the above
3. The words …………. inserted to preamble by Forty-second amendment to the
Constitution in the year 1976.
A. Justice and Equality
B. Socialist and Secular (B)
C. Liberty and Equality
D. Fraternity and Belief
4. The 44th amendment of the Constitution in ……. has converted right to property
into a legal right than a fundamental right under Article 300 A
A. 1978
B. 1988
C. 1977 (A)
D. 1987
5. …………….. literally means to produce the body before a court or to answer a court.
A. Habeas Corpus ad subjiciendium
B. Mandamus (A)
C. Certiorari
D. Prohibition

41
UNIT II
Human Rights : Enforcement Mechanism

UNIT II
HUMAN RIGHTS : ENFORCEMENT MECHANISM
This unit will introduce the ways and means how to achieve the guaranteed
rights in the constitution. It will also introduce the remedial mechanism available for
the breach of the respective rights guaranteed by constitution and legislature in a subtle
perspective. It also describe the context in which the various authorities and the
judiciary in India function in augmenting the rights guaranteed to people under
Constitution, national, international laws and policies.
1. Brief Overview of Human Rights Issues in India
From ancient to modern times, the
philosophical perspective of India emphasized
on the implementation and realization of
human rights through duties. All the texts of
ancient and medieval times, the Constitution of
India, a number of legislative enactments
extensively discussed the significance and
promotion of human rights. However, due to
vastness of the country, high population,
poverty, the impact of divisiveness introduced
by the British Government between various
communities, illiteracy, malnutrition, and many other issues have had their own impact
on the realization of rights guaranteed by the constitution by millions of citizenry of
the Polity. Being a party to the United Nations, a number of documents on human
rights, promised to fulfill the ideals of international law through Constitutional means,
the government of India in the year 1993, enacted the Human Rights Act. The
enactment of the Act fulfilled to affirm the rights of citizens and constituted a National
Human Rights Commission to discharge its commitment as a party to the principles of
Paris 1991, on the constitution of structure, powers and functioning of National Human
Rights Commissions. The clarion call of 1993 World Conference on Human Rights,
also had a great impact on the Government of India to enact the National Human
Rights Act in 1993 and there by establishing a National Commission on Human
Rights. Apart from the above, taking into consideration of diverse cultures and due to
adverse effect of socio, economic, political conditions, in order to protect a number of
disadvantaged and vulnerable sections of society, it has constituted a number of special
commissions over the years for the better augmentation of rights

42
 Human Rights : Enforcement Mechanism

guaranteed under the constitution. Apart from the above statutory bodies, the
Judiciary has been empowered to oversee the implementation of provisions of the
Constitution to make the state to discharge its international obligations in
augmenting human rights of its citizenry as a party to the Charter of the UN and
other international legal documents.
2. National Human Rights Act 1993
India being a party to a number of international legal documents on human
rights and to give effect to Art 51(c) of the Constitution of India, it enacted the
'Human Rights Act in 1993' to extend a speedy protection mechanism for the
promotion and protection of human rights. The objective of the Act is to establish a
Commission of Human Rights both at the level of Union and States. It also
proposes to establish Human Rights Courts at the District level in order to address
the issue of human rights that need to be redressed at a quick span. In 2006, the act
was amended and brought in a number of provisions for the effective functioning
of the Commission. Since the implementation of the Act, the Government of India
and the States in the country established commissions of Human Rights.
Though the Constitution of India clearly demarcated Fundamental Rights,
Directive Principles and Fundamental duties, for the first time all this have been
defined as Human Rights in the act in tune with the policy of international law of
human rights. According to Section 2(d) of the Act, 'human rights means rights of an
individual relating to life, liberty, equality and dignity guaranteed to an individual by
constitution and by international covenants that have a binding nature on the states and
its various organs.' Even before the Act came into existence, interpreting the numerous
provisions of the constitution in a number of cases the judiciary through the concept of
public interest litigation promoted the concept of human rights.
3. Judicial Organs:
It is a hallmark of Democracy that the judicial organs need to be independent.
The judiciary is an important and vital organ to promote not only the principles of
democracy and the rule of law, but also ensures that human rights are protected in the
true spirit and philosophy with which they are advocated. In tune with this philosophy,
the constitution has advocated for the establishment of Independent judicial organs to
stand between the citizens and the state to prevent the excess use of power by
executive, legislature. At the same time, as per the provisions of the Constitution,
especially, directive principles of state policy, there is an inherent obligation on the

43
 Human Rights : Enforcement Mechanism

state to take affirmative action in many areas to usher the fundamental rights. If
state fails to discharge its obligations, the judiciary is the only natural organ which
can compel a state to take positive action in order to make the rights effective.
Accordingly, the Constitution of India advocated the creation of a Supreme
Court as the highest court of the judicial system. Further, considering the federal
features of the Union of India, every state has been advocated to have a High Court
as the highest court of each state. These being the courts advocated by
Constitution, they are also referred to as constitutional courts. The other courts with
in a state may be created by a statute.
Supreme Court of India
The Supreme Court of India being the apex court of the country is located
in New Delhi. Being the highest court of the country, its decisions are binding on
all legal organs and people. It has
original, appellative and
consultative jurisdiction. Being
a highest court, it has a number
of inherent powers to exercise
to uphold principles of rule of
law and the provisions of the
constitution.
In the original juri-
sdiction, it exercises powers
under Article 32 of the cons-
titution to protect the rights of
the citizens guaranteed under the constitution and under Article 131 it exercises
jurisdiction in case if there arises a dispute between the Union and State or between
States apart from other jurisdictions to entertain cases of civil and criminal nature.
According to Art 32 of the constitution, it has powers to issue writs, directions or
orders to any authority for the enforcement of fundamental rights. The right to
move Supreme Court being a fundamental right, it cannot be suspended except as
otherwise provided by the constitution. (Fertilizer Corporation, Kamgar Union V Union of
India19811 SCC 568).
According to the provisions of Constitution, any order passed by the court

44
 Human Rights : Enforcement Mechanism

under Art. 32 cannot be challenged once again before the Supreme Court. At the same
time, as the court has inherent powers, it can reconsider its judgment to prevent any
gross abuse of the process or correct a miscarriage of justice. However, such petition
filed for review of the court has to establish a violation of the principles of natural
justice or establish a judge heard a case has any interest in the case or any
apprehensions of bias shown in delivering a judgment, the court may be requested for
reconsideration. But, there is no binding obligation on the court after scrutiny of such
petition to compulsorily take such petition for reconsideration, if the court is convinced
that no miscarriage of justice was done to the parties.
Apart from article 32, Supreme Court has jurisdiction under various provisions
of the constitution to entertain cases for the settlement of disputes. But the significance
of Article 32 is that any person may move the court directly to seek a writ for the
enforcement of their fundamental rights, if there is a grave breach to rights.
The court over the years expanded the jurisdiction of people to approach the
court in the interest of public, if there is a grave breach of the rights of others in the
country though the rights of an individual are not affected. In other words, normally
only the person whose rights are violated alone could move the Supreme Court for a
remedy for the breach. However, considering a number of factors, the inaction of the
state, the judiciary introduced the concept of ―Public Interest Litigation‖ or in the
words of Prof. Upendra Baxi ―Social Action Litigation‖ in the early eighties to protect
the proper enjoyment of rights of weaker sections, poor, destitute and underprivileged.
According to this concept, the concept of locus standi has been enlarged.
In general according to the concept of locus standi only the person whose rights are
violated alone vests the power to move the court for a remedy in the event of
breach of a guaranteed right. In the case of Public interest litigation, any person
may move the court for a judicial remedy wherever a legal injury is caused to any
person or group of persons by violation of any constitutional or legal rights
guaranteed by law. (S.P. GuptaV Union of India AIR 1982 SC 149).
However, the person moves the court need to provethat the act is bona fide one
and moved only in the interest of protecting the rights of the affected people.
The concept of public interest litigation invented in India is far ahead than that
of the Supreme Court of America which introduced the concept in the judicial arena in
the early fifties (Brown V Board of Education347 US 483 1954). After enlarging the scope

45
 Human Rights : Enforcement Mechanism

and pace of Public Interest litigation, the court also expanded the jurisdiction of
writs. In the case of Public Interest litigation, a letter addressed by a person to the
Supreme Court is considered as a writ petition, in case the court prima facie
satisfies that the letter contains substantial legal aspects which need to be
examined. Further, the court in exercise of its inherent powers (suo motto) on its
own issue writs or directions to various authorities basing on reports of media,
taking into consideration of the plight of millions of people whose rights are not
fully augmented by the state. The whole credit of expanding the jurisdiction of the
judiciary mainly owes to Justice P.N. Bhagwati the former Chief Justice of India.
High Courts
The system of Courts at the level of State's is not a new concept to India.
Even before the Constitution of India came into existence, three High Courts in
Bombay, Calcutta and Madras were established in 1862. The powers and functions
of theirs were defined by legislation from time to time. The constituent assembly
considering the significance of High Courts provided for establishment of more
High Courts in various states. Accordingly, Articles 214 to 235 of the constitution
deals with various aspects of the High Courts. According to the provisions of the
constitution, normally there will be a high court for each state. However, the
Parliament of India by law has the power to extend the jurisdiction of a High Court
to more than one State. Accordingly, there are twenty-one High Courts are
functioning in the country.
The High Courts are the highest judicial authority of a State. They have
judicial and administrative powers. Accordingly, the administrative province of
High Court extends to all the lower courts and tribunals working in a state or
jurisdiction conferred by law. A decision given by High Court may be challenged
before the Supreme Court of India according to the provisions prescribed for such
appeal. On the lines of the Supreme Court, the High Court's being constitutional
courts have a number of powers to protect the rights of citizens. According to
Article 226, the High Courts are empowered to issue writs of various kinds to
protect the rights of affected people. However, the provisions of Article 226 have
been amended a number of times to bring in clarity to the exercise of the powers
basing on the judgments of the Supreme Court of India.
After the judgment of the Supreme Court of India in Lt. Col. Khajoor Singh V

46
 Human Rights : Enforcement Mechanism

Union of India ( AIR 1961 SC 532), the High Court normally has no jurisdiction
toissue a writ against the Union of India, except the Circuit Bench of Punjab High
Court in Delhi or Supreme Court. However, this has no bar on a High Court to
issue a writ to Government of India, in case if the subject matter of a case falls
within the Jurisdiction of the High Court. In general, the High Courts will not
entertain a petition for issuance of writ, if an alternative judicial remedy is
available for a person to seek judicial redress. However, the Supreme Court (A. V
Venkateswaran V R.S. Wadhwani(AIR 1961 SC 1506) held that this rule no
way bars the jurisdiction of a High Court toissue writs in order to protect or
augment the fundamental rights and direct any party to seek the available
alternative remedy. Accordingly, the powers of a High Court are very wide and far
to issue writs in the Protection and Promotion of fundamental rights that are
guaranteed under Part III of the Constitution. At the same time, as per the
provisions of the constitution, and judgments of the Supreme Court, though the
High Courts are empowered to issue writs, they need to exercise due care and
caution before issuing the writs and need to take into consideration seriousness of
the facts of a case.
The brief examination of the powers of Supreme Court and High Courts,
amply makes it clear the significant role played by judiciary in the promotion and
protection of constitutional rights that are guaranteed to various organs and the
citizens. The provisions of Article 32 and 226 confer unfettered powers on
judiciary not only to augment the rights guaranteed under the constitution, but also
to inject the philosophical framework of international law of human rights. The
power conferred under these articles to judicial organs is described as judicial
review in the realm of philosophy of law. According to Shri. M. C. Setalvad an
eminent jurist and the First Attorney General of India who served during 1950 to
1963, ―the right to judicial review evolved in some countries after a prolonged
struggle, has been granted to us by the constitution.‖ These words of a great jurist
and the activist role of judiciary certainly disprove the arguments and counter
arguments that are advanced by a section of researchers, statesmen and non-
governmental organizations both nationally and internationally, the track record of
India and mechanism to remedy the grievances of human rights is poor or
negligible.

