Compiled By- Surya Pratap Singh Naruka

Module 1

Human Rights in Their Historical Perspective

No one culture and no particular political or legal tradition can claim a copyright on the concept of human
rights or hold a patent for its practical application. The validity of the concept and the strength of its appeal
arise as a result of synthesis of all the great moralities. Various cultures, diverse political and legal traditions
(ददद, ददद, ददददददददद or country, period and circumstances) on which we hold the concept of
humanity. But in recent traditions, we are living in an age where human rights have not only found a positive
impression in national laws but have been embodied in international law as well.
The concept of human rights is not a modern thought as it appears to be. The roots of human rights are very
deep in the eternity in the ancient world and ancient most cultures which have been rooted out by passage of
time and rule of Human Atrocities or Barbarism of certain tribes.
The roots of Human Rights are very deep in the eternity in the ancient and ancient most cultures which have
been rooted out by the passage of time and rule of human atrocities or barbarism of certain tribes.

i. At International Level
- England
 On 12th June 1215, Magna Carta was signed. In 1628, Magna Carta was buttressed by
Petition of Rights. Habeas Corpus Act was enacted in 1679. Bill of Rights was passed in
1689.
 These Acts paved the way for Parliamentary Supremacy over the Crown and he give
documentary authority for the Rule of Law in England.
 Similarly, United Nations was formed on same lines in 1945.
- Greece
 In ancient Greece, period in which Human Rights were recognized as ‘Natural Rights’ of
men. It has been illustrated by a Greek Play “Antigone’s Brother” in which “Antigone’s
brother was killed while rebelling against the king and his burial was prohibited by King
Crown. In defiance or disobedience of King’s Order, Antigone buried her brother and she
was arrested for violating the order of the King. She pleaded that she acted in accordance
with immutable unwritten laws of heaven which even the king could not overrule. Finally,
the king has to concede to this plea”.
 Watch your Thought, they become your Words. Watch your Words, they become your
Action. Watch your Action, they become your Conduct. Watch your Conduct, they become
your Character. Watch your Character, it become your Destiny.
 Plato [427-348 BC]

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He was the earliest writers in Greece who advocated the universal standards of ethical
conduct. There is a universal consciousness in the universe. Some Rights were there like,
No Discrimination to Foreigners, Right to Equality which all were creation of Natural Law.
 Aristotle [384-322 BC]
Wrote In Politics (book), that Justice, Virtue and Rights are same but they change in
accordance with different kinds of constitution and circumstances.
 In Greek City States, the citizen enjoys some basic rights even before the formulation of
Natural law Theory by Stoic Philosophies.
 Some basic rights before Natural Law theory in Greece were:
1. Right of Freedom of Speech called as Isoguna in Greece Language;
2. Right to Equality before Law was called as Isonomia in Greece Language;
3. Right to Equal Respect for all called as Isotomia in Greece Language;
4. Right to be Elected to Public Office called as Jus Honorium;
5. Right to Access to Justice called as Jus Actions;
6. Right to Trade called as Jus Commercie.
- In Middle Ages, the scholastic philosophers like Abelard [1079-1142] and Thomas Acquenes
[1224-1274], the most original thinkers of their times, laid stress upon the concept of Natural Law
as the Higher Principles of Law to be derived from ‘Reason’.
- Renaissance [15-16th Century]
The Renaissance Reformation in 15-16th century led to revolt against the supremacy of Church on
Temporal Affairs of State.
Grotius [1583-1645], a philosopher said Natural Law is the Dictate of Right & Natural law would
remain valid even if God did not exist.
- Social Contract Theory
The Doctrine of Social Contract was closely linked with the theory of Natural Law because the
basis upon which the Natural Law theories were formulated was the same for the social contract
doctrine also. This Doctrine became popular during 16-17th century through the writings of such
political philosophers as Thomas Hobbes [1588-1679], John Locke [1632-1704] and Jean Jacques
Rousseau [1719-1778].
In general, they took the help of notion of Social Contract to explain the relationship between
individual and the society
- American Revolution
It originated as the Colonial Revolt of 1763. There were many facts which contributed towards the
rise of this revolt. For instance, the growing importance of Natural Rights, teachings of the writers

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of Social Contract Doctrines, the British Bill of Right of 1689 and Coercive Action of George III
[1768-1820].
On the basis of inalienable rights like Life, Liberty and Equality, they got independence on 4th July
1776.
- French Revolution
The French Revolution was inspired upon those principles which were set in motion by English
and American Revolution in 1789. There was social and economic disparity in the Society and
injustices of the French Ancient Regime.
Declaration of Rights of Men and Citizens were acknowledged in 1791.
- Various organizations were setup for furthering Human Rights such as:
1. General Assembly
2. ECOSOC
3. Commission on Human Rights under Art. 68 of UN Charter
4. International Bill of Human Rights
5. UDHR, 1948: Due to 1st and 2nd World War and Nazi Atrocities etc.
6. International Convention on Civil and Political Rights, 1966
7. International Convention on Economic, Social and Cultural Rights, 1966.
ii. At National Level
1) Religion
- It is another important source of Human Rights in which different religions have given their
contributions to the following:
Freedom, Fraternity, Dignity, Equality, Tolerance, Service Spirit, Love, Harmony
- The conception may be felt to originate the ideas of mercy, kindness, pity on human beings
in various scriptures such as:
a) Vedas
 These are the most ancient or the first religious books of mankind revealed in
Aryavarta (the great land of Aryans).
 Philosophy envisaged in Rigveda commands that all human beings are equal and
that conduct which is just and based on equality.
 Yajurveda contains the friendly relations of all creatures of the world, i.e.,
Vasudhaiva Kutumbakam is preached in Vedic literature.
b) Bible
 It is the holy book which contains some basic human rights such as:
Slavery is Prohibited, Justice for Poor & Backward, Racial Equality, Fair
Treatment to Strangers or Foreigners, Security to Labour Class.
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c) Islam
 Quran Shariff contains principles said by Mohammad Saheb or Prophet
Muhammad as it is the Holy book which contains some basic human rights such
as:
Right to Protection of Life, Right to Justice, Right not to obey what is unlawful,
Right to Freedom and Expression, Right to Participate in Public Life (Political,
Social, Economic), Right to Protection of Honor & Good Name, Right to
Protection against Persecution, Right to Privacy, Right to Adequate Remuneration
& Compensation concerned with dignity of individual.
d) Hinduism
 It is based on duty i.e., Karma. And Dharma means to adopt.
 Following are the duties:
Ahimsa- Freedom from violence, Freedom from Exploitation, Freedom from
Want, Freedom from Death, Freedom from Dishonor or Violation, Freedom from
Disease, Freedom from Despair.
 Srimadbhagvatgeeta is one of the most sacred text prescribed Karma Marg and
says Action Path is one of the ways to literate one self. The duty is towards God
and fellow human beings as Human Rights.
2) Regional
- Babylonia
 In Non-International Phase, some protection for the Babylonian laws promulgated are found
in the rights of Urukagine of Lajasen (3260 BCE), Sargon of Akkad (2300 BCE), Hammurabi
of Babylon (1752-1750 BCE). Some protection could also be found in reign of Tiglath Pilesen
(1115-1077 BCE). Similarly, the Hittic Laws ascribed to the reign of King Telephines (1511-
1486 BCE) also afforded some protection. And likewise, Mahabharata (5000 BCE) in India.
 By the western historians the roots of Human Rights were traced back in the Babylonian King
Hammurabi who provided for:
Fair Wages, Freedom from Exploitation, Protection of Property.
 He has also told that charges of an offence to be payable at a trial which is known as Fair
Trial. This is called as Hammurabi Codes.
 These provide standard by which Babylonians regulate their lives and treat one another. Its
purpose was personality development, perfection, brilliance, liberty, liberation etc.
- The Dharma of the Vedic Period also protected Human Rights. So, did the Jurisprudence of Lao
Tze and Confucius in China.

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Concept, Meaning of Human Rights

Since there is no complete agreement about the nature and the substantial scope of Human rights, it is difficult
to give a precise definition of the term but to understand the following can be said, “Human Rights are the
Rights of the Humans.” They are inherent in very nature of the Human (inherent rights).
Human Rights are sometimes called Fundamental Rights, Basic Rights, Inherent Rights, Natural Rights and
Birth Rights. Basic Rights are the rights from the creation or the procreation like Right to Survive, Right to
Die, Right to be Fed, Right to Maintain.
Right to Die is not a Human Right. – Gian Kaur v. State of Punjab (1996)

Human Rights are the rights which are essential for human being, irrespective of his or her nationality, race,
religion, sex etc. simply because he or she is a Human being as a Birth Right. The expression Human Rights
denotes all those rights which are inherent in our nature and without which we cannot live as human beings.
Since, Human Rights are not created by any legislation, they resemble very much like Natural Rights. It is a
systematic body of knowledge pertaining to particular field of enquiry based on cause & effect relationship.
Moral Rights are the deep-rooted rights of civilization which transforms into Human Rights.
Jurisprudence of Human rights are essentials for individuals to develop their personality, qualities,
intelligence, talent, conscience and to enable them to satisfy their spiritual and other higher needs.
Generally speaking, any regards to these fundamental and inalienable rights which are essential for life as a
human being. There is however no consensus as to what these rights should be. Human Rights may be
interpreted as being different according to particulars such as economic, social and cultural society (ददद,
ददद, ददददददददद) in which they are being defined. Human Rights have so far escaped a universally
accepted definition, presenting a problem to international regularization.
Human Rights represent claims which individual or groups make on the society. They include the Right to
Freedom from Torture, Right to Life, Right to Humane Treatment, freedom from Slavery & Forced Labour,
Right to Liberty & Security as were given in the American & European Constitutions as adopted by the
UDHR, 1948 in different Constitutions as well as in the Indian Constitution also.
The Right of Liberty & Security, Freedom of Movement & Choice of Residence, Right to Fair Trial, Right to
Privacy, Freedom of Thought, Conscience and Religion, Freedom of Opinion & Expression, right to Marry
and form a family, Right to Participate in One’s Government either directly or indirectly or through freely
elected representation, Right to Nationality and Equality before Law. These rights are provided as
Fundamental Rights of any constitution and cannot be compromised universally. These rights are natural as
they are derived from nature and could not be legally alienated (separated) by the Ruler.

Human Rights Fundamental Rights

These rights are derived from the nature. These rights are not derived from the nature.

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They are according to the nature. They are not according to the nature but according to
circumstances.
They are inalienable. They may be alienated.

Theories of Human Rights i.e., Human Rights Jurisprudence

Some theories have been propounded in past to explain the rights of individuals known as Rights of Mankind,
Natural Rights or Human Rights. A brief discussion of these theories is given below:
1. Natural Law Theory
- As remarked by Dias, no other firmament (policy) of legal or political theory is so bejeweled with
stars as that of Natural Law for it has engaged the attention of some of the great thinkers of all
ages. The credit of giving birth to Natural Law Theory goes to Greeks. It engaged the attention of
eminent Greek scholars such as Sophocles and Aristotle.
- After the Greeks, it was further developed and elaborated by the Romans. The Early and Original
Law of Romans was called as ‘Jus Civile’. Later on, the Romans developed another legal system
‘Jus Gentium’ which was considered to be the Law of universal application. As pointed out by
Bnerdy, by ‘Jus Natural’, the Romans meant ‘the sum of those principles which ought to control
human conduct because they were founded in the very nature of men as a rational and social being’.
- Natural Rights theory has been derived from the above-mentioned natural law theory.
- The Natural Rights theory can be said to be akin or closely associated with modern human rights
jurisprudence. John Locke was the chief exponent of natural law theory who said, “human beings
existed in a state of nature where men & women were in a state of freedom, able to determine their
action and also in a state of equality”.
2. Positivism or the Theory of the Authority of State
- A different approach in respect of the rights was adopted by the positivists. The positivism was in
vogue in 18th and 19th century. Positivists believed that misconceived people would bound to obey
law if it was created by any legislative authority or sovereign irrespective of how illogical or
unreasonable it is.
- The positivists called this law, a law positivism (i.e., natural law) which is in fact as contrasted
with law which Bynkershoek was one of the chief exponents of the positivist school. According to
the positivists, the source of human rights lies in the enactment of a system of sanctions attached
to it. [Social Contract Theory failed because contract was done by sovereign only]
- They emphasize on the distinction of ‘is’ and ‘ought’ and criticize the natural law theories. The
modern exponent of positivism is Prof. HLA Hart.
3. Marxist Theory

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- The Marxists do not conceive the rights of individuals as distinct from the rights of the society as
a whole. According to them, only by achieving the upliftment of the society or community, the
higher freedoms of individuals can be achieved.
- Law, morality, democracy, freedom etc. with the condition of the life of society or community is
based on country, period and circumstances (ददद, ददद, ददददददददद).
4. Theories Based on Justice
- John Rawls is the chief exponent of this theory. According to him, “Justice is the first virtue of
social institution. Goals are to be achieved by the Justice as it is ‘ought’ to be or ‘is’. Justice is the
virtue and the concept of fairness runs throughout the theory.
5. Theories Based on Dignity
- The exponents of this theory regard the protection of human dignity as a paramount objective of
the social policy or social welfare as Welfare State would have 8 interdependent values upon which
Human Rights depend. They are:
Respect, Power, Enlightenment, Well-Being, Health, Skill, Affection, Rectitude (i.e., restoration
of values).
- This is a Value Based Theory.
6. Theory Based on Equality of Respect & Concern
- Last but not the least theory regarding Human Rights is the Theory Based on Equality of Respect
& Concern. This theory was propounded by Dworkin.
- The basic premise of this theory is that Government must treat all their citizens with Equal Concern
and respect Article 14 of the Constitution.
- Dworkin has affirmed the ‘utilitarian principle’ which states that “everybody to count for one,
nobody for more than one”. He even advances the idea of state intervention in order to achieve
social welfare. In this view, right to liberty is too vague to be meaningful. But there are certain
specific liberties such as Freedom of Speech, Freedom of Worship, Right of Association and
Personal and Sexual Relations, Special Protection against Government Interference.
- They also believe in the Natural Law Theory where everything is based on nature as Reason and
basic principles remain unalterable. They provided the theory of ‘inner morality of law’.
- Kant, Hegel, Stammler & Kohler expressed natural law should be changed according to the present
circumstances
 Right to Life, Liberty- Article 3 UDHR is based on this theory.
 Right against Custodial Violence- Prem Shankar Shukla case is based on this theory.
 As part III of the Constitution, Article 25, 29, S. 2(d) of the Protection Act, 1993 is also
based on this theory.

