HUMAN RIGHTS

1. Define human rights. Explain the characteristics and kind of human rights/ Explain
the essential characteristics of human rights.
• Human beings are born equal in dignity and rights.
• These are moral claims which are inalienable and inherent in all individuals by virtue of their
humanity alone, irrespective of caste, colour, creed, and place of birth, sex, cultural
difference or any other consideration.
• These claims are articulated and formulated in what is today known as human rights.
• Human rights are sometimes referred to as fundamental rights, basic rights, inherent rights,
natural rights and birth rights.
• Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every
individual must have against the State, or other public authority, by virtue of his being a
‘member of human family’ irrespective of any consideration.
• The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as “rights
derived from the inherent dignity of the human person.” Human rights when they are
guaranteed by a written constitution are known as “Fundamental Rights” because a written
constitution is the fundamental law of the state.
• According Section 2(1) (d) the protection of Human rights Act 1993, human rights “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”.
• characteristics of human rights:
1. Human Rights are Inalienable –
✓ Human rights are conferred on an individual due to the very nature of his
existence.
✓ They are inherent in all individuals irrespective of their caste, creed, religion, sex
and nationality.
✓ Human rights are conferred to an individual even after his death.

2. Human Rights are Essential and Necessary –

✓ In the absence of human rights, the moral, physical, social and spiritual welfare
of an individual is impossible.
✓ Human rights are also essential as they provide suitable conditions for material
and moral upliftment of the people.
3. Human Rights are in connection with human dignity –
✓ To treat another individual with dignity irrespective of the fact that the person is
a male or female, rich or poor etc. is concerned with human dignity.
✓ For eg. In 1993, India has enacted a law that forbids the practice of carrying
human excreta. This law is called Employment of Manual Scavengers and Dry
Latrines (Prohibition) Act.
4. Human Rights are Irrevocable:
✓ Human rights are irrevocable.
✓ They cannot be taken away by any power or authority because these rights
originate with the social nature of man in the society of human beings and they
belong to a person simply because he is a human being.
✓ As such human rights have similarities to moral rights.
5. Human Rights are Necessary for the fulfillment of purpose of life:
 ✓ Human life has a purpose. The term “human right” is applied to those conditions
which are essential for the fulfillment of this purpose.
✓ No government has the power to curtail or take away the rights which are
sacrosanct, inviolable and immutable.
6. Human Rights are Universal –
✓ Human rights are not a monopoly of any privileged class of people.
✓ Human rights are universal in nature, without consideration and without
exception.
✓ The values such as divinity, dignity and equality which form the basis of these
rights are inherent in human nature.
7. Human Rights are never absolute –
✓ Man is a social animal and he lives in a civic society, which always put certain
restrictions on the enjoyment of his rights and freedoms.
✓ Human rights as such are those limited powers or claims, which are contributory
to the common good and which are recognized and guaranteed by the State,
through its laws to the individuals.
✓ As such each right has certain limitations.
8. Human Rights are Dynamic –
✓ Human rights are not static, they are dynamic.
✓ Human rights go on expanding with socio-eco-cultural and political
developments within the State.
✓ Judges have to interpret laws in such ways as are in tune with the changed social
values.
✓ For eg. The right to be cared for in sickness has now been extended to include
free medical treatment in public hospitals under the Public Health Scheme, free
medical examinations in schools, and the provisions for especially equipped
schools for the physically handicapped.
9. Rights as limits to state power –
✓ Human rights imply that every individual has legitimate claims upon his or her
society for certain freedom and benefits.
✓ So human rights limit the state’s power.
✓ These may be in the form of negative restrictions, on the powers of the State,
from violating the inalienable freedoms the individuals, or in the nature of
demands on the State, i.e. positive obligations of the State.
✓ For eg. Six freedoms that are enumerated under the right to liberty forbid the
State from interfering with the individual.

Theoretical classification of human rights.