47
 Human Rights : Enforcement Mechanism

4. National Human Rights Commission :

The Government of India
established the National Human Rights
Commission in 1993 in order to give
effect to the National Human Rights Act
1993 . The Head quarter of the
Commission is New Delhi. As per section
12 of the provisions of the Act, the
commission is empowered to inquire
either on its own or based on a petition
submitted by a victim or any person on
behalf of a victim on the violation of
human rights. It can also participate in the
proceedings of a court with prior permission of such court to defend or to place
information relating to violation of such human rights that are in trial before such
court. For example, in the Chakma Refugees in Arunachal Pradesh basing on a
complaint by an NGO Committee for Citizenship Rights of the Chakmas in order to
enforce the rights of about 65,000 chakma tribal's, it moved the Supreme Court of
India through a Public Interest litigation under Article 32 of the constitution to seek
and to enforce the rights of them under Article 21 of the constitution, (NHRC V State
ofArunachal Pradesh and another, 1996 SCC (1) 742).It can visit any
institution under thecontrol of union or any state including a jail, to study the
conditions and to make recommendations to such authorities of its observations and
render suggestions.
It can review any laws, acts, or factors relating to terrorism and make such
recommendations to the Government of India for review or amend such laws and
regulations. In exercise of powers conferred on it, it had undertaken a number of
studies with respect to various areas relating to disadvantaged groups on its own and
on the basis of complaints received by it. It is one of the duties of the commission to
examine the international legal documents on human rights and make necessary
suggestions to the Government of India to take necessary steps for their incorporation
in the promotion of human rights as per the provisions of Article 51(c) of the
constitution of India. It has a duty to promote research and conduct activities such as
seminars, conferences, workshops, for the promotion of human rights. In this regard,
the NHRC invites applications at regular intervals and conducts a number of

48
 Human Rights : Enforcement Mechanism

workshops, seminars, workshops, conferences in various educational, public sector

organisations and in association with Non Governmental Organizations. It
publishes a wide variety of books, notes and other necessary information for the
promotion of human rights.
According to Section 13 of the Act, the Commission has been conferred the
powers of a civil court and other relevant laws to examine, summon, issue notices or
inquire matters pertaining to human rights in deciding the cases. The Commission
since its establishment in 1993, almost in the last two decades made a significant
impact in the promotion of human rights of number of people. Some of the reports and
recommendations submitted by it have been accepted by Government of India which
resulted in a number of changes to various laws and regulations.
An examination of the provisions of the Act, especially the definition of human
rights provided in section 2 (1) (d) makes it amply clear that the mandate is mostly
confined to augment the civil and political rights than to that of the economic, social
and cultural rights, since the human rights that are enforceable in courts of law.
It is unfortunate even after two decades of adopting the Act, the Union and
States have not taken any steps to establish the Human Rights Courts at the District
level for a speedy and quick justice to provide remedy of violation of
human rights.
5. Maharashtra State Human Rights Commission
The Maharashtra State Human Rights Commission was established in 2001, in
accordance with the provisions (Sections 21-29) of the Union Act which authorizes
each state to establish a commission. The Head quarter of the Commission is Mumbai.
The State Human Rights commission enforces the rights of the people of the State of
Maharashtra on the lines of the National Human Rights Commission. However, its
jurisdiction is limited only to the State of Maharashtra. The State Commission has
worked on various aspects and submitted a number of reports to the Government for
consideration. It is very active in the promotion of Human Rights Education in the
State. The workshop of it on the introduction of the Human Rights Education in 2010
led for the evolution of a number of modules for its impartation, and led the University
of Pune to introduce the Human Rights Programme with the blessing of the Governor
and the Government of Maharashtra.
Both the National and State Human Rights Commissions offer internships of
four weeks to the students to equip the students and to propagate the significance and
 Human Rights : Enforcement Mechanism

knowledge of Human Rights Education. The details are regularly displaced in the
respective websites of both the organs.
6. Commissions on Women, Children, Minority and
Scheduled Castes and Scheduled Tribes
The United Nations apart from
general human rights concerning man, over
the years basing on the deliberations,
recommendations of various organs and
states adopted a number of international
conventions, resolutions to augment the
rights of a number of disadvantaged
sections of the world. It made an appeal to
all the states to adopt specific legislations extending concessions to such groups of
disadvantaged sections of people to bring them on par with the developed sections
of each state. It also reiterated that while enacting such policy measures, or
enacting legislations, the states parties need to consider the socio, economic,
political and cultural aspects which have a bearing on the exclusionist policies
which prevent them to augment their rights freely and to establish such mechanism
which will assist them in the enjoyment of human rights guaranteed both
internationally and nationally without any kind of aberration. Further, the states
parties need to extend the necessary concessions to such people to achieve self-
sufficiency and to take part in all the activities of the polity in an equal manner.
In India traditionally on grounds of gender, socio, political, economic, cultural,
and caste lines; women, children, Minorities, Scheduled Castes and Scheduled Tribes
who are backward in many respects or termed as disadvantaged groups of people. In
order to augment their rights, the constituent assembly under various provisions of the
constitution extended a number of concessions to augment the rights of these people.
The Government of India in accordance with international and national obligations
since independence adopted a number of policies and enacted special legislations
extending a wide variety of concessions to enrich these people on par with other
sections of the society. However, in view of poverty, illiteracy and other socio-cultural
aspects, these people are discriminated on various fronts and a target group to deny
free enjoyment of their rights. In order to integrate these people with other advanced
groups of the polity, to provide quick span of justice, to protect their

50
 Human Rights : Enforcement Mechanism

rights and to promote their welfare, the government of India in order to discharge its
international and national legal commitments, established independent commissions to
philosophy of human rights.
help them to achieve tenets of social justice

7. National Commission for Women

The government of India considering the reports of various commissions of
its own, and the UN commission on Women's recommendation established the
National Commission for Women in 1992 in New Delhi
basing on the mandate of the National
Commission for Women Act, 1990. According to
the provisions of the Act, the Commission will
have the powers to investigate and examine all
matters relating to women and to submit reports
with recommendations for the effective
implementation or safeguards to be provided as per
the provisions of constitution and other laws in
force in the country. It has the right to receive any
complaint either on its own or on the notice of
party regarding violations concerning on any matter relating to rights of women. For
the promotion of rights of women to eliminate the discriminatory practices against
women, it can conduct research and other educational activities in order to suggest
measures to ensure the due representation of women in all fields. The Commission
shall have the powers of a civil court while inquiring the matters relating to women.
The commission since its establishment in its more than two decades existence
submitted a number of reports and recommendations on a number of issues for the
promotion of women's rights as guaranteed by law. The sustained effort of the
Commission, The Protection of women from Domestic Violence Act 2005 was
enacted. It conducts a number of workshops, seminars, conferences and other various
activities to highlight the significance of women's participation in the enrichment of
economic, social, cultural standing of India. It has submitted a draft note to highlight
the significance to enact a special law to prevent dishonor killings of young couples
based on caste and community issues and Acid attacks against women.
8. Maharashtra State Commission for Women
Though the Government of India Act has no specific provisions for the
establishment of women’s commission at the state level, the Government of

51
 Human Rights : Enforcement Mechanism

Maharashtra established a State Commission under an Act of the State Legislature

in 1993 on the lines of the National Commission for Women. The commission was
constituted in tune with the policy of the State to promote the rights of women in
the state and to prevent atrocities, discriminatory practices and other crimes that
affect on the dignity of women. The Commission advises women and the victims
on various legal aspects to seek legal remedies and other remedial mechanism. It
promotes research studies on various aspects of women and conducts seminars,
conferences and undertakes such activities which are necessary for the promotion
of the rights of women.
The government has established twelve special courts in the state to prevent
crimes and various types of atrocities against women. Apart from the special
courts, the government also constituted family courts in cities where the population
is more than ten lakhs to address the issues relating to matrimony, property,
maintenance, and guardianship of minors etc. Apart from constituting the
commission and special courts, the state took a number of positive measures for the
promotion of the rights of women, and encourages special studies and research in
the area of women's studies.
9. National Commission for Protection of Child Rights
The rights of children are abused on various
fronts, due to ignorance, or factors such as poverty,
leniency, socio, cultural perspectives that young
children are not matured enough to have full
freedom to bloom their rights. In order to augment
their rights, the efforts of Ms. Eglantyne Jebbs led
the nation-states to evolve a number of policy
formulations and the establishment of UNICEF.
The continued and sustained efforts of UN and
other international and non-governmental
organisations led for the adoption of Convention on
the Rights of Child in [Link] Government of India in order to discharge its
international and national legal obligations enacted the National Commission for
the Protection of Child Rights in 2005.
The National Commission for the Protection of Child Rights was established

52
 Human Rights : Enforcement Mechanism

in 2007. The mandate of the Commission is to review various laws, policies basing
on its feedback from the grass roots level, and suggest the necessary mechanism to
the government to meet the constitutional and international obligations of the State
to adopt such policies according to the needs of each region in the country. It can
inquire in any matter relating to the violation of rights of children, non-
implementation of any law or policy either on its own, basing on the complaints
received by the victim or anybody on behalf of the victim. It has the power to
approach any High Court or Supreme Court for such remedy or order in the
augmentation of the rights of children. The commission has the powers of a Civil
Court while inquiring any matter concerning the violation or protection of the
rights of children. Though there is a variance in describing the age of children
between 14 to18 under various laws, according to this Act, a child is defined as
below the age of 18 years. Hence, it is implied that every authority and legal
provision need to consider child means below the age of 18 years.
10. Maharashtra State Commission for Protection of Child
Rights:
Basing on the provisions of the Act, about 18 states in the country established
child rights commissions at the state level. The objective of the state commissions is to
oversee the welfare of children in the state and to advise the government to take
necessary steps to augment the rights of children in every respect in order to bloom
their tender age with happiness. The Government of Maharashtra accordingly in 2007
itself constituted the State level Commission on the lines of the National Commission.
The state had adopted a policy of Children in 1974 itself.
The Commission since its establishment submitted a number of reports to
the government to consider various aspects in the augmentation of the rights of
children with an emphasis on the rights of slum, neglected, destitute and street
children. In 2012, it has conducted a National level symposium to take necessary
steps to protect the rights of children of the Asia Biggest slum 'Dharavi'.
Apart from various activities, the Commission in conjunction with the state
government training institute 'YASHADA' situated in Pune prepared a draft policy
to be adopted by the government to augment the rights of children. In order to
discharge its commitment, the government recently appointed a 64-member body
headed by Women and Child Welfare Minister, Smt. Varsha Gaikwad to finalise
the policy at the earliest.

53
 Human Rights : Enforcement Mechanism

11. National Commission for Minorities:

According to Francesco Capotorti,
Special Rapporteur of the United Nations Sub
- Commission on Prevention of
Discrimination and Protection of Minorities, a
minority is: A group numerically inferior to
the rest of the population of a state, in a non-
dominant position, whose members - being
nationals of the state - possess ethnic,
religious or linguistic characteristics differing
from those of the rest of the population and
show, if only implicitly, a sense of solidarity,
directed towards
preserving their culture, traditions, religion or language. However, there is no
common understanding amongst the nation-states on the subjective (individuals
must identify themselves to be part of a minority group) and objective factors
(existence of a shared ethnicity, language, or religion), there is no definition in
international law defining minorities. However, the Declaration on the Rights of
Persons belong to National, Ethnic, Religious and Linguist Minorities adopted by
the UN in 1992 refers to minorities as based on national or ethnic, cultural,
religious or linguistic identity and impose a duty on the states to take necessary
steps for the promotion of their identity and to protect their human rights.
There is no precise definition either in the Constitution or in any law in the
country to define who minorities are. In general, Articles 25-30 of the Constitution are
interpreted for the various rights of minorities. The National Commission for
Minorities Act, 1992 left the discretion to the Union of India to notify any community
as a Minority. Accordingly, Muslims, Christians, Sikhs, Buddhists, Zoroastrians
(Parsis) have been notified by the Government of India as minorities. To protect the
rights of these communities, a National Commission was established in 1992 itself to
cater the needs of minorities. The Commission will evaluate the policies and laws that
are in existence and recommend such measures to be adopted for the augmentation of
rights of minorities. It can make specific recommendations for the effective
implementation of the necessary safeguards to be adopted by the Government from
time to time. It can undertake studies and encourage research leading to the promotion