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- Right to Property is now considered to be not only a constitutional or statutory right but also a
Human Right – P.I. Manechild Canna Reddy

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Module 2

Human Rights under the Constitution of India- Fundamental Rights

The Constitution of India was adopted on November 26, 1949. But it did not come into force immediately on
that day. It is rather surprising that although before the adoption of the Indian Constitution UN Charter had
been adopted at San Francisco on June 25, 1945 and came into force on October 24, 1946 and India become
a country who signed and ratified the charter. The Universal Declaration of Human Rights [UDHR] was
adopted by the General Assembly of the UN on 10th December, 1948. The UN Commission on Human Rights
had been established by the Economic and Social Council in February 1946 as the nearest approach for the
supervision of the problem of protection of human rights.
Then Article 1 of the Charter insists on promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to sex, language or religion.
Article 55 charges the UN to promote universal respect for and observance of human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion.
Through the preamble, the people of India have resolved to secure to all citizens the following four objectives:
a) Justice- Social, economic and Political
b) Liberty of thought, expression, belief, faith and worship
c) Equality of status and opportunity and to promote among them all
d) Fraternity assuring the dignity of the individual and the unity and integrity of the nation.

Civil & Political Rights

These rights are said to be traditional rights as well. These all are the rights that had developed in course of a
very long period of time and are derived primarily from the 17th century reforms which are associated with
English, French & American Revolutions. Inspired by the philosophy of liberal individualism and the
economic and the social doctrine of laissez faire.
The thinkers of the human rights opine more in negative sense (Freedom from) rather than positive sense
(Right to) terms. It favors the abstention rather than the intervention of government in the question of human
dignity.
There are various kinds of civil & political rights which may be divided into 12 categories which are as
follows:
1. Right to Life, Liberty & Security of Person;
2. Abolition of Slavery and Slave Like Practices;
3. Abolition of certain types of Forced or Compulsory Labour;
4. Protection against Torture and other forms of Cruel, Inhumane or Degrading Treatment or Punishment;
5. Protection against Arbitrary Arrest and Detention;
6. Human Rights in the Administration of Justice;
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7. Right of everyone to Leave his Country, including his own and to come to his country;
8. Right to own Property;
9. Freedom of Thought, Conscience, Religion or Belief;
10. Freedom of Opinion and Expression;
11. Freedom of Association including Trade Union Rights; and
12. Right of everyone to take part in the Government of his country.

First Generation of Human Rights

Civil & Political Rights came first in the concept of rights (i.e., in the form of Human Rights) which are
developed over centuries and that’s why they are called as Traditional Rights. Since these rights developed
firstly in the form of rights, hence they are also called as First Generation of Human Rights. Concept of other
rights came subsequently.

Specifically Enumerated Rights

i. Civil & Political Rights

S. No. Universal Declaration of Human Rights Indian Constitution
1. Right to Life, Liberty and Security of Persons (Article 3) Article 21
2. Prohibition of Slavery, Slave Trade etc. (Article 4) Article 23
3. Equality before Law & Non-discrimination (Article 7) Article 14 and 15(1)
4. Right to Effective Remedy (Article 8) Article 32
5. Right against Arbitrary Arrest, Detention etc. (Article 9) Article 22
6. Right against Ex-Post Facto Laws (Article 11(2)) Article 20(1)
7. Right to Freedom of Movement (Article 13(1)) Article 19(1)(d)
8. Right to own Property and not to be deprived of Property Article 19(1)(f)
(Article 17) [But it was omitted by 42nd
Constitution Amendment
Act, 1978]
9. Right to Freedom of Thought, Conscience & Religion Article 25(1)
(Article 18)
10. Right to Freedom of Opinion & Expression (Article 19) Article 19(1)(a)
11. Right to Freedom of Peaceful Assembly and Association Article 19(1)(b)
(Article 20(1))
12. Right to Equal Access to Public Service (Article 21(2)) Article 16(1)
13. Right to Social Security (Article 22) Article 29(1)
14. Right to Form and to Join Trade Unions (Article 23(4)) Article 19(1)(c)

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ii. Rights not specifically enumerated or other rights: Judicial Activism

1. Right to go Abroad- Maneka Gandhi v. Union of India
2. Right to Privacy- Sukh Dev v. Union of India
3. Right against Solitary Confinement- Sunil Batra v. Delhi Administration
4. Right against Bar Fetters- Charles Sobraj v. Delhi Administration
5. Right to Legal Aid- M.H. Hoscot v. State of Maharashtra
6. Right to Speedy Trial- Maneka Gandhi v. Union of India
7. Right against Handcuffing- Khedat Mazdoor Chetna Sangthan v. State of MP
8. Right against Delayed Execution- Daya Singh v. Union of India

Human Rights vis a vis Directive Principles under the Constitution of India

Objects of UDHR
a) Human beings should be protected by the Rule of Law;
b) Promotes development of friendly relations between nations;
c) Member states should respect human rights and fundamental freedoms with the spirited co-operation
and dedication; and
d) Promote social progress etc.

Influence of UDHR
Since its adoption, the Universal Declaration has exercised a powerful influence both internationally and
nationally. It has been rightly pointed out that whatever its legal quality, the Declaration has set a standard by
which national behavior can be measured. UDHR has been used as a conduit and yard-stick to measure the
degree of respect and compliance with the international standard of human rights.
The provisions of the UDHR were transformed into International Conventional Law in the International
Covenants on Human Rights which alongwith the UDHR are known as International Bill on Human Rights,
adopted by the General Assembly on December 16, 1966. In an ongoing effort based on Principles contained
in the Declaration, the UN adopted some 50 other legal instruments on Human Rights. These include:
Convention on Genocide, Torture, Racial Discrimination, Apartheid, Protection of Refugees, Children,
Discrimination against Women, Protection of the right of the Migrant workers and Members of their Families
etc.

Economic, Social and Cultural Rights

These rights are also said to be programmatic rights. These rights find its origin in socialist traditions and
widely promoted by revolutionary struggles and welfare movements. In a large measure, it is a response to

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the abuses and measures of capitalist development and its underlying essentially conception of individual
liberty that tolerates even legitimizes the exploitation of working classes and colonial peoples.
Partly the credit for economic and social rights also goes to President Roosevelt of USA who in his message
to Congress on 6th January, 1941 spelt out four freedoms to whom he looked forward as the Foundation of a
Future World as Freedom from Want etc.

UDHR (Article 22-27) provides for various kinds of Economic, Social & Cultural Rights which are as follows:
1. Right to Work;
2. Right to Education;
3. Right to Health;
4. Right to Adequate Food;
5. Right to Adequate Shelter Services;
6. Right to Culture;
7. Right to Family and Right to Marriage; and
8. Right to Form & Join Trade Unions.

Second Generation of Human Rights

Economic, Social & Cultural Rights are said to be second generation of human rights. As already mentioned,
the reason for the development of these rights have been the abuses and misuses of capitalism, socialist
traditions, revolutionary movements (outstanding of those have been Russian Bolshevik Revolution of
October 1917) and the concept of people’s welfare.
These rights are developed in order to make civil & political rights more meaningful. Civil & Political Rights
in itself has no special meaning unless a person has economic and social rights as well. One in complementary
to the other. Since economic & social rights was developed after civil & political rights and therefore,
economic & social rights are said to be Second Generation of Human Rights.

Specifically Enumerated Rights

S. No. Universal Declaration of Human Rights Indian Constitution

1. Right to Work, to Free Choice of Employment, To Just & Favorable Article 41
Conditions of Work etc. (Article 23(1))
2. Right to Equal Pay for Equal work (Article 23(2)) Article 39(d)
3. Right to Just & Favorable Remuneration (Article 23(3)) Article 43
4. Right to Rest & Leisure (Article 24) Article 43
5. Right to everyone to Standard of Living which is Adequate for him & his Article 39(a) & 47
family (Article 25(1))

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6. Right to Education & Free Education in the Elementary & Fundamental Article 41 & 45
Stages (Article 26(1))
7. Right to a Proper Social Order (Article 28) Article 38

Article 39 (b) and (c), Article 40, Article 43A, Article 44, Article 46, Article 48A of the Constitution does not
find its place in UDHR. And therefore, it is unenumerated rights.

All forms of discrimination on grounds of gender are violative of fundamental freedoms and Human Rights.
– Madhu Kishwar v. State of Bihar

Village women were beaten by police as per medical examination of injured women. A clear case of violation
of Human Rights as defined on S. 2(d). Injured woman was directed to be paid compensation. – In Re, the
matter of the Citizens of the Distt. Of Jehanabad
It was held that though Board of Control for Cricket in India having pervasive control over entire cricket in
India but it cannot apparently act in violation of Human Rights. – Zee Tele Films & Another v. Union of India

India is a party to the International Covenant on Civil & Political Rights and the International Covenant on
Economic, Social & Cultural Rights adopted by the General Assembly of the United Nations on the 16 th
December, 1966. The Human Rights embodied in the aforesaid covenants stand substantially protected by the
Constitution. However, there has been growing concern in the country and abroad about issue relating to
Human Rights. Having regard to this, changing social realities and the emerging trends in the nature of crime
and violence, government has been reviewing the existing laws, procedures and system of administration and
transparency in them and devising more efficient and effective methods of dealing with the situation (ददद,
ददद, ददददददददद). On Genocide, Apartheid, Racial Discrimination more than 50 instruments have
been signed.
To provide for the constitution of a National Human Rights Commission, State Human Rights Commission
in States and Human Rights Courts for better protection of human rights and for matters connected therewith
or incidental thereto the Parliament of India has enacted the Protection of Human Rights Act, 1993.

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Module- 3

Meaning of Human Rights under the Indian Protection of Human Rights Act, 1993

Section 1: Short title, extent and commencement

- This Act may be called the Protection of Human Rights Act, 1993.
- It extends to whole of India.
- Provided that it shall apply to the State of Jammu & Kashmir only in so far as it pertains to the matters
relatable to any of the entries enumerated in List I or List III in the 7th Schedule to the Constitution as
applicable to that State.
- It shall be deemed to have come into force on the 28th Day of September, 1993.

Section 2: Definition
(a) "armed forces" means the naval, military and air forces and includes any other armed forces of the Union;
(b) "Chairperson" means the Chairperson of the Commission or of the State Commission, as the case may be;
1[(ba) "Chief Commissioner" means the Chief Commissioner for Persons with Disabilities referred to in sub-
section (1) of section 74 of the Rights of Persons with Disabilities Act, 2016 (49 of 2016);]
(c) "Commission" means the National Human Rights Commission constituted under section 3;
(d) "Human Rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed
by the Constitution or embodied in the International Covenants and enforceable by courts in India;
(e) "Human Rights Court" means the Human Rights Court specified under section 30;
2[(f) "International Covenants" means the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the
United Nations on the 16th December, 1966 and such other Covenant or Convention adopted by the General
Assembly of the United Nations as the Central Government may, by notification, specify;]
3[(g) "Member" means a Member of the Commission or of the State Commission, as the case may be;]
4[(ga) "National Commission for Backward Classes" means the National Commission for Backward Classes
constituted under section 3 of the National Commission for Backward Classes Act, 1993 (27 of 1993);]
(h) "National Commission for Minorities" means the National Commission for Minorities constituted under
section 3 of the National Commission for Minorities Act, 1992 (19 of 1992);
5[(ha) "National Commission for Protection of Child Rights" means the National Commission for Protection
of Child Rights constituted under section 3 of the Commissions for Protection of Child Rights Act, 2005 (4 of
2006);]
6[(i) "National Commission for the Scheduled Castes" means the National Commission for the Scheduled
Castes referred to in article 338 of the Constitution;]

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(ia) "National Commission for the Scheduled Tribes" means the National Commission for the Scheduled
Tribes referred to in article 338A of the Constitution;
(j) "National Commission for Women" means the National Commission for Women constituted under section
3 of the National Commission for Women Act, 1990 (20 of 1990);
(k) "notification" means a notification published in the Official Gazette;
(l) "prescribed" means prescribed by rules made under this Act;
(m) "public servant" shall have the meaning assigned to it in section 21 of the Indian Penal Code (45 of 1860);
(n) "State Commission" means a State Human Rights Commission constituted under section 21.

Background
Section 2(d) of the Protection of Human Rights Act defines the human rights. Human Rights are derived from
the dignity and worth inherent in the human person. Human Rights and Fundamental Freedom have been
taken by the Universal Declaration of Human Rights. Democracy, development and respect for Human Rights
and Fundamental Freedom are independent and have mutual reinforcement. The Human Rights for women,
including girl child are therefore inalienable/inseparable, integral and invisible part of Universal Human
Rights. The full development of personality and Fundamental freedoms and equal participation by women in
political, social, economic and cultural life are concomitants (areas) for national development.
Social and family stability and growth, culturally, socially and economically.
All forms of discrimination on grounds of gender are violative of fundamental freedom and human rights-
Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125
Village women were beaten by police. As per medical examination of injured women a clear case of violation
of human rights as defined in S. 2(d) was made out. Injured women were directed to be paid compensation-
In Re, the Matter of the Citizen of the District of Jehanabad, 2003 Cri LJ 1067
It was held that though BCCI in India has pervasive control over entire cricket in India but it cannot apparently
act in violation of human rights. – Zee Tele Films & Anr. V. Union of India, AIR 2005 SC 2677
India is a party to the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social & Cultural Rights adopted by the General Assembly of the United Nations on 16th December
1966. The Human Rights embodied in the aforesaid covenants stand substantially protected by the
Constitution. However, there has been growing concern in the country and abroad about issue relating to
Human Rights.
Having regard to this, changing social realities and the emerging trends in the nature of crime and violence,
the Government has been reviewing the existing laws, procedures and system of administration and
transparency in them and devising more efficient and effective methods of dealing with the situation according
to the country, time, circumstances (for e.g., Genocide, Apartheid, Racial Discrimination, more than 50
instruments have been signed).

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To provide for the Constitution of National Human Rights Commission, State Human Rights Commission and
Human Rights Courts for better protection of human rights and for matter connected therewith or incidental
thereto, the Parliament of India had enacted the Protection of Human Rights Act, 1993.
Salient Features of the Act
1. The Constitution of National Human Rights Commission consisting of 5 members appointed by the
President with a chairperson who has been a Chief Justice of Supreme Court;
2. The Chairpersons of the National Commission for the Scheduled Caste and Scheduled tribes and the
National Commission for Women and the National Commission for Minorities are deemed to be a
member of the Commission for the discharge of certain functions;
3. The Commission is a fact-finding body with powers to conduct inquiry into complaints of violation of
human rights;
4. The Commission is assisted by investigating agencies of the Centre and State Government and
Government may constitute one or more special investigation team;
5. The State Government may setup Human Rights Court [S. 30] for speedy trial of offences, arising out
of violation of Human Rights and may also specify a Public Prosecutor or appoint an advocate as
Special Public Prosecutor for the purpose of conducting cases in such courts;
6. The Commission may make recommendations for the effective implementation of the existing laws
and treaties on human rights;
7. The Commission may undertake research in the field of human rights and take measures to promote
awareness of human rights among all section of society;
8. The Constitution of the State Human Rights Commission on the lines of the National Human Rights
Commission.

Human Rights Courts in India

Section 30-
For the purpose of providing speedy trial of offences arising out of human rights, the State Government may
with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court
of Session to be a Human Rights Court to try the said offences. Provided that nothing in this section shall
apply if:
a) a Court of Session is already a Special Court; or
b) a Special Court is already constituted for such offences under any other law for time being in force.
Case- A. Goverdhan Reddy v. Superintendent of Police, Allahabad 1998 Cr LJ 561
Section 30 of the Protection of Human Rights Act, 1993 which speaks of the creation of Human Rights Court,
does not speak of any power in the said court to either take cognizance of any offence or proceed before
summoning the case or proceeding for trial in inquiry or investigation.

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Human Rights Court being a Court of Session for trial of offences violative of Human Rights cannot take
cognizance of any offence as a Court of Original Jurisdiction.
Case- K.V. Rajendran v. The Inspector of Police, Madras 2001 Cr LJ 4092
It was held that in matter of illegal confinement and brutal torture inflicted on victim by Revenue Divisional
Officer, the Court can intervene to protect human rights of victim as per the provision of Section 30 of the
Act.
Section 31- Special Public Prosecutor
For every Human Rights Court, the State Government shall by notification, specify a Public Prosecutor or
appoint an advocate who has been in practice as an advocate for not less than 7 years, as a special public
prosecutor for the purpose of conducting cases in that Court.
While Section 31 is mandatory, Section 30 is optional. The provision contained in Section 30 is very weak,
for it uses the word ‘may’ that is to say, it is not mandatory for the State Government to establish Human
Rights Courts in each District. That’s why only a few states namely Andhra Pradesh, Assam, Sikkim and
Tamil Nadu have notified such courts and only states namely Tamil Nadu and Assam have established such
courts in Madras and Guwahati respectively. Other states have not insofar taken any action in this connection.
Sometime back, D.B. Karthikeyan, the Director General (Investigation) of National Human Rights
Commission [NHRC] said that the greatest number of complaints of violation of Human Rights come from
Uttar Pradesh. Despite that, District Human Rights Court have not been established in Uttar Pradesh. However,
subsequently such courts have been notified in Uttar Pradesh.
Section 30 which provides for establishment of District Human Rights Courts does not lay down the
jurisdiction of such courts. It also does not lay down as to what procedure shall be followed by such courts.
This ambiguity will create problems when the cases for alleged violation of human rights are actually
conducted in such courts.
Basically, it means no Jurisdiction and no concurrence of any alleged violation. It is a complex situation.

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Module 4

Introduction- Protection of Human Rights Act, 1993

In pursuance of a resolution of the General Assembly adopted in 1966, the Economic and Social Council
asked the Human Rights Commission of the UN to consider the question of creation of National Commission
of Human Rights to perform certain functions relating to the observance of the International Covenant on
Human Rights. This question was also considered by the Commission in 1970 and the Commission
recommended that the question of establishment of National Commission of Human Rights in each member
State of the UN. ought to be decided by each Government of the member State keeping in view the traditions
and institutions of each country. Since then, the Human Rights Commission has several times stressed the
need of the creation of National Commission of Human Rights in each member State. Vienna Declaration and
Programme of Action adopted by the Vienna Conference on Human Rights on June 25, 1993 recommended
that every State ought to provide an effective framework of machinery or institution to provide remedies in
cases of violations of human rights. It was after the said World Conference that several States including India
have established National Commissions of Human Rights to redress human rights grievances or violations.
The western countries and America, in particular, criticized India for violation of human rights by Indian
armed and security forces especially in the State of Jammu and Kashmir. Though it is now well recognized
that terrorism is a serious violation of human rights yet these countries especially America never lost an
opportunity to criticize India whenever Indian Security Forces sought to deal sternly with extremists and ultras
in Jammu and Kashmir, in North Eastern States and Andhra Pradesh. In order to meet this criticism, apart
from other reasons, India decided to establish a National Commission of Human Rights for the redressal of
grievances of human rights violations, On 28 September, 1993, the President of India promulgated an
Ordinance which established a National Commission of Human Rights. Thereafter, a Bill on human rights
was passed in the Lok Sabha on December 18, 1993 to replace the Ordinance earlier promulgated by the
President. This Bill received the assent of the President on January 8, 1994 and was published in the Gazette
of India, Extraordinary, Part II, Section 1, on January 10, 1994. Thus, the Protection of Human Rights Act
(No. 10 of 1994) came into force. But since the National Commission of Human Rights has already been
established and certain acts in pursuance of the Ordinance had already been performed, Article 1 (3) provided
that the Act shall be deemed to have come into force on the 28th day of September, 1993. Section 1(2) provides
that the Act extends to the whole of India provided that it shall apply to the State of Jammu and Kashmir only
in so far as it pertains to the matters relatable to any of the entries enumerated in List I or List III in the Seventh
Schedule to the Constitution applicable to that State.
The Preamble of the Act makes it clear that it is an Act to provide for the constitution of National Human
Rights Commission, Commissions in States and Human Rights Courts for better protection of human rights
and for matters connected therewith or incidental thereto.

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Definition of Human Rights under the Act-

Section 2 (d) of the Act defines human rights as the rights relating to Life, Liberty equality and dignity of the
individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by
Courts in India.
Thus, for the purposes of the Act, human rights are rights relating to life, liberty, equality and dignity of the
individual guaranteed in the Constitution or embodied in the International Covenants and enforceable by
Courts in India. Thus, the Act gives a very narrow definition of 'human rights' and does not even include all
the fundamental rights guaranteed by the Constitution. It simply includes the fundamental rights relating to
the life, liberty, equalities and dignity guaranteed in the Constitution or embodied in International Covenants
on human rights. For example, it does not include fundamental rights of prohibition of employment of children
in factories etc. (Article 25). Protection of interests of minorities (Article 29), Right of Minorities to establish
and administer educational institutions. As regards the words "embodied in the International Covenants and
enforceable by Courts in India", they certainly wider the scope of Human Rights (fundamental rights)
enforceable by Courts in India.
As pointed out in the preceding chapter human rights enforceable by [Link] India can be divided into three
categories:-(i) Enumerated Fundamental Rights; (ii) Other Fundamental Right; and (iii) Unenumerated Rights.
The term 'Enumerated Fundamental Rights' means the human rights embodied in the International Covenants
on human rights, especially the International Covenant on Civil and Political Rights and which are specified
as Fundamental Rights in Part III of the Constitution.
The term 'other Fundamental Rights' means the human rights embodied in the International Covenants and
recognized as Fundamental Rights by Courts in India even though they have not been specified as
Fundamental Rights in Part III of the Constitution such as the right to privacy, right to travel abroad, right to
compensation etc. These have been discussed in detail in earlier chapter.
The term 'Unenumerated Rights' means the human rights which have been enumerated in the International
Covenants but are neither enumerated as Fundamental Rights in the Constitution nor have been so far
recognized as Fundamental Rights by Courts in India. One may, however, add that even unenumerated rights
may in future be recognized as Fundamental Rights in a particular case.
For example, in Vishaka v. State of Rajasthan the three Judge Bench of the Supreme Court has recognized the
right of Gender Equality and guarantee against sexual harassment and abuse of working women at their work
places as emanating from Articles 14 and 21 of the Constitution. But once such a right is recognized as a
fundamental right emanating from existing or specified Fundamental Rights it ceases to be in the category of
'Unenumerated Rights' and comes in the second category of Rights namely 'other Fundamental Rights'. But
before such a right is included in the definition of 'human right' a condition precedent is that it must be
embodied in the International Covenants.

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Since Section 2 (1) defines "International Covenants as the International Covenants on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General
Assembly of the United Nations on 16 December, 1966, the said right must be embodied in these two
International Covenants and not in any other International Convention on Human Rights for the purpose of
definition of 'human rights' as given under Protection of Human Rights Act, 1993 (Act No. 10 of 1994).

National Human Rights Commission in India- Its Composition, Powers and Functions
Composition of the National Human Rights Commission- Ss. 3-11, Protection of Human Rights Act, 1993
Functions & Powers of the Composition- Ss. 12-16, Protection of Human Rights Act, 1993
Procedure- Ss. 17-20, Protection of Human Rights Act, 1993

State Human Rights Commission in India- Its Composition, Powers and Functions
Composition of the State Human Rights Commission- Ss. 21-29, Protection of Human Rights Act, 1993

Evaluation of Protection of Human Rights Act, 1993 (Act No. 10 of 1994)

Apart from the Constitution for the protection and observance of human rights, enactment of the Protection of
Human Rights Act, 1993 is an important milestone and should be welcomed. However, it cannot but be
remarked that it is certainly a weak effort for it suffers from certain defects and shortcomings. In the first
place, there are certain ambiguities and impediments concerning the competence and autonomy of the National
Human Rights Commission (NHRC). In its very first annual report for the period ending on March 31, 1994,
the Commission recommended the amendment of Sections 2(1) (d) and 2(1) (f), 11(1)(b) and 11(2) (together
with Section 32), Section 13(1) (f), Sections 18, 30, 1 36 so as to remove ambiguities and impediments
concerning its competence and autonomy of the Commission. These recommendations were reiterated by the
Commission in its annual report for the year 1994-95 and the Commission even regretted that action had yet
not been taken to give effect to these recommendations and urged that measures be taken without further
delay. Unfortunately, even this has proved insufficient to awaken the Government from its slumber. This
attitude of the Government is not conducive for the proper observance and protection of human rights in the
country. The NHRC has set up an advisory committee under the Chairmanship of former Chief Justice of
India, A. M. Ahmadi to suggest revisions in the Protection of Human Rights Act, 1993.
Secondly, the definition of "human rights" given in Section 2(d) is very narrow. As pointed earlier, it is not
proper to limit the human rights only to the rights relating to life, liberty, equality and dignity of the individual
even though they are the most important basic human rights.
Thirdly, a serious defect of the Act is that establishment of State Human Rights Commissions has not been
made mandatory. Section 21(1) which provides for the establishment of State Human Rights Commission
uses the words "may constitute.......". This defect ought to be rectified as soon as possible. It is probably
because of this, inter-alia, only a few States have so far established State Human Rights Commissions. This