54
 Human Rights : Enforcement Mechanism

of rights of minorities. It has the powers of a civil court to conduct inquires basing
on the complaints received by any community on the violation of their rights. It
produces annual reports highlighting the various activities, achievements, and
recommendations of the commission to the government. Basing on the
recommendations and on its own the government of India launched a number of
welfare schemes in order to augment the rights of minorities.
Along with the Union of India 15 states have established the commissions of
Monitories in their respective states. The State of Maharashtra enacted a State
Minorities Commission Act in 2004 and established the same in 2005. This
commission on the lines of the National Commission will exercise similar powers and
functions in the augmentation of the rights of minorities in the state of Maharashtra.
12. National Commissions for Scheduled Castes and
Scheduled Tribes
Among the various issues that affect the
growth and development of people in the promotion and
realisation of human rights, caste plays a vital role in
Indian society. The selfish interests of majority section of
people branding themselves as upper castes brought the
concept of untouchability and left a section of people in
wilderness branding them as lower castes. These lower
castes people normally described as scheduled castes and
tribes. For generations they have been denied all the basic
rights and prevented their participation in various activities of the polity including
the minimal exercise of their guaranteed rights.
Moved by their plight a number of statesmen, philanthropists, human rights
activists fought against the upheavals and demanded equality and concessions to be
extended constitutionally in order to enable them to exercise and realise their rights on
par with other sections of the society. The constituent assembly responding positively
to bring in human dignity and to eradicate the injustices done to them for generations,
provided a number of safeguards to promote their social, economic, educational,
political and cultural interests of the these sections of people of the society.
The Government of India in November 1950, in accordance with the provisions of
Article 338 of the constitution, appointed a Commissioner of Scheduled Castes and Tribes.
It was the duty of the Commissioner to look after all matters relating
 Human Rights : Enforcement Mechanism

to the safeguards provided under the various provisions of the Constitution for the
promotion of these communities, and report to the President of India on the
working of safeguards. The Commissioner's office was expanded in phases to
cover various states and administrative units of the grass root level.
A number of Parliamentarians time and again demanded to amend the
provisions of Article 338 in order to appoint a multi member team to work for the
advancement of these groups instead of a single member body. Accordingly, a
proposal was mooted to amend the constitution. However, even before the
amendment took place through a resolution of the Home Ministry, in August 1978
the Government of India constituted a multi member body as the Scheduled Castes
and Scheduled Tribes Commission. The commission was setup as a National
advisory body to advise the government on various policy issues for the promotion
of rights of these groups. This commission had submitted around thirty reports to
the government on various issues in the promotion of the rights of these groups.
The Constitutional amendment of Article 338 (Sixty Fifth Amendment) in
1990, the Government of India constituted the National Commission for Scheduled
Castes and Scheduled Tribes as a statutory body. The commission is committed to
implement the Protection of Civil Rights Act, 1955, which mainly advocates the
abolition of untouchability and the SC and ST (Prevention of Atrocities) Act 1989.
The commission will not only guide the Union or State Government or Union
Territory but also has the right to participate in the process of planning of socio-
economic developmental aspects of Scheduled Castes and Scheduled Tribes. It
shall submit periodic reports to the President of India for onward submission to
Parliament of India for the effective implementation of the measures for the
augmentation of the rights of these groups. It has right to inquire any complaint of
violation or atrocities brought before it and possess the powers of a civil court
while inquiring matters.
The 89th Amendment Act to the
Constitution in 2003, inserted clause A to
Article 338, advocating for the bifurcation of
the National Commission for Scheduled
Castes and Scheduled Tribes into two independent commissions, namely National
Commission for Scheduled Castes and National Commission for Scheduled Tribes.
Accordingly, in 2004 the Government divided the National Commission into two

56
 Human Rights : Enforcement Mechanism

independent commissions as contemplated by the constitutional amendment. Both

commissions exercise the powers stated above independently from their birth in
2004 and their headquarters is in New Delhi. Apart from the National
Commissions, many states also constituted state Commissions on the lines of the
National Commissions to work for promotion of welfare of these groups and to
enable them to exercise their rights freely as advocated by the constitution and to
fulfill the philosophy of international law of human rights.
Apart from these Commissions, the Government of India pursuant to the
directions of the Supreme Court of India in the Indra Sahney V Union of India (AIR 1993
SC417) popularly referred to as Mandal Commission's case, the Government of
Indiaconstituted the National Commission for Backward Classes in 1993 as a
statutory body. This commission will strive to work for the welfare of the various
classes of Backward people as notified by the Government of India and State
Governments from time to time. The Commission will oversee the welfare and
advise the Government in the policy-making aspects to promote the welfare of
backward communities people. It has the power to inquire any matter reported to it
and exercise the powers of a civil court. The headquarters of it is New Delhi. All
most all the State Governments also constituted state level commissions on the
lines of the National Commission.
13. Survey of International Mechanism
Human rights being a specialized area of
international law, in the beginning there exists no
mechanism for individuals to approach the
international courts or commissions. It is only
States being sovereign nations have the power to
approach various courts, or commissions under
International law. However, the recognition of
human rights by the Charter of United Nations,
adoption of Universal Declaration of Human
Rights, and a number of International
Conventions, Covenants on various aspects of Human Rights, a mechanism for
individuals at the international level acquired significance. Accordingly, in early
1970s, the nation-states established international complaint mechanism to receive
complaints from individuals under the following core treaties of human rights stated.

57
 Human Rights : Enforcement Mechanism

(The names in brackets indicate the name of the complaint body under each treaty).
Beyond the specified mechanisms, individuals have no access to other judicial,
quasi-judicial, or any high-level bodies of the UN.
TheInternational Covenant on Civil and Political Rights(Human Rights
Committee)
TheInternational Covenant on Economic, Social and Cultural
Rights(Committee on Economic, Social and Cultural Rights)
TheConvention against Torture and other Cruel, inhuman or
DegradingTreatment or Punishment ( Committee on Torture)
TheInternational Convention on the Elimination of All Forms of
RacialDiscrimination (Committee on Elimination of Racial
Discrimination)
TheConvention on the Elimination of All Forms of Discrimination
AgainstWomen (Committee on the Elimination of Discrimination
AgainstWomen)
TheConvention on the Rights of Persons with Disabilities( Committee
onthe Rights of Persons with Disabilities)
TheInternational Convention for the Protection of All Persons
fromEnforced Disappearance ( Committee on Enforced Disappearance)
TheInternational Convention for the Protection of All Persons of
AllMigrant Workers and members of their Families ( Committee on
MigrantWorkers)
TheConvention on the Rights of the Child and its optional
Protocols(Committee on the Rights of the Child)
In the above core treaties, under each of them, States agreed to establish a
committee to monitor the implementation of the treaty and to receive the complaints
from individuals only if the state is party to such treaty and agreed to submit to the
jurisdiction of the committee by way of ratification of the treaty or additional
protocols. (The list being exhaustive it can be ascertained from the website office of the UN High
Commissioner for Human Rights or from any other UN websites ). In the above, the Committeeon
Migrant workers and the Committee on Child Rights are not yet established. Apart
from the above core treaties, there are various avenues are available for complaints to
be brought in by individuals to the bodies of the United Nations. Complaints can be

58
 Human Rights : Enforcement Mechanism

submitted to the Human Rights Council, it's Special Rapporteurs, working groups,
the Commission on the Status of Women and other various bodies of the United
Nations. There exist different procedures to complain to these bodies compared to
under the above stated treaties, which provide individual redress through quasi-
judicial mechanism.
There are three ways for brining complaints before the committees of the
above treaties for violations of human rights.
(a) Individual communications:
Any individual can make a complaint against a state, which can be made by
any individual about the violation of human rights under any of the treaty specified
above to the respective committee subject to the following conditions:
A State should have accepted the treaty and ratified it as per the procedure
of the respective treaty. Even if a state has accepted any treaty, if reservation or
conditions are specified by such state with respect to any provision, no complaint
can be made against such provisions where in the reservations are made.
Even if a state is a party to a treaty or protocol annexed there to, the state
should have accepted the committee's competence to examine individual complaints.
Third parties or any person may also make complaints to the committees on
behalf of the alleged victim by obtaining prior consent in writing of such party.
However, in the case of a victim who may not be accessible to the outside world
(in a confinement) or is a victim of an enforced disappearance, there is no need of a
consent of such victim stating the reasons for not able to procure the consent. The
complaint need not be submitted in a prescribed format. However, the Office of the
High Commissioner for Human Rights has prepared a prescribed format and can be
downloadable from its official website. The complaint need to be made in any of
the six official languages namely, Arabic, Chinese, English, French, Russian, or
Spanish of the United Nations. In case if the complaint is written in any other
language a translation need to be enclosed in any of the languages of the UN.
It is necessary to submit the entire information in a sequential order of the
complaint with all relevant details with respect to the treaty in question on which the
complaint is made. The complaint need to contain the details about the exhaustion of
judicial and other remedies provided by the state. It is implied that before proceeding
to the committee on a complaint, the victim need to exhaust all the available legal

59
 Human Rights : Enforcement Mechanism

remedies within the country. All the relevant documents, especially administrative
and judicial decisions copies need to be attached with the complaint. In case if the
party fails to provide such documents, the Secretariat office of UN High
Commissioner for Human Rights will contact the complainant for any information
or to obtain additional information or may ask for resubmission of the details, if it
is not satisfied with the documents submitted. Once the committee accepts the
complaint, it will transmit the same to the concerned state for its reply. After the
replies by the state, the committee will proceed with its final decision and will be
transmitted to the complainant and to the concerned state. If a committee concludes
that a violation of a treaty has taken place, the state will be asked to provide
required information within 180 days. The state is asked to submit its responses
and steps taken for implementation of the recommendations made by the
committee. Though a state is normally expected to adopt the measures stated in the
final decision, if a state fails to act, no punitive action is contemplated against a
state. The final decision of the committees is made public.
(b) Inter-State Complaints:
Any state may complain to any of the committees against another state who
is a party to the concerned treaty for the alleged violations of the provisions of a
particular treaty. The procedure to be followed and adopted by the states specified
in each treaty. However, no state has so far used the procedure.
(c) Inquiries:
Any committee may initiate inquiries against a state for the alleged
violations upon the receipt of a complaint received by such committee. These
inquiries will be conducted as stated above, only if a state has accepted the
jurisdiction of such committee by adhering to a treaty or protocol. In general, the
inquiry procedure is adopted in the following perspective:
1. The procedure may be initiated if the committee receives reliable
information indicating that the rights contained in the Convention it
monitors are being systematically violated by the State party.
2. The committee invites the state party to co-operate in the examination of
the information by submitting observations.
3. The Committee may, based on the state party's observations and other
relevant information available to it, decide to designate one or more of its

60
 Human Rights : Enforcement Mechanism

members to conduct an inquiry and report urgently to the committee.

Where warranted and with the consent of the state party concerned, an
inquiry may include a visit to its territory.
4. The findings of the member(s) are then examined by the committee and
transmitted to the State party together with any comments and
recommendations.
5. The state party is requested to submitits own observations on the
committee's findings, comments and recommendations within a specific
time frame (usually six months) and, where invited by the Committee, to
inform it of the measures taken in response to the inquiry.
6. The inquiry procedure is confidential and the cooperation of the state
party shall be sought at all stages of the proceedings.
In addition to the above general complaint mechanism, all most all the
states under various treaties have agreed to submit annual reports to the various
committees or any special committee constituted by the respective organs of the
United Nations. After examination, if the committee's satisfy, they will send the
comments or recommendations on the record of accomplishment of the
implementation of human rights by the states parties. In case, if the committee may
not satisfy, it may call for fresh evidences or fresh reports to be submitted by the
state. Apart from the state, individuals and Non-Governmental Organisations also
can submit independent reports with all evidences and conducted research on any
of the aspects of the implementation or systematic violation of human rights
treaties to which a state is a party. This system of seeking annual reports by states
parties helps the UN and its various organs to take necessary steps through either
recommendations or requesting the General Assembly to adopt additional measures
for the promotion and implementation of human rights in various areas.
14. Sum Up
The above brief discussion clearly indicates that pronouncing rights legally
without remedial mechanism for their violation be of no use. Though the international
community recognises the right of individuals to complain to various treaty bodies,
mostly they are teeth less in the absence of ratification by states parties, and no strict
compliance mechanism. It is the duty of states to testify their achievements need to
evolve strategies to strengthen international mechanism on the lines of national
mechanism, which they adopted seriously for the augmentation of human rights.