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provision should be mandatory in the same way as Section 3 of the Act which makes it mandatory for the
Central Government to constitute National Human Rights Commission.
Fourthly jurisdiction of the Human Rights Court has not been specified in the Act. It is not clear what cases
will be conducted in such courts and what procedure shall be followed in such Courts.
Fifthly, it has been criticized, and rightly too, that the NHRC has no teeth. Though it has been entrusted with
the important task of ensuring observance of human rights, the powers conferred on it are not sufficient. It has
no power to take a binding decision. It can only recommend. Even though it concludes that violation of human
rights has taken place but instead of giving a binding decision it may under Section 18 simply recommend to
the concerned Government or authority for the initiation of proceedings for prosecution or other action, or
approach the Supreme Court or High Court concerned for such directions, order, or writs as that court may
deem necessary recommend or the concerned Government or authority for grant of some interim relief to the
victim of the family. The Concerned government or the authority is not bound to accept the recommendation
or may accept the recommendation with certain modifications as it may deem fit. If the Government is really
serious and sincere about the observance of human rights, it should give some teeth to NHRC so to make it an
effective and useful body.
Sixthly, NHRC has no independent and separate investigating agency and has to utilize and rely upon the
service of any office or investigation agency of the Central Government or of the State Government with the
concurrence of the Central Government or the State Government, as the case may be.
Last but not the least, it is not proper and just to specify a Sessions Courts as Human Rights Courts because
these courts are already over-burdened with large number of cases. Therefore, cases of alleged violations of
human rights will not receive in such court the priority and importance they deserve nor their expeditious
disposal can be ensured in such courts. Separate Human Rights Court under the Protection of Human Rights
Act, 1993 ought to be established to achieve the desired results.
Despite the above shortcomings and weaknesses, National Human Rights Commission (NHRC) has
performed praiseworthy and commendable work within a short period. It has rendered signal services in
respect of custodial deaths, rape, torture, false police encounters and other police excesses. On March 10, 1999
Chairperson of the NHRC former C. J., I. M. N. Venkatachaliah launched Human Rights Cells in the police
headquarters as an effective in-house system to deal with the rising number of cases of custodial violence in
the country. While inaugurating the project, NHRC Chairman C. J., I. M. N. Venkatachaliah said that the
Commission received about 4,000 complaints of omission and commission of the public servants and a
majority of them pertained to police brutality and custodial violence. NHRC Chairman further added that
'Human Rights Cells' will be run by policemen with their own genius, own resources and own conscience
would go a long way in strengthening the foundation of democracy in the country." These Cells would be
headed by an officer not below the rank of the Inspector-General of Police or Additional Director-General of
Police who would be designated as "IGP/ADGP (Human Right)". Though the NHRC would be consulted
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while nominating them; they would work under the State Government. Works such as these have enhanced
the utility and significance of NHRC. Its circular or direction to all the District Magistrates and
Superintendents of Police to report to NHRC within twenty-four hours all cases of custodial deaths and rape
in their jurisdiction, has produced desired results. Now police officials will think several times before
committing excesses or misusing or abusing their powers. All credit for this goes to NHRC.
Similarly, in March, 1999, NHRC has issued a directive to all State Governments to immediately ensure
medical examination of prison inmate in accordance with the proforma designed by it and monthly reports of
progress be communicated to Commission. This has been done to contain the alarming spread of contagious
diseases like tuberculosis in jails. Even though the prison rules require medical examination of the inmates
after admission but it is a distressing situation that the conduct of such initial examination is more an exception
than the normal. That is why, the NHRC had to issue such directions in view of the seriousness of the situation
of infectious disease and the gravity of the problem of cross-infection which has the prospect that persons
upon being held innocent at the end of the day or after serving the sentence may find themselves in a worse
position health-wise than when they entered the prison. It is such welfare activities of the NHRC which have
instituted the confidence of the people in it and its utility and necessity.
It may be noted that in some very important areas National Human Rights Commission seems to be insensitive,
apathic, inactive for reasons better known. to National Human Rights Commission. For example, these days
it has become a common scene to see whenever workers medical students, Government servants, teachers etc.
protest peacefully against the wrong biased or politically motivated decisions or policies of the Government,
police personnel beat them mercilessly, especially where one or two agitators are isolated, or apprehended and
several policemen publicly beat such agitator. It is not possible without the direct or indirect orders or sanctions
of the Government. Many a time police personnel get hold of an innocent person, or an old person and several
policemen beat a single person mercilessly. Such horrible scenes are shown in T.V. news channel yet neither
the Government nor the NHRC takes any action or cognizance against such police personnel. The inaction of
the Government can be understood because without its direct or indirect sanction or order it is not possible for
the police to act in such an inhuman way. But what is preventing the NHRC to recommend severe action
against such personnel. There seem to be a very few rather negligible, cases in which the National Human
Rights Commission has taken cognizance or recommended strict action against such police officials. Rarer
are the cases where the Commission has recommended appropriate compensation for such victims or their
kith and kin.

Reference may be made here to recent case namely severely beating of Samajwadi Party workers by Police at
Lucknow on 9th March, 2011 in the presence of senior officers and, especially, trampling down of one of the
activists by D.I.G. of Police, an inhuman act which no human being would do even with an animal. It was also
reported that the said activist suffered serious injuries. The said incident were reported in the media including

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being shown live on T.V. The NHRC took suo motu cognizance of said media reports. and issued notice,
alongwith press clippings to the Director-General of Police U.P. calling for reply within four weeks. Even if
the reply of DIG Police is not found satisfactory and after investigation finds the DIG guilty, and the
Commission recommends compensation of Rs. 50,000 as so it will have no deterrent effect, no effect, at all.
In such a case the Commission should have recommend exemplary punishment to say Rs. 15 lakhs that too
made payable not by the Government, but DIG personally and payable to the victim. Then and then only, it
will have a deterrent effect and every police official will think several times before doing such an inhuman
act. We will have to wait and see what is the final result of NHRC's intervention in this case.
In the end, it may be concluded that with certain amendments in the Act no as to remove the existing defects
and shortcomings and streamlining machinery of protection and observance of human rights alongwith will
of Government and the NHRC to act promptly and fairly, Protection of Human Rights Act, 1993 can become
an ideal for the better protection, respect and implementation of human rights in the country.

Evaluation of Human Rights in India

As noted above Protection of Human Rights Act can become an ideal Act for the better protection of human
rights. It is also true that National Human Rights Commission has rendered a signal service for the respect and
observance of human rights in India. But the fact is that Protection of Human Rights Act, 1993 has yet not
become an ideal Act because of certain shortcomings. National Human Rights Commission itself admits that
it is not sufficiently equipped with adequate powers to enquire, investigate and to ensure respect for and the
observation of human rights in India.
The situation in India as a whole clearly indicates that the situation of human rights in India is far from
satisfactory. Since the inception of Human Rights Act, the number of cases has progressively increased. As
pointed out by "Human Rights Watch", our present Union Government has yet not addressed some of India's
most pressing needs including better training of Police, providing health, education and food security to
millions still struggling for sustenance the country's economic growth ending discrimination against Dalits,
tribal and religious minorities and protecting the rights of women. As regards Dalits and backward classes, a
few words about the present reservation policy would not be out of place here. In fact, present reservation
policy, despite all the reservation of posts, a 'Dalit' or 'Backward Class’ remains a 'Dalit' or 'backwards', as the
case may be, forever. It perpetuates the label of being 'Dalit' or 'backward'. Instead of merging them in the
mainstreams, it divides the people on the basis of castes.
According to "Human Rights Watch", failure of the government to protect minorities and other vulnerable
groups and justified grievances are to some extent for militant activity around the country. In fact, the Maoists
are attracting supporters. in some states because of the state's long failure to address basic socio-economic
needs.

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Indian Government points to the independent judiciary, vibrant media and active civil society as evidence that
it is thriving widespread impunity for human rights violations while the Indian Government claims that its
National Human Rights Commission ensures the protection of human rights but the NHRC often admits and
defends its insufficient resources to conduct its own investigation and that it is not empowered to investigate
violations by the Army, and is poorly equipped and is vulnerable to pressure groups. As far the Government's
part, its seriousness for human rights is clearly illustrated by the fact that the annual reports of 2008-2009 and
2009-2010 have yet to be tabled in both the Houses of Parliament. Moreover, the Commission has no power
to take any concrete action it can only enquire investigate and recommend. It is the Government that takes
action on the recommendation of the Commission. It tables the reports of the Commission in the Parliament
alongwith action taken and proposed to be taken report. A Government which is reluctant to even table the
reports of the Commission before the Parliament, how can it be believed for taking appropriate action for the
protection and observance of the human rights.

India's rapidly growing economy and increasing importance as trading partner has meant that her domestic
human right is receiving international scrutiny. After a visit to India in March, 2008, U.N. High Commissioner
for Human Rights, Navanethem Pillai called upon India to have good national laws and policies that promote
and protect human rights and seek to support the most vulnerable. She also sought the review of Armed Forces
Special Powers Act that breaches contemporary international human rights standard. She also observed that
India is yet to act on those recommendations to end caste and religions-based discriminations. In view of
India's growing economic growth, India has been repeatedly urged to play a greater role, in advancing human
rights and protecting civilians in Burma and Sri Lanka. In this respect, it may, however, be submitted that
India should first ensure better respect for and observance of human rights in her domestic field. Even if we
set apart international comments one cannot fail to admit that human rights situation in India is far from
satisfactory. Moreover, in India VVIP such as Union and State Ministers, Chief Minister and Prime Minister
consider themselves above law and think they can do anything ignoring the view of common people. The
glaring example of this is the controversy about the passing of Lok Ayukta Bill for which Anna Hazare, a
social activist was on indefinite fast and was supported by social activists and right-thinking men and women
all over the country.
Last but not the least, sometime ago, the prominent industrialists of India jointly wrote a letter to the Prime
Minister stating that two main maladies (i) corruption (ii) lack or absence of administration in the country
which are obstructing the development of the country. There is much force in the statement of the
Industrialists. As regards the first, it is well known that there is rampant corruption in the country emanating
from the top and going to the bottom. As regards the second i.e., lack or absence of administration, recent Jat
movement, especially their occupation of railway track in several states and before that Gurjar Movement
crippling public life in several states and silence and inactivity of the Government for several weeks are glaring

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examples. The question of protection of and observance for human rights in such a situation does not at all
arise. Thus, the situation of human rights in India is far from satisfactory.

It may, therefore, be concluded that with certain amendments in the Act so as to remove the existing defects
and shortcomings and streamlining the machinery of protection and observance of human rights, Protection
of Human Rights Act, 1993 can become an ideal Act for the protection of human rights in the country. But a
necessary condition for achieving this goal is the will and good intention of the Government.

What are the Limitations Regarding NHRC?

1. Investigation Mechanism:
- NHRC does not have any mechanism of investigation. In the majority of cases, it asks the concerned
Central and State Governments to investigate the cases of the violation of Human Rights
- A large number of grievances go unaddressed because NHRC cannot investigate the complaint
registered after one year of the incident.
2. Decision Enforcing Power:
- NHRC can only make recommendations, without the power to enforce decisions.
3. Underestimation & Inadequacy of Funds:
- Many times NHRC is viewed as a post-retirement destination for judges and bureaucrats with political
affiliation moreover, the inadequacy of funds also hampers it’s working.
4. Neglected Recommendations:
- The government often out rightly rejects recommendations of NHRC or there is partial compliance to
these recommendations.
5. Limitations of Powers:
- State human rights commissions cannot call for information from the national government, which
means that they are implicitly denied the power to investigate armed forces under national control.
6. NHRC’s powers are related to violations of human rights by the armed forces that have been largely
restricted.

What Reforms can be made to make NHRC more Effective?

1. Need for Restructuring:
- There is a need for a complete revamping of NHRC to make it more effective and truly a watchdog of
human rights violations in the country.
2. Enforcement of Decisions:
- NHRC efficacy can be enhanced by the government if commission decisions are made enforceable.
3. Inclusion of New Members:
- There is a need to change in composition of the commission by including members from civil society
and activists.
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4. NHRC needs to develop an independent cadre of staff with appropriate experience.

5. New Laws & Transparency:
- Many laws in India are very old and archaic in nature by amending which government can bring more
transparency in regulations.
6. Enhance and Strengthen Participation:
- To improve and strengthen the human rights situation in India, state and non-state actors need to work
in tandem.

FAQ-
1. Current NHRC Chairperson- Justice Arun Kumar Mishra
2. Current Rajasthan SHRC- Justice Shri Gopal Krishan Vyas

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Module 5

Judicial Response for the Protection and Enforcement of Human Rights defined in the Constitution of
India

Judicial Review
It means the power of the courts to pronounce upon the validity of the acts of public authorities both executive
and legislative. (Modifying the prescribed procedures & enlarged their jurisdiction by interpreting the
constitutional provisions)

Judicial Activism
It means the judicial pronouncements in matters of general social interest or welfare even though these may
not be considered in its jurisdiction according to the traditional understanding of law. For this, the judiciary
also may not necessarily follow the established procedures of litigation.
The Fundamental Rights (Human Rights) enshrined in Part III of the Constitution of India has been classified
as under:
i. Right to Equality [Arts. 14-18];
ii. Right to Freedom [Arts. 19-22];
iii. Right against Exploitation [Arts. 23-24];
iv. Right to Freedom of Religion [Arts. 25-28];
v. Cultural & Educational Rights [Arts. 29-30]; and
vi. Right to Constitutional Remedies [Art. 32].