61
 Human Rights : Enforcement Mechanism

Model Questions
1. The Supreme Court of India being the apex court of the country is located in
A. Gujarat
B. New Delhi (B)
C. Maharashtra
D. Kerala
2. According to Article ………… ,the High Courts are empowered to issue writs
of various kinds to protect the rights of affected people.
A. Article 226
B. Article 32 (A)
C. Article 143
D. Article 126
3. The …………….. are the Highest Judicial authority of a State.
A. High Courts
B. District Courts (A)
C. Both A and B
D. None of the above
4. The National Commission for the Protection of Child Rights was established
in……..
A. 2001
B. 2002 (C)
C. 2005
D. 2007
5. The State of Maharashtra enacted a State Minorities Commission Act in ………
and established the Commission in ………. .
A. 2004 and 2005
B. 2002 and 2003 (A)
C. 2011 and 2012
D. 2000 and 2005

62
UNIT III
Obstacles to Human Rights and Indian Polity

UNIT III
OBSTACLES TO HUMAN RIGHTS AND INDIAN
POLITY
This unit will briefly introduce the various factors that hinder in the process
of augmentation and realisation of human rights. It will focus on the various
obstacles in the realisation of human rights by certain sections or group of people
who are legally equal in all respects in the eye of law, but may not be able to
realise the rights in both international and national scenario. It will also deal with
the significance of the concept of good governance and its contribution in the
promotion of human rights in the Indian context.
1) Inequalities in society and Human Rights:
Human rights are applicable equally without
any discrimination on any ground. However,
inequalities present in each society deprive the equal
enjoyment of human rights by a number of people.
The social inequalities lead to the presence of
unequal opportunities, rewards, social positions, and
distribution of resources, opportunities, amongst the
people or groups in a society. These inequalities
bring in a division in a society between the people of
a society as privileged and under privileged
categories. They in turn transmit a number
of obstacles for the realisation of legally guaranteed rights on an equal footing. The
non-realisation of rights on equal footing by a group or section of people leads to
the advantage of socially advanced groups of a society to enrich on the rights of
disadvantaged groups in various ways and means in an illegal fashion or seize the
opportunities of others. The unjust enrichment of socially advanced groups many a
times try to exploit such socially disadvantaged groups from sociological
perspective bring in problems chiefly in three dimensions such as; objective
structural conditions, ideological supports and social reforms.
Objective structural conditions will help to measure inequalities in education,
poverty, illiteracy, health and other social conditions present in a society. Ideological
perspectives supports to examine the differences present in laws, public policies,
values, and cultural differences present in a society. In view of inequalities, social
reforms lead to resistance by groups and social movements for the realisation of
 Obstacles to Human Rights and Indian Polity

human rights of those deprived classes. In the struggle for

realisation of rights bring in conflicting situations between
advanced and disadvantaged groups, which will in turn lead to
breach of rights of both sections. However, it is the socially
disadvantaged groups suffer mostly than the advantaged
groups. In the language of International Law of Human
Rights, such breaches constitute as violation of human rights
guaranteed both internationally and nationally in their
realisation and enjoyment. It is the duty of nation-states to
strengthen the justice system, especially that of transitional justice for the
promotion of human rights and to address the issues that hamper the enjoyment of
human rights. Among the various aspects that constitute as obstacles in realising
human rights in the fullest extent few of them are discussed.
a) Population:
Population and human rights are
independent issues. However, they have a close
nexus with each other due to evolution of a
number of sovereign states and political
dominance across frontiers in designated
boundaries after Second World War and
decolonization. The demographic trends and
population polices evolved by states from time to
time, pose challenges to human rights enjoyment
in an effective manner. Many of the human rights
activities until the adoption of family planning
policies by several countries during late sixties and early seventies, the
interrelationship between human rights and population was not realised.
In the beginning, impact of population was mostly concentrated on economic,
social, and cultural rights than to civil and political rights. The population policies
adopted by nation-states being a direct impact on reproductive rights, adequate
standard of living, right to work, right to health, right to social security, right to water,
right to safe and decent environment, right to education, right to resources, and other
cultural perspectives etc. However, the impact of growth of population has brought in
direct impact of on civil and political rights due to poverty, lack of bargaining
capacity, unaware of policy perspective of a state by majority of population.

64
 Obstacles to Human Rights and Indian Polity

Among the various human rights, the

impact of population is direct target on choice of
reproductive rights. To control population a number
of countries in the world adopt forced family
planning methods, which mostly hamper the rights
of women or a family in general and that of poor
and destitute in particular. In a way such policies
leads to migration from one country to another in
an illegal perspective which lead to deprivation of
civil and political rights such as life
and liberty, right to seek asylum, freedom of speech and expression, right to privacy etc.
The United Nations in its population report 2012 highlighting the significance
of controlling population requested the state parties to adopt policies that will help
people to realize the significance of family planning, especially empowering
women to choose their reproductive rights freely and the advantages in the exercise
and realisation of other human rights. Accordingly, it calls on all states to adopt the
following steps in the promotion of family planning and the benefits to secure other
human rights:
Radically increase financial support and political commitment to ensuring
thatrights-based family planning is available to all who want it, when they
want it, and that services, supplies and information are of high quality.
Promotefamily planning as a right,the exercise of which enables
theattainment of a whole range of other rights.
Integrate voluntary family planning into broader economic and
socialdevelopment because family planning enhances both.
Eliminate economic, social, logistical, and financial obstacles to
voluntaryfamily planning so that everyone who chooses to use it has access
to it.
Reducethe number of unintended pregnancies and abortions by increasing
availability, reliability, and quality of family planning supplies and service.
Makefamily planning programmes available to the full range of
users,including adolescents, unmarried people, and all others who need it.
Includeemergency contraception in the range of supplies available
throughfamily planning programmes.

65
 Obstacles to Human Rights and Indian Polity

Engagemen and boys in family planning, for their own benefit and to
supportthe right of women and girls to use contraception.
India ranks second most populous country in the world with more than one
billon. The increasing number of population is posing number of threats for the
realisation of a number of human rights both fundamental rights and directive
principles of state policy. It has a direct impact on the enjoyment of right to
qualitative life, active participation in politico, socio, economic and cultural aspects
of the polity. The increasing population has brought in unemployment, illiteracy,
increasing child mortality rates, child labour, low wages, pollution, right to health,
social security, environmental degradation, severe crunch on resources etc. In view
of the increasing number of population, around 70% of its populace is not in a
position to exercise their constitutionally guaranteed rights.
The Government of India since independence promoting a number of policies
spending billions of dollars for the promotion of population control methods. India was
the first country to introduce population control methods in 1952 through the First
Five-year Plan through the method of "clinical approach." In sixties and seventies, it
had vigorously adopted a number of schemes including the permission of termination
of pregnancy under medical supervision. It had adopted the family planning norm of
one child for one family. However, being a democratic society its enforcement norm is
not autocratic like China. The soft approach of the state led to increasing number of
population and as per predictions; by 2030 it may even overtake China. If that
happens, the threats to enjoyment of human rights may increase the ratio further and
bring in deplorable conditions for its masses to enjoy even the minimal rights. The
government need to adopt aggressive acceptable population drive to counter the age-
old beliefs built in the society on child bearing, encourage effective people's
participation, especially increasing the status of women, educating the masses to
prevent increasing population rate. Only if population rate is controlled, India could
increase its human development index from the well below 100th mark in the world
and could become a robust economic power in the future globalizing world.
b) Poverty
In any society, poverty is linked with economic capabilities and living
conditions. However, in the language of human rights poverty is a broad concept
which has a number of dimensions. According to the United Nations Development
Programme, "Poverty has many faces. It is much more than low income. It also

66
 Obstacles to Human Rights and Indian Polity

reflects poor health and education, deprivation in

knowledge and communication, inability to exercise
human and political rights and the absence of dignity,
confidence, and self-respect." This definition
connotespoverty may be viewed in a broad perspective
where in
human rights play a crucial role in their realisation and exercising the freedoms that are
guaranteed by various international documents of international law of human rights, to
lead a life with dignity. However, across the world, there exists a relatively narrow
definition based on capability approach of Amartya Sen. According to this approach,
poverty is one of the reasons for the realisation of certain basic rights and freedoms,
such as freedoms to avoid hunger, disease, illiteracy, and so on. Freedom here is
conceived in a broad sense, to encompass both positive and negative freedoms. Thus, a
person's freedom to live a healthy life is contingent both on the requirement that no
one obstructs the legitimate pursuit of good health – negative freedom, depends on
society's success in creating an enabling environment in which one can actually
achieve good health – positive freedom. This approach is mostly centers round the
economic capability of individuals in deciding the levels of poverty. Human rights
though not part of the definition of poverty; they help in reducing the levels of poverty
and specify goal oriented policies that require in reducing poverty.
The United Nations Development Fund in a number of reports amply made
it clear that poverty need to be tackled for sustainable development of both
individuals, and nation-states. Accordingly, a number of strategies have been
suggested for effective implementation at all levels. They are:
Accountability:
Accountability plays a vital role in eradicating the levels of poverty and
empowering all the stake holders of rights. All partners in the process of
development need to accept accountability at every level for their actions. This
means as stated in Article 29 of the UDHR, duty occupies a prominent place in
realising various human rights. All duty holders have to decide the type of
accountable role that they can play in the realisation of rights of theirs and that of
others. The legal framework of international and national empowers poor with
human rights and casts legal obligation on others. Accordingly, states, international
organisations and non-governmental organisations have an accountable role to
evolve mechanism to eradicate poverty both at international and national level.

67
 Obstacles to Human Rights and Indian Polity

Non-Discrimination and Equality:

Many a times, poor people, especially economically down trodden groups are
discriminated on various grounds and meets out unequal treatment. Human Rights
framework mainly revolves round the twin concepts of non-discrimination and
equality. It is the duty of all players to empower the poor with inclusive policies to
integrate them with rest of the society. This inclusiveness could only be achieved by
extending their equal participation and abolition of discriminatory practices.
In any society the poor wants their voice to be heard and policy
formulations need to be framed to meet out their requirements instead of receiving
legal regulations from the above. To meet this requirement in any society, the
participation takes place only through free and fair elections at regular intervals and
integrate concerns of poor in decision-making. Right to participation is the central
aspect of human rights to address the concerns of poor. Thus, it is the responsibility
of every state to provide equal opportunities for poor for their able participation in
the governance to address their concerns in the realisation of their human rights in
order to lead of life with liberty and dignity.
India has a third of world's poor. According to the reports of Planning
Commission of India, the poverty rate has reduced from 37.2% in 2010 to 21.9% in
2011-12. However, according to World Bank reports of 2013, a number of people in
the country still leading a life well below the international standard forms of life i.e.,
leading a life with insufficient daily income. Since independence, there is a
tremendous achievement by the government in reducing the levels of poverty from
around 50%. The Government of India, the states every year, evolves a number of
policy formulations to counter poverty and empower the masses to lead a life with
dignity. Poverty deprives people many a times to realise their necessities which in turn
hamper their active participation in various aspects of governance. The World Bank
and other agencies suggested a number of measures to be evolved in order to address
concerns of people living in poverty, which alienate them to enjoy the basic rights of
shelter, food, clothing, health, education and participation. The UN Millennium
Development Goals Report, 2013, appreciates the steps taken by Indian government in
reducing the levels of poverty compare to 80's and 90's, and expects that India may
achieve the target of eradication of poverty by 2015. Though the government may
bring in eradiation of economic poverty, there is still a responsibility lies on the
shoulders of state as stated in Article 38 of the constitution, to empower them in a