Article Note
Art. 14- Right to Equality Gurusharan Singh v. New Delhi Municipal Corporation
- It was held that the guarantee of equality before law is a positive
concept and it cannot be enforced by a citizen or court in a negative
manner.
E.P. Rupayya v. State of Tamil Nadu
- Doctrine of Reasonable Classification & Arbitrariness was laid down.
Art. 15- Prohibition of Article 15(3) is a special provision for women & children.
discrimination on grounds
of religion, race, caste,
sex or place of birth
Art. 16- Equality of Madhu Kishwar v. State of Bihar
opportunity in matters of - Art. 16(2) prohibits gender discrimination.
public employment
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Art. 17- Abolition of “Untouchability” is abolished and its practice in any form is forbidden. The
Untouchability enforcement of any disability arising out of “Untouchability” shall be an
offence punishable in accordance with law.
Art. 18- Abolition of titles
Art. 19- Protection of Rights under Art. 19 are:
certain rights regarding a. to freedom of speech and expression;
freedom of speech, etc. b. to assemble peaceably and without arms;
c. to form associations or unions or co-operative societies;
d. to move freely throughout the territory of India;
e. to reside and settle in any part of the territory of India;
f. [Omitted]; and
g. to practise any profession, or to carry on any occupation, trade or
business.
Art. 20- Protection in It provides for:
respect of conviction for a. No ex-post facto application of law;
offences b. No Double Jeopardy;
c. Prohibition against self-incrimination.
Art. 21- Protection of life No person shall be deprived of his life or personal liberty except according to
and personal liberty procedure established by law.
Right to Life means ‘Right to Live’ which further means to live with full
human dignity and without humiliation and deprivation or denial of any part.
Right to Personal Liberty means Freedom from all physical restraints and
questions of any sort. Personal Liberty means that once body shall not be
touched, violated, arrested or imprisoned and once limbs shall not be injured
or maimed except under the authority of law. All rights attached to persona
are usually called Personal Liberties and they are too much to be enumerated.
These rights are available not only against executive but also against
legislature.
AK Gopalan v. State of Madras
- It was held that Art. 21 provides protection only against executive and
not legislature.
Maneka Gandhi v. Union of India

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- It was held that Art. 21 provides protection not only against executive
but also against legislature. It widened the meaning of Right to Life &
Personal Liberty.
Let’s look at various rights:
1. Right to Life includes Right to Live with Human Dignity
- Maneka Gandhi v. Union of India
The Court gave a new dimension to Art. 21. It held that the Right
to Life is not merely confined to physical existence but it includes
within its ambit the right to live with human dignity.
- Francis Coralie v. Union Territory of Delhi
Same views were reiterated.
2. Right to Life also includes Right to Livelihood
- Olga Tellis v. Bombay Municipal Corporation
Also known as Pavement Dwellers Case. 5 judge constitution
bench held that the word ‘life’ under Art. 21 also includes Right to
Livelihood. And it would be violative of Art. 21 if the Municipal
authorities remove the huts from the pavements & public places.
It would be deprivation of life and right to livelihood.
- All India Iman Organization v. Union of India
3. Right to Shelter as a Basic Human Right
- Chameli Singh v. State of Uttar Pradesh
- Olga Tellis v. Bombay Municipal Corporation
- Adhikar Abhiyan v. Union of India
4. Right to Privacy
- Mr. X v. Hospital
SC held that Right to Privacy is a Fundamental Right under Art.
21 but it is not an absolute right and therefore, restrictions can be
imposed on it for the prevention of crime, disorder and protection
of health.
- State of Maharashtra v. Madhukar Narain
It has been held that the Right to Privacy is available even to a
woman of easy virtue and no known can invade her privacy.
5. Right to Education
- Mohini Jain v. State of Karnataka

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It is popularly known as Capitation Fee Case wherein SC held that

the Right to Education is a Fundamental Right under Art. 21 which
cannot be denied to a citizen by charging higher fees known as
capitation fees. Right to Education flows from Right to Life.
- Unikrishnan v. State of Andhra Pradesh
6. Right to Travel Abroad
- Satwant Singh v. Assistant Passport Officer, New Delhi
SC held that Right to Travel Abroad is part of a person’s personal
liberty within meaning of Art. 21 and therefore, no person could
be deprived of his right to travel abroad except according to
procedure established by law.
7. Right to Health & Medical Assistance
- Parmanand Katara v. Union of India
SC held that it is the professional obligation of all the doctors
whether government or private to extend medical aid to the injured
immediately to preserve life without waiting for legal formalities.
8. Right to Die
- Gian Kaur v. State of Punjab
It is not a Fundamental Right and is not included in Right to Life.
9. Right against Delayed Execution
- Triveni Ben v. State of Gujarat
5 Judge Bench of SC held that undue long delay in execution of
death sentence will entitle the condemned person to approach the
court for conversion of death sentence into life imprisonment.
10. Right against Inhumane Treatment
- Kishori Singh v. State of Rajasthan
SC held that use of Third Degree Method by police is violative of
Art. 21 and directed government to take necessary step to educate
the people as to inculcate values of respect for human beings.
11. Right against Handcuffing
- Prem Chandra Shukla v. Delhi Administration
12. Right against Custodial Violence
- PUCL v. Union of India
13. Right to Electricity comes under Right to Life

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- MK Acharya v. CMD West Bengal State Electricity Distribution

Company
14. Right to Road in Hilly Areas is a Basic Right
- State of Madhya Pradesh v. Umed Ram Sharma
15. Right to Free Legal Aid
- Khatri v. State of Bihar
16. Right to Free & Fair Trial
- K Ambhazhajan v. Superintendent of Police
17. Right to Speedy Trial
- Hussainara Khatoon v. State of Bihar
18. Right to Sustainable Development
- Intellectual Forum, Tirupati v. State of Andhra Pradesh
19. Smoking in Public Places is indirectly Deprivation of Life
- Murli S Devra v. Union of India
20. Right against Solitary Confinement
- Sunil Batra v. Delhi Administration
21. Right to Pollution Free Environment is a Basic Human Right
- Subhash Kumar v. State of Bihar
Art. 21A- Right to The State shall provide free and compulsory education to all children of the
education age of six to fourteen years in such manner as the State may, by law,
determine.
Art. 22- Protection against Art. 22 prescribes the minimum procedural requirements that must be
arrest and detention in included in any law enacted by the legislature in accordance with which a
certain cases person may be deprived of his life and personal liberty.
Art. 22 provides 2 types of protection:
1. Punitive Definition [Clause 1, 2, 3]
- Persons arrested under the ordinary law of crimes → Protection
regarding general arrest.
2. Preventive Definition [Clause 4, 5, 6, 7]
- Persons detained under the law of Preventive Detention like
MISA, POTA, Preventive Detention Act, 1950. → Protection
against detention under Preventive Detention Laws.
Protection regarding General Arrest

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i. The Right to be Informed about the ground of arrest. Ground of

custody to be informed to the defence.
- Tarapada De v. State of West Bengal
SC held that if delay occurs in giving information of the ground of
arrest, then explanation of the delay would be refuted.
- Madhu Limaye v. State of Punjab
Same views were reiterated
ii. The Right to Consult and to be Represented by a Lawyer of his own
Choice or Defended for the Defence of him.
- Hussainara Khatoon v. Secretary, State of Bihar
Every person has Right to Legal Aid and if it is not given, then it
is violative of Art. 21. If an accused or arrested person is poor and
is incapable to employ any lawyer owing to poverty, then such
person has the right to have free legal aid and lawyer shall be
appointed at the expenses of the state.
- Powell v. Albama
Duty of Government to appoint a lawyer.
iii. The Right to be produced before a Magistrate within 24 hours of arrest.
- Gunupati Keshavram Reddy v. Nafisul Hasan
The speaker of Uttar Pradesh Vidhan Sabha issued a warrant for
the arrest of the petitioner on a charge of breach of privilege of
house. He was arrested in Bombay and cannot be brought to
Lucknow in 24 hours before a Magistrate. It was held to be
violation of his fundamental right under Art. 22 and therefore, SC
ordered for his release.
iv. The Freedom from Detention within 24 hours beyond said period
except authority of Magistrate.
Art. 22(3) provides exceptions or protection of Clause (1) and (2) of Art. 22
but it is not available to following cases:
a. An enemy alien;
b. A person arrested and detained under Preventive Detention Law.
Art. 22(4) provides for Review by Advisory Board. It says that no law
providing for preventive detention shall authorize the detention of a person
for a longer period than three months unless-

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(a) an Advisory Board consisting of persons who are, or have been, or are
qualified to be appointed as, Judges of a High Court has reported
before the expiration of the said period of three months that there is in
its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorize the detention
of any person beyond the maximum period prescribed by any law
made by Parliament under sub-clause (b) of clause (7)
- Shubham Lal v. State of Uttar Pradesh
SC held that if the Advisory Board is of the opinion that there are
no sufficient reasons of detention, then the government has to
withdraw the order of detention.
Art. 22(5) Right to know the reason of Detention & Arrest- Grounds of arrest
would be made or communicated in language which the detainee knows.
- Ibrahim Ahmad v. State of Gujarat
Facts are given in Urdu because detainee knows Urdu. In
translation, it becomes late because Urdu Translator was not
found. SC considered it exceptional circumstances but it was
considered illegal.
- Hasmukh v. State of Gujarat
It was held that ground of detention is required to be extremely
clear and written. They must be in such language that the detainee
can understand.
Art. 22(6) provides for exceptions of Right of Representation- For authority,
it is not essential that all the facts are to be told to detainee. Only such facts
are disclosed which such authority considers not to be against the public
interest to disclose.
- Puranlal Lakhanpal v Union of India
Art. 22(7) Parliament may by law prescribes:
a) the circumstances under which, and the class or classes of cases in
which, a person may be detained for a period longer than three months
under any law providing for preventive detention without obtaining
the opinion of an Advisory Board in accordance with the provisions of
subclause (a) of clause (4);

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b) the maximum period for which any person may in any class or classes
of cases be detained under any law providing for preventive detention;
and
c) the procedure to be followed by an Advisory Board in an inquiry under
sub-clause (a) of clause (4).
Earlier Art. 21 was suspended during Internal Emergency in 1976 and it was
held valid in ADM Jabalpur v. Shivkant Shukla. Later on, 44th Amendment
Act prescribes that Art. 21 cannot be suspended even during emergency.
Art. 23- Prohibition of Article 23(1) prohibits:
traffic in human beings and a) traffic (trade) in human being;
forced labour b) begar; and
c) similar form of forced labor.
It also declares that any contravention of the prohibition shall be an offence
and punishable in accordance with law.
Traffic in human being means selling & buying of men & women like animals.
International Convention have been also signed for this purpose or in
International Perspective.
- State of Gujarat v. Hon’ble HC of Gujarat
Selling & Buying of men & women comes under Illegal Trade of
women & children.
- Raj Bahadur v. Legal Remembrancer
Prostitution of women & child and illegal trade of them is
prohibited by Immoral Traffic [Prevention of Slavery] Act, 1956.
Although the term slavery is not expressly used in the terminology
of Article 23(1), yet the expression ‘Traffic in Human Being’
could be understood in same regard.
Ss. 370-374 of IPC contains provisions to prohibit the practice of slavery and
slave trade and makes it a punishable offence. Whoever imports, exports,
removes, buys, sells any person as slave shall be punished with imprisonment
of either description for a term which may extend to 7 years and shall also be
liable to fine.
Art. 35 of Constitution in which Parliament has power to give punishment by
making rules. Article 35 (a) (ii) of the Constitution states that the Parliament
shall have power and Legislature of State shall not have powers to make laws

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for prescribing punishment for more acts which are declared to be offences
under Part III.
- Basudeo v. Mittal
Begar has not been defined under the Constitution.
- Shama Bai v. State of Uttar Pradesh
Involuntary work without payment is Begar. However, a voluntary
agreement to do extra work without payment is not begar or forced labor.
- Tangkhul v. Simrei Shailei
A custom under which each householder in a village was required to offer
one day free service to the headman of the village was violative of Art.
23(1).
Art. 42 of the Constitution in which State has to make provision for securing
just and humane conditions of work and for maternity relief.
Art. 39 provides following:
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender
age of children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth
are protected against exploitation and against moral and material
abandonment.
Different forms of forced labor, bonded labor was prevalent in various parts
of the country and still after 75 years of independence is prevailing in India.
This system of bonded labor was abolished in 1976 by introducing Bonded
Labor (Abolishing) System, 1976.
Cases:
1. PUDR v. Union of India
- It is popularly known as Asiad Case. Minimum wages after forced
labor was not given to the employees and it was held as violation
of Art. 23.
2. Deena Dayal v. Union of India

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- It was held that the prisoners were entitled to payment of

reasonable wages for their work. In this case, labor taken from
prisoners without paying remuneration was held to be forced labor.
3. Sanjit Roy v. State of Rajasthan
- It has been held that the payment of wages lower than the
minimum wages to the person employed in Famine Relief work is
violative of Art. 23.
4. Neerja Choudhary v. State of Madhya Pradesh
- It is not essential that bonded labor is released but their
rehabilitation is also necessary.
Art. 23(2) Compulsory service for public purpose- Art. 23(2) makes an
exception in favor of State and enables the State to impose Compulsory
Service for public purpose, but while doing so the state will not discriminate
on grounds only of religion, race or class or any of them. The expression
‘Public Purpose’ includes military & police service and also other social
purposes.
- Dulal Samantha v. District Magistrate, Howrah
There is no violation of any public purpose.
- State v. Jorawar
The Chamba Force Paid Labor Act is void in regards to Art. 23(2).
- State of Bihar v. Kameshwar Singh
Compulsory service by Tehsildar and for private purpose is
violative of Art. 23. To promote welfare of people is envisaged in
DPSP [Art. 39(e)].
Art. 24- Prohibition of No child below the age of fourteen years shall be employed to work in any
employment of children in factory or mine or engaged in any other hazardous employment.
factories, etc. Art. 39(f) states that it is the duty of the State to ensure that the health &
strength of workers- men and women & the tender age of children are not
affected and that citizens are not enforced by economic necessity to enter in
avocations unsuited to their age or strength.
Legislations:
a. Child Labor [Prohibition & Regulation] Act, 1986
- Child means a person who has not completed the age of 14 years
cannot work in certain occupation and processes.

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- Part A: Schedule:
i. Railway- Transport of Passengers;
ii. Railway Premises;
iii. Catering in moving train;
iv. Construction Work.
- Part B: Bidi Making, Carpet Weaving, Cement Manufacture,
Dying & Weaving, Fire Works & Manufacture of Match
Explosives, Construction Industry
- S. 14- Penalty: 1 year imprisonment and Rs. 20,000/- penalty or
both, if any person makes the child under 14 years of age to work.
b. Employment of Children Act, 1938
- Age of Child is 15 years in certain occupations but now it has been
repealed by Child Labor [Protection & Regulation] Act, 1986.
c. Factories Act
- Age is 14 years [S. 67].
d. Mines Act, 1952
- Age is 15 years [S. 45].
e. Motor Transport Workers Act, 1961
- Age is 14 years [S. 21].
f. Beedi & Cigar Work (Condition) Act
- Age is 14 years [S. 24].
Article 39 (e), 41, 47 are also the provision for health & strength & nutrition
of the child which is the duty of the state.
Cases:
- PUDR v. Union of India
Constitution prohibits child working below the age of 14 years.
- Labors Working on Salal Hydro Project v. State of Jammu & Kashmir
Children can work in harmless nature jobs. Construction work was there
but below the age of 14 years it is violation as child are assets of the
nation and they could not be deprived of Art. 39 (e) (f) benefits.
- Vyendra Thakur v. State of Madhya Pradesh & Others
It is the obligation of the State & Society to protect the child because
they are the future and the treasure.
- Bandhua Mukti Morcha v. Union of India

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As reiterated in MC Mehta Case.

- MC Mehta v. State of Tamil Nadu [1997]
The Children below the age of 14 years cannot be employed in any
hazardous industry, mines or other works.
Rs. 25,000/- was provided for Child Labor Rehabilitation Welfare Fund
by Employer & instructions were given to:
i. Match Industry in Sivakasi, Tamil Nadu
ii. Diamond Polishing Industry in Surat
iii. Precious Stone Polishing Industry, Jaipur
iv. Lock Making Industry, Aligarh
- MC Mehta v. State of Tamil Nadu [1991]
Children could be employed in process of packing to avoid exposure.
Packing should be done in another part and insurance of Rs. 50,000/-
was provided by the employer.
Art. 25- Freedom of
conscience and free
profession, practice and
propagation of religion
Art. 26- Freedom to
manage religious affairs
Art. 27- Freedom as to
payment of taxes for
promotion of any particular
religion
Art. 28- Freedom as to
attendance at religious
instruction or religious
worship in certain
educational institutions
Art. 29- Protection of
interests of minorities
Art. 30- Right of minorities
to establish and administer
educational

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institutions
Art. 32- Remedies for
enforcement of rights
conferred by this Part

Judicial Response for the protection and enforcement of Human Rights as defined in Protection of
Human Rights
The Protection of Human Rights Act, 1993 is an Act to provide for the Constitution of a National Human
Rights Commission, State Human Rights Commission, Human Rights Courts for better protection of human
rights and for matters connected therewith.
S. 2(1)(d) provides the definition of human rights which means the rights relating to life, liberty, equality and
dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and
enforceable by Courts in India.
Cases-
1. S. 2(1)(d)- Human Rights
a. M/s Zee Telefilms Ltd. & Another v. Union of India
It was held that right to development in developing countries in all spheres is also human right.
To achieve this, promotion of human development and the preservation and protection of
human rights precedes from a common platform. Progress and development in all fields will
not give a boost to the economy of the country but also result in better living conditions for the
people of India.
b. Re the Matter of Citizen of the District of Jehanabad
Village women were beaten by police. As per medical examination of injured women, a clear
case of violation of Human Rights as defined in S. 2(d) is made out. Injured women directed
to be paid compensation.
2. S. 3- Constitution of NHRC & S. 4- Appointment of Chairperson and other Members
a. PUCL v. Union of India
In this case, appointment of a retired Police Officer who held the post of Director, CBI and
Vice-President (Asia) Interpole as a member of NHRC was challenged on the ground that it
was not in the tune with the object of Protection of Human Rights Act and the public perception
of the Police is as the violator of Human Rights. Hence, S. 3(2)(d) should be so interpreted so
s to exclude the police officers from becoming members of the Commission. But the SC held
that his appointment as a member of NHRC is valid on the ground that he has satisfied the
requirement of S. 3(2)(d).
3. S. 5- Resignation & Removal of Chairperson & Member
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a. Khemchand v. Union of India

b. Sukhhans Singh v. State of Punjab
c. MD, ESIL, Hyderabad v. V Karunakaran
In all these cases, SC held that during inquiry of alleged person due to misbehavior and
incapacity that persons shall be given reasonable opportunity of being heard. This is Principle
of Natural Justice.
4. S. 12- Functions of the Commission
a. Santosh Hospital Pvt. Ltd. v. SHRC
SC held that S. 12(a)(ii) which lays down the negligence in the prevention of such violation by
a public servant and other persons, does not come under this section. Public Servant will be
held liable if a hospital is surely not a public servant. Hence, this Act would not apply to it at
all.
b. Paramjit Kaur v. State of Punjab
SC held that S. 36(2) of the Protection Act, 1993 says that the Commission or State
Commission shall not inquire into any matter after the expiry of 1 year from the date of
violation of human rights is alleged to have been committed. But where NHRC proceeds to
investigate and inquire into the violation of the human rights pursuant to the directions of this
court under Art. 32 of the Constitution. The bar contained in S. 36(2) will not apply because in
such event the NHRC does not function under the provision of the Act. But an expert body
aiding the SC in discharge of its constitutional power under Art. 32 as held in NC Dhoundlal
v. Union of India.
5. S. 13- Power Relating to Inquiries
a. State of Maharashtra v. Sobha Vittal Kolte
SC held that the Commission has only those powers of Civil Court which are set out in S. 13
of the Act and therefore by necessary implications the Commission does not have the power
into review the earlier order passed.
6. S. 14- Investigation
a. Association of Dead People v. State of Uttar Pradesh
Where the livelihood of many farmers was in trouble due to land illegally taken by Mafia, then
Allahabad HC ordered it to be violation of human right and investigation of the matter was
given to an Amicus Curiae.
7. S. 15- Statement made by persons to the Commission
a. Zahira Habibullah Sheikh & Another v. State of Gujarat
Procedure adopted during inquiry was characterized to be unfair and without transparency. But
SC held that the procedure adopted was quite transparent.
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8. S. 16- Person likely to be prejudicially affected to be heard

a. Madhya Pradesh Human Rights Commission v. State of Madhya Pradesh & Others
It was held that during inquiry, commission shall give to that person a reasonable opportunity
of being heard (Audi Alteram Partem) and to produce evidence in his defence.
9. S. 17- Inquiry into complaints
a. Paramjit Kaur v. State of Punjab
SC held that in the case of violation of Human Rights, NHRC has the right to utilize the services
of CBI and to make report of it.
10. S. 18- Steps during and after inquiry
a. Santosh Hospital Pvt. Ltd., Chennai v. SHRC, Tamil Nadu
S. 18(1) provides for the commission of violation of human rights or abetment by public servant
and it shall be held liable. But in this case, hospital is not a public servant and therefore, this
section shall not apply.
11. S. 21- Constitution of State Human Rights Commissions
a. PUCL, Allahabad v. State of Uttar Pradesh
It was held that State Government may constitute a body to be known as SHRC u/s. 21.
b. Neelabati Behara v. State of Orissa
SC held that protection of human rights is a constitutional object of the Supreme Court and the
HC to find new tools and invent new remedies to grant relief of enforcement of fundamental
rights.
c. Common Cause v. Union of India
It cannot be said to be relevant where directions were issued for establishing consumer forums
under the Consumer Protection Act.
d. Supreme Court in Judges Case
It was held that a writ could be issued for fixation of judge’s strength in the HC and its
justiciability is also relevant.

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Module 6

Protection of Human Rights relating to Scheduled Castes and Scheduled Tribes under the various laws
in India:

Protection of Civil Rights Act, 1955

Article 17 of the Constitution of India has abolished "untouchability" and its practice in any form has been
forbidden. Article 17 also provides that the enforcement of any disability arising out "of untouchability" shall
be an offence punishable in accordance with law.
The Constitution of India is the supreme law of the land but it has to be noted that to provide something in the
Constitution is one thing but bring about the same in practice is another or an entirely different thing. Though
the “untouchability” has been abolished by the Constitution and its practice in any form is forbidden, but to
remove this evil practice which has existed in the society for centuries, is not so easy. Therefore, in addition
to the mandate of the Constitution, it was necessary to take some further steps to eradicate this evil practice
from the society. Moreover, it requires social awareness.
One of such steps taken by the Government was the passing of the Protection of Civil Rights Act in 1955.
This Act was later on amended in 1976, According to the Preamble of the Act, it is "An Act to prescribe
punishment for the preaching and practice of "Untouchability" for the enforcement of any disability arising
therefrom and the matters connected therewith."
This Act extends to the whole of India. In this Act, unless the context otherwise requires, the term "civil rights"
means any rights accruing to a person by reason of the abolition of untouchability by Article 17 of the
Constitution.
Section 3 of the Act which prescribes punishment for enforcing religious disabilities provides:
Whoever on the ground of "untouchability" prevents any person –
a) from entering any place of public worship which is open to other person's professing the same religion
or any section thereof as such person; or
b) (b) from worshipping or offering prayers or performing any religious service in any place of public
worship, or bathing in or using the waters of any sacred tank, well, spring or water-course, river or
lake or bathing at any ghat of such tank, water course, river or lake in the same manner and to the same
extent as it is permissible to the other person professing the same religion or any section thereof, as
such person,
shall be punishable with imprisonment for a term of not less than one month and not more than six months
and also with fine which shall not be less than one hundred rupees and not more than five hundred rupees.

The Act also prescribes punishment for enforcing social disabilities, Section 4 of the Act provides: -
Whoever on the ground of 'untouchability enforces against any person any disability with regard to:
i. access to any shop, public restaurant, hotel or place of public entertainment; or
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ii. the use of any utensils and other articles kept in any public restaurant, hotel, dharmasala, sarai or
musafirkhana for the use of the general public or of any section thereof; or
iii. the practice of any profession, or the carrying of or any occupation, trade or business or employment
in any job; or
iv. the use of or access to any river, stream, spring, well, tank, cistern, water tap or other watering place,
or any bathing ghat, burial or cremation ground, any sanitary convenience, any road, or passage or any
other place of public resort which other members of the public, or any section thereof, have a right to
use or have access to; or
v. the use of or access to any place used for a charitable or public purpose maintained wholly or partly
out-of-State-funds or dedicated to the use of general public or any section thereof; or
vi. the enjoyment of a benefit under a charitable trust created for the benefit of general public or of any
section thereof; or
vii. the use of, or access to, or any public convenience; or
viii. the construction, acquisition or, occupation any residential premises in any locality, whatsoever, or
ix. the use of any Dharamsala, Sarai or musafirkhana which is open to the general public, or to any section
thereof; or
x. the observance of any social or religious custom, usage or ceremony taking part in or taking out, any
religious, social or cultural procession;
xi. the use of jewellery and finery.

shall be punishable with imprisonment for a term of not less than one month and not more than six months
and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees.

This Act was passed more than 60 years back. The value of money having declined during these years, the
amount of one hundred (minimum) and five hundred (maximum) is far from adequate. The amount of fine
should be enhance from one hundred to one thousand as minimum and from five hundred to five thousand as
maximum.
This Act also prescribes similar penalty for refusing to admit persons to hospital, dispensary, educational
institution or any hotel if it is established or maintained for the benefit of general public or any section thereof.
So is the case with the refusal to sell goods or render services on the same terms and condition as to such
goods are sold to other persons in the ordinary course of business.