68
 Obstacles to Human Rights and Indian Polity

number of ways and means to be ably participate in the governance. At the same
time, evolve inclusive policies to eradicate a number of differential treatments to
melt out to a section of people on the basis of caste, gender and other cultural
practices that still threaten the poor's ability to address and realise the legally
guaranteed rights. Along with the state, the society, especially, the developed
sections of the country, need to cooperate the state in augmenting the rights of poor
through their effective participation in implementing policies of the state to shred
the practices that are discriminatory in nature.
c) Caste:
"Caste is the very negation of the human rights principles of equality and non-
discrimination…The plight of hundreds of millions cannot be justified as age-old
traditions, nor can it be regarded merely as a 'family business'…The time has come
to eradicate the shameful concept of caste. Other seemingly insurmountable walls,
such as slavery and apartheid, have been dismantled. We can and must tear down
the barriers of caste"- Navi Pillay,UN High Commissioner for Human Rights
Caste is a social stratification found in
South Asia. The caste-affected countries are
Bangladesh, India, Japan, Nepal, Pakistan,
Senegal, Sri Lanka, and Yemen, some of the
countries in Africa and in Diaspora (a
distribution of a people, language, or culture
that was formerly concentrated in one place)
of communities around the world. According to UN Experts more than 260 million
(26 Crores) people in the world are facing discriminatory practices basing on caste
system. The caste-based practices have a profound impact on the systematic
violation of human rights upon individuals, communities, societies on wide-ranging
aspects. According to the Report of the International Consultation on Caste Based
Discrimination (2012), the effect of caste based practice on the following aspects:
systemic violence, particularly against women
extreme poverty
degrading untouchability practices (e.g. denial of drinking
water from upper caste water sources, denial of access to
public and religious places)
intergenerational bonded labour and child labour
unemployment or dangerous/degrading employment (e.g.
manual scavenging)
 Obstacles to Human Rights and Indian Polity

restrictions on employment or forced occupations (e.g. prostitution)

lack of access to justice, and discrimination and violence from the police and
justice system
lack of access to, control of, and benefit from resources - prohibition of
ownership of land and property
segregation in housing, school and burial/cremation grounds
de facto prohibition of inter-caste marriage
abuse or discrimination against Dalit children in schools - high dropout rate
from school due to poverty and discrimination
lack of political power or genuine/independent political representation at all
levels
caste discrimination in humanitarian response to disasters or conflicts
discrimination or lack of access to health care - related high maternal mortality.
The United Nation considers such discrimination equivalent to racial
discrimination. The Periodic review reports of UN, and special procedures of the
Human Rights Council basing on their observations, requested member states to
cooperate with it to include the issue of caste-based discrimination as part of the racial
discrimination and to monitor the issue of violation of rights. However, a number of
countries including India oppose to mix up the issue with racial discrimination and
assures UN that at the National level they will tackle the issue on their own.
To tackle the caste based discriminatory practices, a number of strategies
adopted by various international bodies. They are effective civil society strategies;
establishing specific institutions to sternly deal with such adverse practices;
effective usage of communication and information system; adoption of inclusive
policies to bring in such people into mainstream activities of society through
governmental and civil society support etc.
In India, the practice of caste system deprives number of human rights to
various sections of people. The discrimination based on caste had been abolished by
the Constitution of India. The Preamble clearly advocates a democratic constitution to
extend fundamental rights to all without any discrimination or on any social strata.
However, the diehard practices have an impact in modern India and visible especially,
in semi urban and rural areas. The international community considers the
discriminatory practices based on caste within the ambit of International Convention
 Obstacles to Human Rights and Indian Polity

on Elimination of Racial Discrimination, 1965 to which India is a party. The

General Recommendations of the Committee on the Elimination of Racial
Discrimination condemns the discriminatory practices based on caste and by birth.
However, the Government of India refuses the intervention of the UN in its
international affairs and firmly rejects the comparison of caste-based
discrimination on racial basis. In the opinion of the government, caste is a bar
legally and considered only for identifying the economic backwardness of various
sections of people to extend concession guaranteed by constitution to uplift their
status. The government of India since independence adopted a number of
legislations, institutional mechanisms to wipe out caste based discriminatory
practices. Any untoward incident on the basis of caste is punishable under criminal
law and various other laws adopted by the government from time to time.
In spite of the efforts of state, caste based practices are prevalent in India
due to preconceived notations of various sections of people. The government apart
from the existing various strategies that are adopted need to educate the people on a
mass scale highlighting how such practices jeopardizes the rights of not only a
section of people but also the progress of the nation.
d) Inaccessibility to legal redress:
Inaccessibility to legal redressal mechanism constitutes as a basic violation
of human rights, especially, access to justice. Inaccessibility to legal redress may
occur due to lack of proper legislative, administrative, or judicial mechanism in a
state to victims of human rights or civil rights. In case, where in the legal recourse
is provided by a state, vulnerable and disadvantaged people, due to adverse
conditions of economic, social and cultural perspectives prevailing in any society
could not be in a position to access the remedial mechanism provided by a state
also leads to inaccessibility to seek legal redress. In order to prevent such abuses to
victims of human rights violations, international law of human rights recognised
right to access to justice as a basic human right. Before examining the aspect of
inaccessibility to legal redress in Indian context, it is necessary to understand the
concept of access to justice, which is a human right.
Access to justice is a fundamental human right. Theoretically, every country
advocates that Executive, Legislative, and Judicial wings are wide open to prevent any
kind of illegality while tackling the violations of human rights and are have equal
access to everyone to seek remedial mechanism. However, in practice many a times,

71
 Obstacles to Human Rights and Indian Polity

they are far from reality, especially to the sufferers of human rights violations.
According to the principles of international law of human rights, states need to take
steps in an effective perspective to render justice to everyone concerning civil
rights or human rights violations. To achieve effective justice, states must ensure
that justice be provided without any kind of discrimination, and adopt a number of
measures to have access to justice and to seek a remedial mechanism through
constitutions, especially, to address the concerns of human rights victims.
International Law of Human Rights ensures an effective remedy for the victims
of human rights through a number of legal instruments. Article 8 of the Universal
Declaration of Human Rights 1948, prescribes the right to effective remedial
mechanism for violations of human rights. Article 2 (3) of the International Covenant
on Civil and Political Rights, 1966 endorses the right to effective remedy through
judicial, administrative or legislative or by any other legal mechanism that will have
the possibility of rendering judicial remedies to the victims of human rights. The right
to effective remedy further guaranteed by International Convention on the Elimination
of All Forms of Racial Discrimination, 1965 in Article 6, Article 2 (C) of the
Convention on the Elimination of All Forms of Discrimination against Women, Article
14 of the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment 1984 etc. It is an established right of the victims of human
rights or civil rights to seek an effective remedy through national tribunals and other
mechanisms established by a state. At the same, it is an obligation of a state to punish
the offenders and provide compensation to victims including rehabilitation in
necessary cases.
The constitutional framers guaranteed to all,
justice that is socio, economic and political in all
respects, and provided an equal opportunity to realise
the fundamental rights without any kind of
discrimination based on sex, caste, religious,
economical, social, and cultural status through the
preamble, and other provisions of the constitution.
However, inaccessibility to justice results due to a
number of reasons. Firstly, deviation to adhere to
principles of constitution, legislative, executive, and judicial pronouncements at all
times. Secondly, poverty, discriminatory socio, economic and cultural practices,

72
 Obstacles to Human Rights and Indian Polity

illiteracy of knowledge about the free exercise of rights by vast majority of

populace of the polity. Thirdly, non-registration of cases by police authorities at
times, where in the victims are poor or belongs to marginalised sections of society,
or against politically and socially well to do people. Fourthly, huge amount of
litigation costs to approach courts,pendency of cases, problem of hostile witnesses
etc. Fifthly, lack of information about language, procedures of court to users,
lenient attitude of public prosecutors in progression of a case, poor quality of
investigative reports and delay in forwarding to them to court by investigating
agencies etc. Finally, age-old laws, lengthy judicial and administrative procedures,
and ineffective use of alternative judicial remedial mechanism are some of the
chief reasons for inaccessibility of justice to majority of the populace in India.
To remedy this, following positive steps would help to a great extent to
augment to have proper access to justice. Firstly, codification and simplification of
various laws, especially personal and service laws such as Motor vehicles Act, Post
and Telegraphic laws, Railways Act, Labour and social welfare laws, and laws that are
specially enacted to promote the rights of vulnerable and disadvantaged groups.
Secondly, assist the victims of poor and needy accused by providing free legal aid,
encourage the resolution of disputes of long standing by employing alternative
procedures. Thirdly, dissemination of constitutionally guaranteed rights of victim,
Alternative Dispute Resolution methods such as negotiation, arbitration, Lok Adalats,
Legal Aid cells working in law Departments of various Universities and law colleges,
and district level adopting the directives of Supreme Court of India, ensure registration
of cases by police in all circumstances, etc. Fourthly, empowering Panchayats with
judicial decision-making powers as advocated by 73rd and 74th constitutional
amendments, establishing women's courts, human rights courts, as advocated by
various laws of Parliament of India. Fifthly, to realise the rights freely by masses,
especially victims of inaccessibility to justice, educate them about human rights and
fundamental rights as guaranteed by constitution in their vernacular language in an
easy and understandable perspective. Finally, oversee the victims receive adequate
compensation for wrongful or negligent acts of state.
2. Abuse of Executive Power: Corruption-Nepotism
or favoritism
"No man of what state or condition he be, shall be put out of his lands
ortenements nor taken, nor disinherited, nor put to death, without he be
brought to answer by due process of law"

73
 Obstacles to Human Rights and Indian Polity

According to above philosophy

advocated by King John of England in 1215
through the famous Charter of Magna Carta,
rule of law constitutes as a fundamental
basis for governance. This legal dictum of
King John became the basis for Rule of Law
or Due Process in the modern world. Due
process of law means, state has an obligation
to respect the legally guaranteed rights of
persons . Accordingly, any action
contemplated by a state or governmental authority have an effect by the action of
such agency of state either in person or to his or her property, has a duty to issue a
notice in detail and provide with reasonable opportunity to legally defend the claim
of such person whose rights would be in peril. When a state or any of its agencies
initiates action without adopting the above procedure, it would amounts to
subversion of rule of law or abuse of executive power.
All the international legal documents on human rights guarantee the right to
fair hearing in all civil and criminal proceeding before a competent, independent
and impartial tribunal or court established by law. Accordingly, any action of a
state without following the procedures of law or not providing any opportunity to
defend by oneself, and interferes to harm the life and liberty of an individual in an
authoritative manner to rob the rights or property referred to as abuse of executive
power. Many a times, for one reason or the other, state and its agencies exercise
their powers arbitrarily constitutes as violation of human rights. Abuse of
executive power by state or any of its agencies for benefit of few individuals or for
sake of authorities in power without legal recourse, seriously impair Civil,
Political, Economic, Social and Cultural rights. To prevent such abuses, the UN
and its various organs at regular intervals appeal to states to take necessary
democratic steps to stop such abuses, which primarily defeat the purpose of the
catena of legal instruments of international law of human rights adopted by 'comity
of nations.' Corruption is one such issue, which leads authorities of states including
its agencies to bend the norms and favour their kith and kin. The corrupt practices
bring in unlawful gain to some and legal loss to many in the free exercise of
guaranteed human rights both in international and national levels.

74
 Obstacles to Human Rights and Indian Polity

According to the UN High Commissioner of Human Rights, Ms. Navi Pillai,

"Corruption kills. The money stolen through corruption every year is enough to feed the
world'shungry 80 times over. Nearly 870 million people go to bed hungry every night, many of
them children." She further said, "Corruption is an enormous obstacle to the realization of all
human rights — civil, political, economic, social and cultural, as well as the right to
development. Corruption violates the core human rights principles of transparency,
accountability, non-discrimination and meaningful participation in every aspect of life of the
community. Conversely, these principles, when upheld and implemented, are the most
effective means to fight corruption."The statement of the High Commissioner of
Human Rights, clearlyhighlights the evils that are associated with corruption in
realizing the human rights that are guaranteed to individuals.
To eradicate corruption, the UN adopted a convention in 2004 basing on many
years of its work. The convention came into force into force in 2005 with majority of
states becoming parties to it immediately. To help nation- states in their fight against
corruption, the convention for the first time introduces a comprehensive set of
standards, measures and rules that all countries can apply in order to strengthen their
legal and regulatory regimes to fight corruption. It calls for preventive measures and
criminalization of the most prevalent forms of corruption in both public and private
sectors. In addition, it makes a major breakthrough by requiring member states to
return assets obtained through corruption to the country from which they were stolen.
The Constitution of India guaranteed human rights to its populace through
fundamental rights, which are regarded as key provisions to usher the rights of
individual The Supreme Court of India in a catena of cases explained the real
philosophy of the various rights and expanded the provisions of life and liberty by
adding a number of rights to it. At the same time, the Constitution of India provided
the remedial mechanism to prevent the abuse of state against the encroachment of
rights by executive. However, due to economic, socio, cultural backwardness amongst
various sections of the polity, many a times the abuse of executive power by a section
of people in authority is to help the rich and to favour near and dear ones of political
bosses, and in turn to gain either personally or economically. Such deviations and
misuse of power is antithesis to the realisation of fundamental rights guaranteed to
people, especially the rights of disadvantaged and vulnerable groups of the polity.
Corruption and nepotism are one of the chief attributes of abuse of executive power in
several instances by a section of people in various organs of state. These practices
denies the vulnerable and disadvantaged people to have an access to basic services
such as health, education, land, food, shelter and clothing.

75
 Obstacles to Human Rights and Indian Polity

In order to counter such deviate practices a

number of strategies need to be adopted to bring in a ORGANISATION
FOR ECONOMIC
transparent administrative system. Among the various, CO-OPERATION

the strategies developed by OECD (International AND DEVELOPMENT OECD

Organisation for Economic Cooperation and
Development) to tackle the issue of abuse of power for corrupt and nepotistic
practices in Asia and Pacific are worth considering. According to it:
a. Integrity and competency in public officials:Integrity
andcompetency in public officials is the most important aspect. This could be achieved
by adopting fair means of selection and promotion of officials through transparent and
fair means. Adequate remuneration and other perks, introducing code of conduct at
regular intervals, periodic reviews to remove conflict of interests in rules, regulations
and procedures, enacting new legislations repealing the age old laws, to oversee the
non-interference politicians in the functioning of public officials.
b. Public Management System: Public Management System is
anothereffective tool. This could be adopted by introducing wide range of discretionary
provisions, regular interactive sessions between public officials and public; e-governance;
rotation of officials at stipulated intervals; public accountability mechanism through
periodic audits by independent agencies and public-spirited persons etc.
c. States Role in Augmenting Political System:Through
this systemthe state need to fund political parties and election campaigns. It is
necessary to introduce code of conduct for politicians, inducing their role and
responsibility to public at large etc., imparting the comparative administrative and
legislative process and healthy process of administration at regular intervals.
d. Regulation of Business Organization:This aims at regular
periodreview of policies of various business houses and compulsory insistence of
adoption of ethical and moral practices. Regular audit of their role and
responsibility towards good practices and social responsibility factors etc.
Apart from the above, the various committees, commission appointed by
the government from time to time, the numerous judgments of courts highlighted
that strict punishment including dismissals in necessary cases to eradicate corrupt
and nepotism among public officials. At the same time, adoption of simple and
transparent procedures and delegation of powers amongst various officials instead
of concentration of power among very few, impartation of good ethical and moral

76
 Obstacles to Human Rights and Indian Polity

practices at regular intervals; basic amenities, attractive remuneration and promotional

channels certainly help to eradicate the corrupt and nepotistic practices in subverting
the executive power. Apart from the above, strict action be initiated against political
leaders who interfere in the functioning of public officials and use their power to deter
the officials is the most essential ingredient to prevent abuse of executive power
through corrupt and nepotistic practices which in turn augment the realisation of
constitutionally guaranteed fundamental rights by people to a maximum extent.
3. Human Rights and Good Governance
The concept of good governance is
increasingly used in the contemporary era, due to bad
governance by nation-states in the world. The term
governance is not a new term. It is in existence since
olden days. Governance generally means, involving
various players or agencies in the decision making
process on any matter concerning formal or informal
sectors. In decision-making process, government is
nucleus to implement various policies, laws and regulations to render effective
service to people and to work for the progress of a nation. The term governance
normally employed to refer a number of perspectives such as local governance,
state governance, regional governance and international governance.
The promotion and realisation of human rights mainly depends upon the
model of governance adopted by each country. However, arbitrary exercise of
executive powers conferred upon various organs of a state not only brings in bad
governance but also have an impact upon the realisation of human rights of the
populace of a polity in general, vulnerable and disadvantaged groups in particular.
The bad governance, authoritarian rule, regional and international conflicts,
decolonization, the concentration of power amongst few authorities of state,
misdemeanors of a section of people in each society in the promotion of rights of
socially, economically and culturally disadvantaged people's rights, deviance in
implementing the statutes, rules and procedures in decision making process, the
developments of science and technology especially, information technology, entry
of multinational corporations in various fields, insistence of the promotion and
protection of human rights by UN etc., led for the evolution of the concept of good
governance.

77
 Obstacles to Human Rights and Indian Polity

There is no single and exhaustive definition to good governance. There is

no limit in its scope and concept. It is employed to define a number of aspects.
However, the employment of the phrase and its operational part is very difficult to
achieve. According to Office of UN High Commissioner for Human rights basing
on the context and the objectives sought to achieve, good governance need to
encompass the following characteristics, such as; full respect of human rights, the
rule of law, effective participation, multi-actor partnerships, political pluralism,
transparent and accountable processes and institutions, an efficient and effective
public sector, legitimacy, access to knowledge, participation of civil society in
governance, information and education, political empowerment of people, equity,
sustainability, and attitudes and values that foster responsibility, solidarity and
tolerance. But in general, good governance is expected from a state to be
transparent in its dealings include all the players of a polity and outcomes need to
be oriented towards developmental process.
According to the resolution 2000/64 of the
UN Human Rights Council the chief attributes of
good governance are transparency; responsibility;
accountability; participation and responsiveness to
the needs of the people. According to United
Nations Economic and Social Commission for
Asia and Pacific (UNESCAP) good governance
has eight chief attributes.
Participation: Participation of people at various levels of a state including
ingovernance is the key element for realisation of good governance. The government
needs to have a proper communication channel where in it could receive the feedback
of the expectation of people in governance. It may be either through representative
manner or through any other means. The main aspect is the guarantee of human rights.
Rule of Law:Rule of law means, fair implementation of legal rules
andprocedures with a remedial mechanism without any partiality. It also ensures
the full protection of human rights.
Effective and Efficiency: The institutions of state need to efficient to
meetthe requirements of people and produce results that need to meet the expectations
of people. It also implies the efficient use of resources in a sustainable perspective.

78
 Obstacles to Human Rights and Indian Polity

Equitable and Inclusive: The well-being of a society depends upon

theequitable status of all its populace. In order to have such an equitable status, the
socially, economically and other disadvantaged groups of people need to be provided
with opportunities to take part in the activities of society in an equal manner.
Responsiveness: All the institutions need to serve with a time
frame withmaximum result orientation.
Transparency:The decisions taken and their enforcement need to
beaccording to the legal rules and regulations. It also includes people need to have
an information free society, with a responsive free media and to have an access in
decision-making process.
Accountability: Accountability is a holistic concept where in all
thestakeholders which means, the public, private and civil society orgnisations all of
them together accountable to the society for their acts. The quantum of accountability
depends upon the nature of activities of each organ. To achieve accountability, one of
the basic features of it is, rule of law need to be adhered without any deviance.
Consensus oriented: In every society, there are a number of actors.
All ofthem need to evolve good strategies with consensus to achieve them keeping
the community interests at par. At the same time, a long-term objective perspective
is needed for sustainable human development and how to achieve the goals of such
development need to be planned in a strategic perspective to counter the problems
with a progressive approach.
Human Rights and good governance have a number of links as they are
mutually reinforcing each other. Both of them together indicate a number of
standards, which performers need to adopt. They jointly promote mainly
strengthening of institutions, democratic participation, observance of rule of law,
effective service delivery mechanisms, inculcate anti corruption and non-nepotistic
practices in governance. The UDHR through article 21 and 28 advocates the
concept of good governance at all levels including the international participation.
The Covenants on Civil and Political Rights, Economic, Social and Cultural Rights
and a number of documents advocate for the promotion of human rights, which
help to promote the concept of good governance. The Millennium Development
Goals also endorse the concept of good governance, which is the key to realise
human rights.

79
 Obstacles to Human Rights and Indian Polity

The Constitution of India advocates the view of the UN in the promotion of

human rights and good governance. The government after independence introduced a
number of schemes, other plans to eradicate poverty and to bring in the disadvantaged
sections of people into mainstream activities of society. However, illiteracy, poverty,
unemployment, corrupt and nepotistic practices of a section of people, criminalization
of politics, and a number of other instances have left a blot on the governance of the
country. Though the government introduced right to information, right to education
and other policies to bring in inclusive growth of the disadvantaged sections, a number
of initiatives are required to meet the expectations of people and that of international
community. It is the duty of state to include civil society in decision-making process,
introduction of specific programmes with time frame to reduce poverty and
malnutrition in children, develop the status of women, especially the economic
scenario. Funding of election expenditure, encouragement of alternative dispute
settlement, evolve strategies to reduce pendency of litigation in judiciary,
establishment of human rights courts as contemplated in the Human Rights Act,
reduction of governmental expenditure, steps to promotion of fundamental rights to
their realisation in an effective perspective, compulsory education of human rights,
more transparent methods of governance etc. These steps will definitely increase the
potential of India as a vibrant democracy.
4. Sum Up:
The constitution and the state have guaranteed human rights. However, the
inequalities in society present a bleak picture for their augmentation. The number of
problems that are plugging the polity in general, and lack of empowerment of
individual in particular leads to abuse of executive power by vested interests. In order
to drive away the maladies, people need to seriously discharge their duties without any
type of fear or favoritism. These will certainly lead to establish good practices in
governance to evolve effective solutions for the problems of past, present and future.

80
 Obstacles to Human Rights and Indian Polity

MODEL QUESTIONS
1. The United Nations in its population report………..highlighting the
significance of controlling population
A. 2012
B. 2011 (A)
C. 2010
D. 1988
2. OECD means ……………………….
A. Organisation for Ecological Corporation and Development
B. Organisation for Economic Cooperation and Development (A)
C. Organisation for Educational Cooperation and Development
D. None of the Above
3. According to United Nations Economic and Social Commission for Asia
and Pacific (UNESCAP) good governance has ………… chief attributes.
A. 7
B. 6
C. 5 (D)
D. 8
4. The UDHR through ………….. advocates the concept of good
governance at all levels including the international participation.
A. article 21 and 28
B. article 12 and 18 (A)
C. article 13 and 28
D. article 16 and 28
5. Rule of law means,…….. implementation of legal rules and procedures
with a remedial mechanism without any partiality.
A. Fair
B. Unfair (A)
C. Bias
D. None of the above

81
UNIT IV
Role of Advocacy Groups

CHAPTER IV
ROLE OF ADVOCACY GROUPS
The politico-legal process for the adoption of Human Rights is universal. The aim of
all legal instruments at International, Regional, Sub-Regional, National, and Local plane is
to activate the individuals politically to safeguard their rights guaranteed under law. The
Economic, Social and Cultural rights impose duties and obligations on the state to strive for
the promotion of welfare of all sections of society to realise their guaranteed civil and
political rights in an equal fashion. However, a number of issues such as poverty,
malnutrition, threats to peace and security, underdevelopment, asymmetrical status of
individuals in society, etc, are the irritants in realising human rights fully, to lead a life with
liberty and equality of status as guaranteed. To help the victims of human rights, a number
of advocacy groups and a number of groups of people plunge into action not only to share
the miseries, but also to fight with the agencies of state. This chapter in a shuttle perspective
introduces to the student the significance of various advocacy groups and the role played by
them in realising the dreams of victims of human rights violations.

1. Introduction:
The realisation of human rights mostly depends upon promotional activities
initiated by nation-states at every level, especially, on the articulation, think
globally and act locally. Any subversion in their commitment to engage in all
human beings brings in a number of issues on to centre stage that leads to denial of
guaranteed rights and the struggle to their restoration. In order to help people
whose rights are in quandary, civil society and a number of advocacy groups have
emerged at global and national levels to defend the rights of victims. These
advocacy groups popularly referred to as Human Rights
Defenders. In view of their increasing number, active
participation individually and of groups, many a times, the
agencies of state question both of their legitimacy, their
character, role in the augmentation of rights and status to
fight on behalf of others.
A number of such incidents and problems
encountered by advocacy groups and individuals across the World, the United Nations
adopted a declaration on the rights and responsibilities of individuals, groups and
organs of society to promote and protect universally recognised Human Rights and
Fundamental Freedoms in 1999 in order to extend legitimacy to the advocacy groups.