As regards punishment for, other offences arising out of "untouchability", Section 7 provides:
(1) whoever-
(a) prevents any person from exercising any right accruing to him by reason of the abolition of
"untouchability" under Article 17 of the Constitution; or

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(b) molests, injures, annoys, obstructs or causes or attempts to cause obstruction to any person in the
exercise of any such right or molest, injures, annoys or boycotts any person by reason of his having
exercised any such right, or
(c) by words, either spoken or written or by signs or by visible representations or otherwise, incites or
encourages any person or class of persons or public generally to practice 'untouchability' in any form
whatsoever; or
(d) insults (or attempts to insult on the ground of 'untouchability' member of Scheduled Caste.

shall be punishable with imprisonment for a term of not less than one month and not more than six months
and also with fine which shall not be less than one hundred rupees and not more than five hundred rupees.

Section 10 of the Act provides punishment for abetment of offence. Further, explanation to Section 10 provides
that a public servant who willfully neglects the investigation of any offence punishable under this Act shall be
deemed to have abetted an offence punishable under this Act.
The Act confers upon the State Government power to impose collective fines. It provides that if after an
enquiry in the prescribed manner, the State Government is satisfied that the inhabitants of an area are
concerned in, or abetting the commission of, any offence punishable under this Act, or harboring persons
concerned in the commission of such offence on failing to render all the assistance in their power to discover
or apprehend the offender or offenders, or suppressing material evidence of the commission of such offence,
the State Government, may, by notification in the Official Gazette impose a collective fine on such inhabitants
and apportion such fine amongst the inhabitants who are liable collectively to pay it and such apportionment
shall be made according to the State Government's judgment of the respective means of such inhabitants and
in making any such apportionment the Government may assign a portion of such fine to a Hindu undivided
family to be payable by it.
There is also provision for enhanced penalty on subsequent conviction. It is also provided that notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 to 1974), every offence punishable under this
Act shall be cognizable and every such offence, except where it is punishable with imprisonment for a
minimum term exceeding three months, may be tried summarily by a Judicial Magistrate of the first class or
in a Metropolitan area by a Metropolitan Magistrate in accordance with the procedure specified in the Code.
As regards public servant it is necessary to take previous sanction of the Central Government, in the case of a
person employed in connection with the affairs of the Union; and of the State Government, in the case of a
person employed in connection with the affairs of the State, for taking cognizance of such offence by any-
court.
Last but not the least, this Act has been given overriding powers over other laws. Section 16 provides that
save as otherwise expressly provided in the Act, the provisions of this Act shall have effect notwithstanding

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anything inconsistent therewith contained in any other law for the time being in force or any custom or usage
or any instrument having effect by virtue of any such law or any decree or order of any Court or other authority.

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (No. 33 of 1989)
In view of the situation prevailing before the commencement of the Constitution of India, the framers of the
Indian Constitution were greatly concerned about the Scheduled Castes and the Scheduled Tribes and
educationally backward class of citizens and other weaker sections of the society. This is evident from several
provisions of the Constitution. Article 15 which deals with prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth makes it clear in Clause (4) that nothing in this article or Clause (2)
of Article 29 shall prevent the State from making special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Clause (4A) of
Article 16 which was inserted by the Constitution (Seventy-seventh Amendment) Act, 1955 also provides that
nothing in Article 16 (which deals with equality of opportunity in matters of public employment) shall prevent
the State from making any provision for reservation in matters of promotion to any class or classes of posts in
the services of the State in favor of the Schedule Castes and the Scheduled Tribes which, in the opinion of the
State, are not adequately represented in the services under the State.
Article 330 provides for reservation of seats for Scheduled Castes and Scheduled Tribes in the House of
People. Similarly, Article 332 provides for reservation of seats for Schedule Castes and Schedule Tribes in
the Legislative Assemblies of the States. Article 338 provides for the establishment of National Commission
for Scheduled Castes and Scheduled Tribes.

Composition:
It shall consist of a Chairperson, Vice-Chairperson, and 5 other members. All of these shall be appointed by
the President of India. Again, the conditions of service and tenure of the Chairperson, Vice-Chairperson and
Members so appointed shall be such as the President may by rule determine.

Functions of the Commission:

Commission to perform the following functions:
a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and
Scheduled Tribes under the Constitution or under any other law for the time being in force or under
any order of the Government and to evaluate the working of such safeguards;
b) to enquire into specific complaints with respect to the deprivation of rights and safeguards of the
Scheduled Castes and Scheduled Tribes.
c) to participate and advise on the planning process of socio-economic development of the Scheduled
Castes and Scheduled Tribes and to evaluate the progress of their development under the Union and
any State;

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d) to present to the President, annually and at such other times as the Commission may deem fit, reports
upon working of those safeguards;
e) to make in such report recommendations as to measures that should be taken by the Union or any State,
for the effective implementation of those safeguards and other measures for the protection, welfare
and socio-economic development of the Scheduled Castes and Scheduled Tribes; and
f) to discharge such other function in relation to the protection, welfare and development and
advancement of the Scheduled Castes and Scheduled Tribes as the President may, subject to the
provisions of any law made by Parliament, by rules specify.

Procedure and Power:

The Commission has the power to regulate its own procedure. The Commission while acting under Article
338(5)(a)(b) noted above or discharging those functions shall have all the powers of civil court trying a suit
and in particular in respect of following matters namely:
a) summoning and enforcing the attendance of any person and examining him on oath;
b) requiring the discovery and production of any document;
c) receiving evidence on affidavits;
d) requisitioning any public record or copy thereof from any Court or office;
e) issuing Commissions for the examination of witnesses and documents; and
f) any other matter which the President may, by rule, determine.

The power of civil courts conferred on the Commission in clause (8) noted above do not include the power to
issue injunctions to anyone who in its opinion seems to be acting against the interests of the Scheduled Castes
and Scheduled Tribes. But like the National Human Rights Commission or other Commissions, it can
approach the appropriate Court for injunctions or mandamus to protect the interests of these sections of
society.
Articles 341 and 342 also deal with Scheduled Castes and Scheduled Tribes, respectively. Article 341 provides
that the President may with respect to any State or Union Territory, and where it is a State after consultation
with the Governor thereof, by public notification, specify castes, races or tribes or parts of or groups within
casts, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in
relation to the State or Union Territory, as the case may be.
Further, Parliament may by law include or exclude from the list of Scheduled Castes specified in a notification
issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as
aforementioned a notification issued under the said clause shall not be varied by any subsequent notification.

Similarly, Article 342 provides that the President may with respect to any State or Union Territory and where
it is a State, after consultation with the Governor thereof, by public notification, specify the tribes, or tribal
communities or parts of or groups within tribes or tribal communities which shall for the purposes of this
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Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may
be.
Further, Parliament may, by law, include in or exclude from the list of Scheduled Tribes specified in a
notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal
community, but save as aforesaid a notification issued under the said clause shall not be varied by any
subsequent notification.
Being inspired by the letter and spirit of the above constitutional provisions, the Government of India passed
the Scheduled Castes and the w Scheduled Tribes (Prevention of Atrocities) Act, 1989. It received the assent
of the President on 11th September, 1989. The main reason for passing of this Act was that despite the above
constitutional provisions, the attitude of the other castes in the society had not changed in respect of Scheduled
Castes and Scheduled Tribes. The members of Scheduled Castes and Scheduled Tribes were still being
subjected to atrocities. As the Preamble of the Act states, it is “an Act to prevent the commission of offences
of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for special
courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for
matters connected therewith or incidental thereto.”
This Act extends to the whole of India except the State of Jammu and Kashmir.
The term ‘atrocity’ has been defined under S. 2(a) of the Act, which lays down that ‘atrocity’ means an offence
punishable under Section 3. S. 3(1) enlists a number of acts that are punishable under that section and
therefore, they shall come within the purview of the term ‘atrocity’ under S. 2(a). Section 3 lists a long list of
acts that are punishable.

Main provisions of the Act- Following are the main points of the Act:

Punishment for offences of atrocities-

Section 3(1) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe:
i. forces a member of a Scheduled Caste or Scheduled Tribe to drink or eat any inedible or obnoxious
substance;
ii. acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled
Tribe by dumping excreta, waste matter, carcasses, or any other obnoxious substance in his premises
or neighborhood;
iii. forcibly removes clothes from the person of a member of a Scheduled Caste (hereinafter referred as
'SC) or Scheduled Tribe (hereinafter referred as 'ST') or parades him naked or with painted face or
body or commits any similar act which is derogatory to human dignity;
iv. wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent
authority to be allotted to, a member of a SC or ST or gets the land allotted to him transferred;

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v. wrongfully dispossesses a member of a SC or ST from his land or premises or interferes with the
enjoyment of his rights on any land, premises or water;
vi. compels or entices a member of a SC or ST to do "begar" or similar forms of forced or bonded labour
or other than any compulsory service for public purpose imposed by Government;
vii. forces or intimidates a member of a SC or a ST not to vote or to vote to a particular candidate or to
vote in a manner other than provided by law;
viii. institutes false, malicious or vexatious suit or criminal or other proceedings against a member of a SC
or a ST;
ix. gives any false or frivolous information to any public servant and thereby causes such public servant
to use his lawful power to the injury or annoyance of a member of a SC or a ST;
x. intentionally insults or intimidates with intent to humiliate a member of a SC or a ST in any place
within public view;
xi. assaults or uses force to any woman belonging to a SC or a ST with intent to dishonor or outrage her
modesty;
xii. being in a position to dominate the will of a woman belonging to a SC or a ST and uses that position
to exploit her sexually to which she would not have otherwise agreed;
xiii. corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by the members
of the SC or the ST so as to render it less fit for the purpose for which it is ordinarily used;
xiv. denies a member of a SC or a ST any customary right of passage to a place of public resort or obstruct
such member so as to prevent him from using or having access to a place of public resort to which
other members of public or any section thereof have a right to use or access to;
xv. forces or causes a member of a Scheduled Caste or Scheduled Tribe to leave his house, village, or
other place or residence,

shall be punishable with imprisonment for a term which shall not be less than six months but which may
extend to five years with fine.

The Act also provides punishment to public servant for neglect of duties required to be performed by him
under the Act. There is also provision for enhanced punishment for subsequent conviction. Further, where a
person has been convicted of any offence punishable under Chapter of the Act, the Special Court may, in
addition to awarding, any punishment, by order in writing, declare that any property, movable or immovable
or both belonging to the person which has been used for the commission of that offence, shall stand forfeited
to Government.
The Act also makes provision for externment of persons who are likely to commit an offence under Chapter
II of this Act.

Special Court-
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Section 14 of the Act provides that for the purpose of providing for speedy trial, the State Government, with
the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each
district a Court of Session to be a Special Court to try the offences under this Act.
Further for every Special Court, the State Government shall by notification in the Official Gazette, specify a
Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years,
as a Special Public Prosecutor for the purpose of conducting cases in that court.

Collective Fines-
As noted earlier, Section 10-A of Protection of Civil Rights Act, 1955 empowers the State Government to
impose collective fines. Section 16 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 provides that the provision of Section 10-A of the Protection of Civil Rights Act, 1955 shall so far
as may be, apply for the purposes of imposition and realization of collective fine and for all other matters
connected therewith under this Act

Preventive action-
The Act also makes provision for preventive action to be taken where persons other than those of SC and ST
are likely to commit an offence or have threatened to commit any offence under this Act in a specific area.
This can be done by declaring such an area prone to atrocities and necessary preventive action can be taken
for keeping the peace and good behavior and maintenance of public order and tranquility. But this can be done
only by a District Magistrate or a Sub-Divisional Magistrate or any other executive or any Police Officer not
below the rank of a Deputy Superintendent of Police.
Lastly, the Act empowers that the Central Government may, by notification in the Official Gazette, make rules
for carrying out of the purposes of this Act.

National Commission for Scheduled Castes and Scheduled Tribes

Important changes brought about by the Constitution (89th Amendment) Act, 2003-
The Constitution (Eighty-Ninth Amendment) Act, 2003 brought about important changes. It bifurcated the
existing National Commission for Scheduled Castes and Scheduled Tribes into two. Keeping in view the
geographical and cultural differences between the Scheduled Castes and Scheduled Tribes and their problems,
it established a separate Commission for Scheduled Tribes. It is worthwhile to note that in 1999 the new
ministry for tribal affairs had been created.

New Commission for the Scheduled Tribes-

The new Commission for Scheduled Tribes would consist of a Chairperson, Vice Chairperson and three other
members. By the Amendment Act of 2003 a new Article, i.e., Article 338-A has been inserted in the
Constitution. This Article defines the duties and powers of the Commission for Scheduled Tribes.

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It shall consist of a Chairperson, Vice-Chairperson, and 3 other members to be appointed by the President of
India by warrant under his hand and seal.
Powers and functions of the Commission are almost identical to that of the National Commission for
Scheduled Castes referred to earlier.
It needs to be noted that consequent to setting up of a separate Commission for Scheduled Tribes, Commission
for Scheduled Castes is now renamed as ‘National Commission for Scheduled Castes’ and all references to
‘Scheduled Tribes’ in Article 338 has since been omitted.
The Commission has been assigned the following duties:
a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes
under the Constitution or under any other law and to evaluate the working of such safeguards;
b) to inquire into specific complaints with respect to the deprivation of these rights and safeguards;
c) to participate and advise on the planning process of socio-economic development of the Scheduled
Tribes and to evaluate the progress;
d) to present reports upon the working of these safeguards and make recommendations as to the measures
that should be taken for the effective implementation of those safeguards and other measures; and
e) to discharge such other necessary functions in relation to the protection, welfare, development and
advancement of the Scheduled Tribes.