82
 Role of Advocacy Groups

The resolution recognises that ―everyone has the right, individually and in
associationwith others, to promote and to strive for the protection and realization
of human rights and fundamental freedoms at the national and international
levels.‖ The UN furtherto protect the rights of these groups or advocators created a
post of Special Representative of the UN Secretary-General on Human Rights
Defenders in 2000, which was later replaced by the UN Special Rapporteur on
Human Rights Defenders in 2008. The Special Rapporteur suggested a number of
protective mechanisms to the defenders of human rights, which include dialogue
with states to prevent intimidating acts against such defenders of human rights and
requested nation- states to adopt specific mechanism to prevent such abuses etc.
2. Role of Advocacy Groups:
Human Rights are older than human history. As natural rights, they are part
of nature. Every society in one form or the other has advocated them, since the
evolution of humanity. However, they have undergone a revolutionary change with
the Declaration of Magna Carta in 1215, followed by a number of texts. A final
shape was given to them after the adoption of the Charter of UN and Universal
Declaration of Human Rights. In spite of long history, revolutionary change in their
articulation, most people in the world are fully unaware of their rights. Advocacy
groups play a vital role to prevent their abuse and to help victims of human rights
to seek justice within the guaranteed political and legal structure at every level.
3. Professional Bodies: Media, Role of
Lawyers-Legal Aid a) Media:
Media means medium of communication. It is a broad term to represent print
and audiovisual broadcasting, writing visually with pictures, reporting news etc.
Accordingly, media represents newspapers, magazines, Television, Internet etc.
Human rights are age old. However, in any country, the exact content of rights and the
remedial mechanisms are known to only a section of populace. The rights, which
citizens enjoy, vary depending on the economic, social, political and cultural
developments prevailing in each society. In this context, media will play a vital role in
the promotion, protection and realisation of human rights. Media being a powerful
medium could give publicity to violations of human rights, publicity to organisations
and individuals involving in the promotion of human rights education. It can educate
people, suggest the ways and means to address the violations.
In the contemporary era, with the help of technology media could bring

83
 Role of Advocacy Groups

experts from any nook and corner of the world on

any issue through live discussions and render the
ways and means to counter violations in the
realisation of human rights. It has the ability to
mobilise people and bring the perpetrators to justice.
A number of people who constantly violated human
rights including that of heads of nations around the
world been brought to justice through the extensive
coverage and reports of media. At the same time,
being a fourth estate of a state, it needs to exercise
restraint and caution. The freedom extended to press for its contributory role to
promote values of democracy and human rights should not be misused. It needs to
adopt a self-regulatory mechanism to present the truth to help victims of human
rights to seek justice. It should take care of content of the report, language needs to
be decent, employ only well qualified and trained reporters, exercise restraint in
publishing materials, reports, photos that create tension or sensitivity among
various sections of society.
In India media plays a vital role since olden days. However, it was limited to
few as the medium of communication and other aspects were written on palm leaves.
The modern medium of print communication was started during the days of British
East India Company. James Augustus Hickey, an English man started the Bengal
Gazettee on January 29, 1780 and also popularly known as ―Calcutta Advertiser.‖ The
East India Company did recognise freedom of speech and expression as a basic right.
It took several steps to prevent the printing of Bengal Gazettee including finally
closing it down in 1787 and sent back Hickey to England. However, the initiation of
Hickey laid foundations for free press in India. In 1780 Indian Gazette, Calcutta
Gazette in 1784, Bengal Journal in 1785 led other parts of the country to start print
medium in the country. The Madras Courier (1785), Mumbai Herald in 1789 and other
papers started slowly gaining ground for freedom of press and communication. The
change of Policy of strict censorship of media by Lord Hasting in 1818, led for the
evolution of a number of newspapers in India. The First paper published in an Indian
language is said to be in Kannada. The efforts of a German led for the publication of
first vernacular newspaper by name Mangalura Samachara in 1843. This led for the
evolution of vernacular newspapers in many other languages in the country. Among

84
 Role of Advocacy Groups

the oldest papers, the Amrit Bazar Patrika in Bengali is still popular paper in
Bengali. The printing of large number of papers, and Sir Thomas Munro's reforms
package, followed by Sir Metcalfe's efforts led the British Government to enact the
first comprehensive Press Act in 1867, which repealed the 1835 Act. This Act
named as Press and Books Registration Act, which is still in force with
amendments made to it in later periods. Apart from this act, a number of acts have
been enacted which laid the legal basis for freedom of speech and expression.
After the adoption of constitution, freedom of speech and expression
constitutes as one of the fundamental determinant to realise the fundamental rights
as guaranteed by constitution. The concept of right to information is the basic right
that encompasses all rights in their realisation. The Supreme Court of India
(BennettColeman and Company of India v. Union of India) in 1986 held that
though it iswell within powers of a state to take preventive steps of misuse of
freedom of speech and expression in public interest, any preventive measures that
directly impair to prevent the ideas of press to publish constitutes as a serious
encroachment on the cherished right of free speech and expression. At the same
time, it cautions press not to publish any false news items in Hari Jaising in 1996.
Media plays an enormous role in a number of issues in guiding the state and as
well as public in the realisation of human rights. The significant schemes, policies of state,
political parties, leading judgments of courts, efforts of various institutions, individuals on
the promotion of human rights brought by media constitutes as an important source. The
number of schemes such as, construction of houses, schools, educating masses, helping
people by liberal collection of donations from public in emergencies or in disasters etc, are
some of the key initiatives initiated by media could be considered as their contribution in
the augmentation of human rights in the country, apart from the expression and
dissemination of news and views to public at large. A free and responsible media could be
a watchdog not only to prevent violations of human rights but could effectively
disseminate the ideals of human rights for their promotion.
b) Role of Lawyers-Legal Aid :
Legal professionals play a vital role in the promotion and protection of Human
rights. Though it is argued that the promotion and protection of human rights is every
ones field, legal profession and the professionals of law play a vital role in the
development of principles and application due to their close connection with law.

85
 Role of Advocacy Groups

Legal professionals include lawyers, judges, legal officers,

legal advisors, professors of law and anybody who practices
law and works for the promotion of human rights (otherwise
referred to as free lawns lawyers). Lawyers through their
interpretative skills temper the principles of law to evolve
new principles and at the forefront in advocating the
promotion of human rights through their extensive legal
debates, writings and through participation in condemning
the repressive movements, which violate human rights. In
the contemporary era, across the World, on a number of
occasions lawyers and other legal professionals played a crucial role in the
development of laws relating to prohibition of torture, augmentation of women's
rights, prohibitive laws on trafficking, etc. Apart from lawyers, other legal
professionals such as judges, legal advocators and professors of law also play a
vital role in tampering the principles of law and stand to oppose the policies of
state which threaten the enjoyment of human rights, especially during emergencies,
war periods and in authoritarian regimes.
In the context of India, a number of legal professionals, which include
lawyers, played a significant role in the development of human rights. A number of
lawyers through public interest litigation brought in a number of suits, which
became responsible for expansion of the concept of life and liberty under Article
21 of the constitution of India. The Judiciary has added a number of rights, which
were not explicitly defined in the constitution, as a part of Life and
liberty. The litigation by lawyers and professors in India led
for the development of rights of women, equal pay for equal
work, environmental protection laws, child welfare,
protection of rights of HIV/AIDS patients, prevention of
domestic violence, torture in prisons, speedy justice etc.
Apart from practicing law, often a number of lawyers
and judges joined together to educate masses and help people
in need of protection of human rights through various organisations and forums
such as lawyers collective, lawyers club etc. to educate and to fight for the
promotion of rights of citizens.

86
 Role of Advocacy Groups

Legal Aid is another important platform to realise and promote human rights.
Though there are attempts in France in 1851 to introduce legal aid, it was USA, which
laid the seeds for free legal aid with the establishment of First Legal Aid Society in
New York in 1876. In 1949, England introduced the Legal Aid and Advice Act.
Reginal Herber Smit advocated the concept of free legal assistance for the poor in
1919 in his book, Justice and the Poor. He advocated that it is an obligation of legal
professionals to defend the cases of every one including the poor. Legal Aid means,
rendering justice to poor people without charging any fees to address their grievances.
In India since 1952 attempts were started to address in the issue of legal aid
through conferences, seminars, conferences of Law Ministers and Law Commission of
India. In 1960, certain guidelines were framed to offer legal aid and were initiated in a
number of states through law boards. In 1980, the Government of India established a
committee under the chairmanship of former Justice P.N. Bhagwati on the name of
committee for Implementing Legal Aid Schemes. This committee introduced another
significant indigenous concept of Lok Adalat (People's Court) which disposes
the cases through conciliatory means in the presence of judicial officers. In 1987, the
Government of India enacted the Legal Services Authorities Act with an aim
uniformly to implement the justice dispensation system as under sec. 39 (A) which
impose an obligation on the state that the operation of the legal system promotes
justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by
suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disability.
The same was guaranteed under Articles 14 and 22(1) of the fundamental rights that
equality before law and a legal system need to promote justice to all and equal
opportunity be provided.
The Bar Council of India considering the significant role of the legal aid
many university departments of law and law colleges in the country established
legal aid cells to offer dispute redress mechanism in a free and fair manner to poor.
To render justice through this system, legal professionals play a vital role in
promoting human rights of citizens.
c) Educational Institutions:
Education plays a vital role in the promotion and dissemination of human
rights. Education being the potential tool to metamorphose any society, individual or

87
 Role of Advocacy Groups

institution, the framers of Universal Declaration of Human Rights through Article

26.2 entrusted the duty to educators to bring in social order to foster human
personality in understanding, strengthening and promotion of human rights. The
World Conference on Human Rights in its Vienna Declaration and Programme of
Action (1993) emphasized the significant role played by education and educational
institutions. Accordingly, it requested nation-states to take necessary steps to
inculcate the philosophy of human rights through all means of education and all
types of educational institutions to eradicate illiteracy, to equip people to counter
the maladies of human rights violations. Accordingly, the United Nations declared
the period 1995 to 2004 as Human Rights Education. The UN emphasizing the role
of education and educational institutions in 2011 declared that human rights
education is a lifelong process it needs to be imparted continuously.
The nation-states immediately after the establishment of the UN, in 1945
established United Nations Educational, Cultural and Scientific Organisation was
established (UNECSO) with a firm belief that education and educational
institutions play a vital role to achieve peace by guiding nation-states through the
intellectual and moral solidarity of humanity. Since its establishment to strive to
achieve the object, UNESCO drew a number of plans to inculcate the significance
of education, especially human rights education to oversee every child in the world,
to receive qualitative education as a fundamental human right for the all round
human and sustainable development. It offers a number of programmes in every
field of education; adopt policies that are suitable for the promotion of education in
general and children education in particular.
Apart from UNESCO, the Officer of the High Commissioner for Human
Rights (OHCHR) established sixty years ago as a small division to promote human
rights. However, with the growth and significance attached to human rights by UN
in 1993, the General Assembly expanded the centre for human Rights as OHCHR.
The OHCHR has developed a number of education series to impart human rights
from primary level to research perspectives by educational institutions. It works
with a number of organisations of UN and with member states to develop plans and
over see impartation of human rights education.
Educational institutions need not to be looked as training centers to impart
certain kind of skills and knowledge to students, but need to be considered as
institutions, which impart the process of socialization. This is a most important and

88
 Role of Advocacy Groups

powerful too, as they train pupil in various

facets such as life skills, socialization, cultural,
moral, ethical values, which equip them with
sustainable developmental attitudes apart from
knowledge-based hubs. The UN considering
the role that educational institutions play in the
enjoyment and realisation of human rights
adopted a number of declarations requesting
the nation-states to impart Human Rights on a
compulsory basis from primarily level to
university level. Accordingly, UN and its organs adopted a number of strategies to
impart human rights education at different levels.
According to various instruments at the primary level, the philosophy of
human rights needs to be taught in a simple and understandable perspective with
simple cartoons and illustrations. At the secondary level, students need to be
imparted about the UN and the initiatives in developing human rights. At the
collegiate level, the course structure needs to be focused towards appreciation of
the critical components of human rights. At this stage, the students need to be
trained with practical dimensions to search solutions to real problems of society. At
the university level, the students need be oriented to appreciate the technical
mechanisms of international and national spheres and be asked to prepare modules
interlinking various subjects incorporating the value systems advocated by UN in
its various documents. At the research level, students are guided to examine issues
that are internationally and nationally important to identify remedial mechanism
with an orientation of sustainable development. The entire curricula need to orient
the duty concept and interlink with rights and duties.
Indian philosophy from ancient to modern times advocates common
brother-hood without any kind of discrimination and develop a duty conscious
citizens. However, the invasion of foreign rule in middle and modern periods
changed its philosophical base and introduced the rights centrist education on the
name of modernization. Nevertheless, the cherished ideals of freedom movement
lead the constitutional framers to reintroduce its ancient ideals of value oriented
duty bound society through constitution.
In tune with the ideology of the constitution, the government has taken a