In order to make the Commission effective following powers have been conferred upon the Commission:
g) to summon and enforce the attendance of any person from any part of India and examine him on oath;
h) to require the discovery and production of any relevant document;
i) to receive evidence on affidavits;
j) to requisite any public record or copy thereof from any Court or office;
k) to issue Commissions for the examination of witnesses and documents and take any other necessary
steps.

Besides the above, it has been made mandatory for Union and State Governments to consult the Commission
on all major policy matters affecting Scheduled Tribes.
As regards the National Commission for the Scheduled Castes, it is provided that it would consist of a
Chairperson, Vice-Chairperson and three other members.

FAQ-

1. Current Chairman, National Commission for Scheduled Caste- Shri Vijay Sampla
2. Current Chairman, National Commission for Scheduled Tribe- Shri Harsh Chouhan
3. Current Chairman, Rajasthan Commission for Scheduled Caste- Shri Khiladi Lal Bairwa

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Module- 7

National Commission for Women in India

Article 14 of the Constitution of India proclaims the principles of equality before law by providing that the
State shall not deny to any person equality before the law or the equal protection of the laws within the territory
of India. Article 15 which deals with prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth also provides in its clause (3) that nothing in this article shall prevent the State from making any
special provision for women and children.
Besides this, Article 39 which lays down certain principles to be followed by the State provides:
The State shall, in particular direct its policy towards securing:
a) that the citizens, men and women equally, have the right to an adequate means of livelihood;
b) that there is equal pay for equal work for both men and women;
c) that the health and strength of workers, men and women, and the tender age of children are not abused
and the citizens are not forced by economic necessity to enter avocations unsuited to their age or
strength.
The framers of the Constitution were well aware that women in this country were not enjoying rights equal to
those of men. That is why, they incorporated the abovementioned provisions in the Constitution. But these
provisions were far from satisfactory and failed to bring about the desired results. Probably being inspired by
the letter and spirit of aforesaid constitutional provisions, and for remedying the existing situation of women
so as to improve the condition of women, the Parliament enacted the National Commission for Women Act,
1990) (No. 20 of 1990) “to constitute a National Commission for Women and to provide for matters connected
therewith or incidental thereto.”

Constitution of the Commission-

The Commission consists of the following:
a) a chairperson, committed to the cause of women, to be nominated by the Central Government;
b) five persons to be nominated by the Central Government from amongst persons of ability, integrity
and standing who have had experience in law or legislation, trade unionism, management of an
industry or organization committed to increase the employment potential of women, women's
voluntary organizations, (including women activists), administration, economic development, health,
education or social welfare:
Provided that at least one Member each shall be from amongst persons belonging to the Scheduled
Castes and Scheduled Tribes respectively.
c) a Member-Secretary to be nominated by the Central Government, who shall be:
i. an expert in the field of management, organizational structure or sociological movement; or

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ii. an officer who is a Member of a Civil Service of the Union or an all-India service or holds a
civil post under the Union with appropriate experience.

Term of Office-
The Chairperson and every Member shall hold office for such period not exceeding three years, as may be
specified by the Central Government in this behalf.
Committees of the Commission-
The Commission may appoint such Committees as be necessary for dealing with special issues as may be
taken by the Commission from time to time.
Functions of the Commission-
The Commission shall perform all or any of the following functions, namely:
a) investigate and examine all matters relating to the safeguards provided for women under the
Constitution and other laws;
b) present to the Central Government, annually and at such other times as the Commission may deem fit,
report upon the working of those safeguards;
c) make in such reports recommendations for the effective implementation of those safeguards for
improving the conditions of the women by the Union or any State;
d) review, from time to time, the existing provisions of the Constitution and other laws affecting women
and recommend amendments thereto so as to suggest remedial legislative measures to meet any
lacunae, inadequacies or shortcomings in such legislation;
e) take up the cases of violation of the provisions of the Constitution and of other laws relating to women
with the appropriate authorities;
f) look into complaints and take suo motu notice of the matters relating to:
i. deprivation of women's rights;
ii. non-implementation of laws enacted to provide protection to women and also to achieve the
objective of equality and development;
iii. non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships
and ensuring welfare and providing relief to women,
and take up issues arising out of such matters with appropriate authorities;
g) call for special studies or investigations into specific problems or situations arising out of
discrimination and atrocities against women and identify the constrains so as to recommend strategies
for their removal;
h) undertake promotional and educational research so as to suggest ways of ensuring due representation
of women in all spheres and identify factors responsible for impeding their advancement, such as lack

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of access to housing and basic services inadequate support services and technologies for reducing
drudgery and occupational health hazards and for increasing their productivity;
i) participate and advise on the planning process of socio-economic development of women;
j) evaluate the progress of the development of women under the Union and any State;
k) inspect or cause to be inspected a jail, remand home, women's institution or other place of custody
where women are kept as prisoners or otherwise, and take up with the concerned authorities for
remedial action, if found necessary;
l) fund litigation, involving issues affecting a large body of women;
m) make periodical reports to the Government on any matter pertaining to women and in particular various
difficulties under which women toil;
n) any other matter which may be referred to it by the Central Government.
These functions can be performed by the Commission when it is equipped with appropriate powers. That is
why the Act provides that the Central Government shall cause all the reports referred to in clause (b) of sub-
section (1) of Section 10 to be laid before each House of the Parliament alongwith a Memorandum explaining
the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the
non-acceptance, if any, of any such recommendation.
In case of reports relating to any State such reports shall be laid before the Legislature of the State alongwith
a memorandum explaining the action taken or proposed to be taken in the recommendations and the reasons
for the non-acceptance if any of such recommendation.
Further, the Commission shall, while investigating any matter referred to in clause (a) or sub-clause (i) of
clause (f) of sub-section (1) of Section 10, have all the powers of a Civil Court trying a suit, and, in particular,
in respect of the following matters, namely:
a) summoning and enforcing the attendance of any person from any part of India and examining him on
oath;
b) requiring the discovery and production of any document;
c) receiving evidence on affidavits;
d) requisitioning any public record or copy therefrom any court or office;
e) issuing commission for the examination of witnesses and documents: and
f) any other matter which may be prescribed.
The Act also provides that Chairperson, Members and staff of the Commission shall be deemed to be public
servants within the meaning of Section 21 of Indian Penal Code (45 of 1860),
Besides this, it shall be obligatory for the Central Government to consult the Commission in all major policy
matters affecting women.

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National Commission for Child Rights in India, 2005

The Act aims at "to provide for the constitution of a National Commission and State Commissions for
Protection of Child Rights and Children's Courts for providing speedy trial of offences against children or of
violation of child rights and for matters connected therewith or incidental thereto."
This Act is the result of policies adopted by the Government of India towards child welfare and protection as
also standards prescribed by the Convention on the Rights of the Child (CRC) and other relevant international
instruments.
'Child rights' under the Act includes the children's rights adopted in the United Nations Convention on the
Rights of the Child, 1989.
The Commission (the National Commission for Protection of Child Rights), shall consist of seven persons
including a Chairperson. Of these two shall be women and constituted in accordance with Section 5 of the
Act. Functions of the Commission are embodied in Section 13 of the Act and includes to "examine and review
the safeguards provided by or under any law for the time being in force for the protection of child rights and
recommend measures for their effective implementation."
In Chapter IV, the Act also provides for the Constitution of State Commissions for Protection of Child Rights
consisting of seven members including a chairperson.
A distinguishing feature of the Act is that it provides for Children's Courts for the purpose of speedy trial of
offences against children or of violation of child rights vide Chapter V, sections 25 and 26.
To ensure protection of the rights of children, the other initiative of the Government of India is the adoption
of a National Charter for Children, 2003 Apart from provisions on child labour that exist in the Acts of
Parliament there is National Policy on Child Labour (NCL) announced by the Union Ministry of Labour in
August, 1987. It does three tier action plans which includes: legislative action, action on development
programmes means for the benefit of the child labour and project-based action plan.
The Ministry of Labour constituted the National Authority for Elimination of Child Labour (NAECL) on
September 26, 1994 with the avowed purpose of withdrawing through a suitable working mechanism, children
engaged in hazardous occupation and to rehabilitate them through special schools. NAECL is headed by the
Union Minister for Labour as its Chairman. According to the Annual Report of the Ministry of Labour for
1999-2000, the objective of the NAECL is: "to secure convergence of services for providing education, health
and other inputs to children taken out of schools in a cost-effective manner by pooling the resources of various
Ministries."
The Ministry of Labour set up in 1993 the National Resource Centre on Child Labour (NRCCL) at the National
Labour Institute, NOIDA, with the objective of creating a data bank on child labour and assisting the Central
and State Government to develop schemes and programmes for elimination of Child Labour.
Now there is a greater awareness about child rights in India. A global campaign that mobilized people from
all walks of life around ten critical issues that affect children's lives, was supported enthusiastically by Indians.
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Of the ten action points relating to children an enthusiastic response came to the call to educate every child.
These ten action points are: Leave No Child Out; Put Children First Care for Every Child; Fight HIV/AIDS;
Stop Harming and Exploiting Children; Listen to Children; Educate Every Child; Protect Children from War,
Protect the Earth for Children; Fight Poverty and Invest in Children.

Judicial Approach to Children's Right

Let us first take child labour. Courts have been examining child labour issues again and again. In Peoples
Union for Democratic Rights v. Union of India, the Supreme Court held that in the absence of appropriate
legislation, provisions of Article 14 of the Constitution of India must operate proprio vigore (by its own force)
and therefore, notwithstanding the absence of specification of construction industry in the Schedule to the
Employment of Children Act, 1938, no child below the age of 14 years of age can be employed in construction
industry which, in the opinion of the Court, is undoubtedly hazardous work. In case of violation of fundamental
rights enforceable against private citizens such as Articles 17, 23 it is the constitutional obligation of the state
to take necessary steps for the purpose of interdicting such violation and ensuring observance of fundamental
right by the private individual who is transgressing it.
The decision in above case has been reiterated in Labourers, Salal Hydro Electric Project v. State of J. & K.,
In this case the Supreme Court held that employment of children below 14 years of age in construction work
violates Article 24.
In M.C. Mehta v. State of Tamil Nadu, the Supreme Court of India was called upon to pronounce upon child
labour in match factories of Shivkashi in Kamraj District of Tamil Nadu State. The Court held that
manufacturing process of matches and firework is hazardous one and, therefore, the employment of children
within the match factories directly connected with manufacturing process upto final production of match sticks
or fireworks should at all not be permitted. However, the Court allowed children to be employed in the process
of packing which should be done in an area away from the place of manufacture to avoid exposure to accident.

Again in M.C. Mehta v. State of Tamil Nadu, the Supreme Court of India noted that the menace of child labour
was rampant. The Court said the stark reality is that in our country like many others, children are exploited
lot. Child labour is a big problem and has remained intractable even after fifty years of independence.
Therefore, it issued wide range of directions in the context of employment and exploitation of children in
Shivkashi, prohibiting employment of children below the age of 14 and making arrangements for their
education by creating a fund and providing employment to the parents or able-bodied adults in the family.
These directions were reiterated in Bandhua Mukti Morcha v. Union of India.
As regards education of children a very important decision of the Supreme Court of India is that of Unni
Krishnan v. State of A.P., In this case the Court held that a child upto the age of 14 years has a fundamental
right to education. Right to education is implicit in and flows from the right to life guaranteed under Article

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21. Right to life includes right to education. For a right to be a fundamental one it is not necessary that the
right in question is expressly stated as a fundamental right and in Part III of the Constitution. Now rights can
be read into and inferred from rights stated in Part III.
Another case relating to welfare of children is that of Lakshmi Kant Pandey v. Union of India, in this case the
attention of the Supreme Court of India was drawn to widespread malpractices indulged in by social
organizations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign
parents. The Court laid down normative and procedural safeguards to be followed in connection with inter-
country adoption.
In Sheela Barse v. Union of India, the Supreme Court of India directed the Central Government to pay the
petitioner, a social worker by way of expenses rupees ten thousand for making a study of the condition of
children below the age of 18 years in various prisons in India. The Court also directed that various laws relating
to children passed by states should be strictly enforced and that Centre should enact a legislation on this issue.

Gaurav Jain v. Union of India, was a social action litigation wherein submission was that provision should be
made for separate schools with vocational training facilities and separate hostels for children of prostitutes.
The Supreme Court did not accept the submission by observing that segregating prostitute children by locating
separate schools and providing separate hostels would not be in the interest of such children. However, it is in
the interest of such children and of society at large that the children of prostitutes should be segregated from
their mothers and be allowed to mingle with others and become part of the society.

Evaluation
Despite a number of declarations, conventions, and other activities both at international and national level
child welfare is a serious problem the world over and especially in developing countries in general and India
in particular. However, awareness about child protection and welfare is growing day by day both at
international and national level as is evident from earlier discussion on this topic. We can really hope that the
day has come when child will get his due in Indian society provided more sincere efforts are made to streamline
the implementing agencies and public opinion is geared in favor of betterment and welfare of child.

FAQ-
1. Current Chairperson, National Commission for Women- Ms. Rekha Sharma
2. Current Chairperson, Rajasthan State Commission for Women- Ms. Rehana Rayaz Chisti
3. Current Chairman, National Commission for Protection of Child Rights- Mr. Priyank Kanoongo
4. Current Chairman, Rajasthan State Commission for Protection of Child Rights- Mrs. Sangeeta Beniwal

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