89
 Role of Advocacy Groups

number of steps to introduce value based human rights education. However,

unfortunately majority of the instruments remain as instruments and efforts for the
promotion of human rights education is still in its infancy in the country. The UGC
taking into consideration of the Plan of Action on Education for Human Rights and
Democracy adopted by the World Congress on Human
Rights in 1993, and in response to the clarion call of
Ministry of Human Resources Development developed a
number of guidelines to promote HRE at the University
level. Apart from the above, the Human Rights Act 1993,
clearly emphasies the significance of importance of Human
Rights Education and the role to be played by NHRC, State
Human Rights Commissions and educational
[Link] late a number of institutes realising the significance and taking efforts
for introduction of teaching Human Rights education. The Institute of Human Rights
Education, Madurai took a number of efforts in the promotion of human rights literacy
and adopted a number of schools since 1997. With the same aim University of pune,
since 2010 offering Human Rights Education on a mass scale.
The impartation of human rights education certainly empower people to
evolve solutions to a number of issue that are plaguing the societies across the
world and could create a congenial atmosphere where in every one can lead their
life and liberty without any distortion, miseries, and could establish peace and
security, the prime objective of international law of human rights.
d) Role of Corporate Sector
There exists an inseparable link between commerce and society. Companies
being part of society as legal persons, they
need to discharge their societal obligations,
to protect the rights and obligations of
various stakeholders, such as shareholders,
employees, obligations and be legalistic in
their transactions to be good corporate
citizens. The evolution of globalization,
developments in science and technology,
and a number of political, socio, economic,
cultural, and legal aspects led the corporate houses to expand their business beyond

90
 Role of Advocacy Groups

borders. In their competitive quest for supremacy and

to expansion of trade and business houses, there is
every possibility that they may relegate to a secondary
position of their legal obligations towards society and
a number of stakeholders, especially, in protecting the
rights of its employees.
To regulate the behaviour of corporate houses, a
number of rules and regulations are in existence in both
national and international law. However, end of cold war
and the fourth phase of globalization account not only for the rise of dominance of
corporate house over political, social, economic, for legal and cultural perspectives
in the world, but also account for increased debate of human rights in every field
which includes business. Further, the dominance of Multi National Corporations in
expanding the business and other issues of governance in the developing world, led
the UN to focus its attention on the increasing role of the relationship between
human rights and business. In the year 1999, the Secretary General of the UN in his
annual meeting of the World Economic Forum in Davos launched a Global
Compact which called upon business to "support and respect the protection of
internationally proclaimed human rights within their sphere of influence and make
sure they are not complicit in human rights abuses.‖ It articulated broadly ten
principles basing on international legal standards agreed universally which needs to
be respected and implemented by business houses.
The principles are:
1. Businesses should support and respect the protection of international
human rights within their sphere of influence;
2. Make sure their own corporations are not complicit in human rights
abuses.
3. Businesses should uphold the freedom of association and the effective
recognition of the right to collective bargaining of labour ;
4. The elimination of all forms of forced and compulsory labour
5. The effective abolition of child labor;
6. The elimination of discrimination in respect of employment and
occupation.

91
 Role of Advocacy Groups

7. Businesses should support a precautionary approach to environmental

challenges;
8. Undertake initiatives to promote greater environmental responsibility;
and
9. Encourage the development and diffusion of environmentally friendly
technologies.
10. Businesses should work against corruption in all its forms, including
extortion and bribery.
Basing on these principles, to extend support and help the corporate houses
to adopt the mandate of the international community for the promotion and
protection of human rights launched a special website as [Link]. Through
this web access, business houses could interact with the concerned UN organs and
to know their rights and responsibilities in the promotion of human rights. Basing
on the reports of abuse by corporate houses of the Office of the High
Commissioner for Human Rights, in 2005 the UN appointed John Ruggie, a
Professor of Harvard University as a special representative of the Secretary General
to submit a report. The final report of Prof. Ruggie in 2008, found that apart from
various sectors, the extractive sectors, oil, gas, and mining are account for two-
thirds of abuses of human rights in the world. The UN is taking a number of steps
to oversee the promotion of human rights through its global compact governance. It
also appealed to states to oversee the implementation of human rights principles by
business establishments in their respective territorial jurisdictions, and to amend the
national laws of business incorporating the principles of human rights to be
followed by corporate houses as a part of their social responsibility.
India has a long tradition of involvement of business in social welfare and
other developmental promotional aspects of the governance in the country. In 2011,
the Ministry of Corporate Affairs of the Government of India
adopted a set of principles on Social, Economical and
Environmental (updating the original principles issued in
2009) responsibilities to adopt voluntarily by business.
1. Businesses should conduct and govern Ministry of
themselves with Ethics, Transparency, and Corporate Affairs
accountability.

92
 Role of Advocacy Groups

2. Businesses should provide goods and services that are safe and
contribute to sustainability throughout their life cycle.
3. Businesses should promote the well being of all employees.
4. Businesses should respect the interests of, and be responsive towards
all stakeholders, especially those who are disadvantaged, vulnerable
and marginalized.
5. Businesses should respect and promote human rights.
6. Business should respect, protect, and make efforts to restore the
environment.
7. Businesses, when engaged in influencing public and regulatory policy,
should do so in a responsible manner.
8. Businesses should support inclusive growth and equitable development.
9. Businesses should engage with and provide value to their customers
and consumers in a responsible manner.
It requests every kind of business need to integrate these principles
voluntarily. The guidelines also offer strategies for Responsible business and
approach the ways and means to integrate the principles. The Government also
established Indian Institute of Corporate Affairs in Delhi to specially focus on the
needs of business and to aid and assist both the government and business. Apart
from the above, it is taking steps to integrate the principles by amending or
enacting legislations in the area of corporate law and governance.
Business is an integral part of society need to observe all the human rights
without any deviation. It is the duty of corporate houses, business schools to impart
the principles of human rights for the healthy promotion of business to prevent any
kind of abuse of rights in the corporate sector and in society.
e) NGOs':
In all round development of a state and people, capacity development plays a
vital role. Capacity development implies strategic planning with a focused attention of
state in every sector especially, education and health sectors, which play a vital role for
the development of a state and in the promotion of human rights. In the case of
individuals, capacity building imparts the process of development and knowledge
about the rights and obligations. Capacity building, in other words, empowers people

93
 Role of Advocacy Groups

to secure the ways and means of guaranteed rights,

impose responsibility on state to enhance its
capacity to meet the requirements of people. Many
a times, for varied reasons, states fail to live up to
the expectations of people, which ultimately create
a vacuum. As an offshoot to fill the gap, to achieve
the capacity-building concept, Non Governmental
Organisations came into existence. They mainly
prevail upon governments to fill the gap and
demand that for strategic priorities with a focus to
enable the disadvantaged sections of society to
reach and able to enjoy their guaranteed rights. NGOs’ in a nutshell, act as critics,
capacity builders, innovators, advocators and as policy partners in general and in
particular in promotion and realisation of human rights.
Non Governmental Organisations play a vital role in the local, regional, national
and international promotion, protection and realisation of human rights. They have a long
tradition to take part in the promotional aspects of human rights through advocacy,
mobilization, capacity building, and work for a group or in general. In 1950, the
Economical and Social Council through resolution 288 (X) extended consultative status to
NGO is in tune with the objectives of Article 71 of the United Nations Charter. According
to ECOSOC as defined in 1996, NGO means, ―any such organisation that is not
established by a governmental entity or intergovernmental agreement to work in
conformity with the spirit, purpose and principles of the UN Charter, with a recognised
standing in the field, with democratic organisational structure, and have authority to speak
for their members, with an appropriate accountability mechanism.‖ Apart from the above
criteria, they should be non-profit making, a political in nature and registered according to
the law of the country where they are primarily established.
NGO's which work for the promotion of human rights may be referred to as
Human Rights NGOs. This type of organisations mainly works for human
development, humanitarian aspects and aspects of environment. They may work either
directly or indirectly. Some of the organisations are specialized in a particular area and
they work to enrich that area and demand for the implementation of existing
international treaties or bring in pressure on the nation-states and international
organisations to draft new regulations on any specific area. Many a times they choose

94
 Role of Advocacy Groups

to bring pressure through international forums on the governments for the

implementation of international human rights legal regulations at domestic level.
In the national level, they are always in the forefront to bring in desired
reforms to prevent abuses in any area. It was the continuous fight by the NGOs’, a
number of new legislations are adopted and existing ones have been amended in
India. Environmental Protection Act, legislations on women's rights, gay and
lesbian rights, recognition of live in relationships, right to food, and a number of
other aspects came into existence.
The increasing role of NGOs’ is a welcome feature. However, they need to
adopt transparent methods in their strategies and handling governments without
resorting to corruption and other abusive practices. Any deviations in their motto
not only cripple the motives, but also lose the confidence of people and state.
4. Sum up:
The subtle discussion on the role of advocacy groups amply brings in the
important role played by them in the promotion of human rights. In a number of
circumstances, they work not only as advocacy groups but also cautious agents to
suggest remedial mechanism to state and international organizations for the
betterment of their future policy perspective in augmenting human rights at every
level.

95
 Role of Advocacy Groups

MODEL QUESTIONS
1. James Augustus Hickey, an English man started the Bengal Gazettee
on January 29, 1780 and also popularly known as “…………...”
A. Mumbai news (B)
B. Calcutta Advertiser
C. Madras Images
D. None of the above
2. Though there are attempts in France in 1851 to introduce legal aid, it was
……… which laid the seeds for free legal aid with the establishment of
First Legal Aid Society in 1876.
A. India
B. United Kingdom (C)
C. United States of America
D. Canada
3. UNECSO means
A. United Nations Educational, Cultural and Scientific Organisation
B. United Nations Environmental, Cultural and
Scientific Organisation (A)
C. United Nations Educational, Cultural and Social Organisation
D. United Nations Economical, Cultural and Scientific Organisation
4. In 1949, ………….introduced the Legal Aid and Advice Act.
A. India
B. Australia (C)
C. England
D. None of the above
5. In 1980, the Government of India established a Committee under the
chairmanship of former ……………. on the name of Committee for
Implementing Legal Aid Schemes.
A. Justice Krishna Iyer
B. Justice Gajendragadkar (C)
C. Justice P.N. Bhagwati
D. None of the above

96
 Conclusion

Conclusion:
The first book introduced the conceptual perspective and the evolution of
international law of human rights. The Second book deals with the rights of socially,
economically, and culturally disadvantaged groups of people and the efforts
undertaken by international and national legal systems to promote ways and means by
extending concessions to achieve their rights to attain the status of equality.
The brief overview in this third and final book in the series on Human Rights
and Duties in India: Law, Policy, Society and Enforcement Mechanism presents that
whatever the principles and theories advocated at the international plane, they need to
be nurtured and implemented at the national level. The implementation process at the
national level ensures that there exists an enduring relationship between international
law and municipal law. States and their legal policies and enforcement mechanisms
prove to be laboratories to result in further augmentation of legal principles for the
community of nations and people of the world.
The examination of relevant constitutional provisions, enforcement
mechanisms and the role played by human rights defenders certainly opens the
horizons of every one to decide the type of role that one has to play in the
promotion, protection and realisation of human rights. Being citizens of a value
based, culturally diversified and advanced country in the World, it is a primary
duty of every one of us to extend their helping hand in any manner that is possible
to augment the philosophy of human rights.
As rightly advocated by the Preamble of the constitution, to achieve justice,
liberty, equality and fraternity in their true spirit as oriented, every one of us need to
take a pledge to discharge the duties as advocated by human rights and the
constitution. The discharge of duties with all sincerity in true spirit will certainly
augment the rights as guaranteed by law. Any deviation in the philosophy would lead
to create chaos in the augmentation of the fundamental freedoms of individuals.