1. Civil and political rights

✓ The rights that protect the life and personal liberty of a person are called civil
rights. They are necessary to maintain the dignity of a person.
✓ These include rights like the right to life, liberty and security of a person, the
right to privacy, the right to own property, freedom of thought, religion and
movement.
✓ Political rights are such rights that allow a person to participate in governmental
activities.
 ✓ These include rights like the right to vote and the right to be elected. The nature
of such rights is different, but they are interrelated to each other.
✓ Both these rights are covered in the International Covenant on Civil and Political
Rights.
✓ These rights are also called first-generation rights and are derived from 17th and
18th-century theories related to the American, English, and French Revolutions.
2. Fundamental rights
✓ Some human rights are guaranteed to the citizens of the state through
constitutional provisions and cannot be infringed upon at any cost, even by the
state authorities.
✓ These are termed as fundamental rights. The expression
‘fundamental rights’ is stated in declarations and constitutional provisions of
✓ many states. The Virginia Declaration of 1776 states that men are free and
✓ independent and have certain inherent rights. The French Declaration of Rights
of Man and Citizen, 1789 provides that men are born free and have equal rights.
✓ The Indian Constitution guarantees six fundamental rights to the citizens of the
country. These are:
• Right to Equality (Article14)
• Right to freedom (Article19-22)
• Right to religion (Article 25)
• Cultural and educational rights (Article 29–30)
• Right against exploitation (Article 23– 24)
• Right to constitutional remedies (Article 32)

2. Natural rights
✓ The history of human rights is rooted in ancient times and the philosophical
concepts of natural law and thus, also termed natural rights.
✓ Plato was one of the first writers to give a standard ethical code of conduct.
✓ Aristotle opined that rights change as per the different kinds of circumstances faced
by society from time to time.
✓ Since human rights are universally applicable to every person in the world it is
similar to natural rights.
✓ Natural rights have been derived from natural law which opines that law must reflect
moral reasoning and must be related with morals imbibed in a person or set by the
society.
✓ On the other hand, positivism states that human rights are a result of enactments of
statutes and orders by law which comes with various sanctions attached to it.
3. Moral rights
✓ Human rights that determine the spiritual and moral conduct of a person are
termed moral rights. They are primarily contained in moral rights as they
highlight various moral values that cannot be highlighted by any set of
institutional rights. They promote moral values like respect for everyone,
brotherhood, secularism, protection of life, peace in society, etc. Human rights
also put moral obligations on the state and people not to violate and infringe on
the rights of other people. If done so, it will be punished as per the provisions of
the set statute.
 4. Legal rights
The rights that are recognised by the legal system of a country are called legal rights. The
two essential elements of these rights are:
• The holder of the right, and
• A person bound by duty. Rights and duties are correlated to each other.
A person cannot have a right without any corresponding duty. A person having a right
also has a duty not to violate another person’s rights. Human rights are given to every
individual irrespective of any considerations, and the state has the corresponding duty to
protect the rights of its citizens

5. Economic rights, cultural Rights and social rights

These rights are also called freedoms and guarantee a person the minimum
necessities of life. These are also included in the International Covenant on
Economic, Social and Cultural Rights. These form a part of positive rights as
the state is required to frame policies and provisions to implement such rights.
These rights are based on the concept of social equality and are secondgeneration rights.
These rights include the right to work, social security,
physical and mental health, and education. The various economic, cultural, and
social rights recognised by the Universal Declaration of Human Rights are as
follows:
• Right to social security (Article 22)
• Right to work and choice of employment (Article 23)
• Right to rest (Article 24)
• Right to standard living and health (Article 25)
• Right to education (Article 26)
• Freedom to participate in cultural life (Article 27)
• Right to social and international order (Article 28)

2. Evaluate the provisions of African Convention on protection of human rights.

✓ Charter on Human and People's Rights, also popularly known as Banjul Charter is
a regional treaty, was adopted on June 27, 1981 and entered into force in
October 1986.
✓ A Charter is the only treaty, which does not contain derogation clause.
✓ The African Charter on Human and People's Rights includes preamble, 3 parts, 4
chapters, and 63 articles.
✓ The Charter followed the footsteps of the European and Inter- American systems
by creating a regional human rights system for Africa.
✓ The preamble commits to the elimination of Zionism, which it compares with
colonialism and apartheid, caused South Africa to qualify its 1996 accession with
the reservation that the Charter fall in line with the UN's resolutions "regarding
the characterization of Zionism."
✓ Human Rights and Peoples Rights:
✓ Civil and Political Rights The Charter recognizes most of what are regarded
universally accepted civil and political rights. The civil and political rights
recognized in the Charter include the right to freedom from discrimination
(Article 2 and 18(3)), equality (Article 3), life and personal integrity (Article 4),
dignity (Article 5), freedom from slavery (Article 5), freedom from cruel,
 inhuman or degrading treatment or punishment (Article 5), rights to due process
concerning arrest and detention (Article 6), the right to a fair trial (Article 7 and
25), freedom of religion (Article 8), freedom of information and expression
(Article 9), freedom of association (Article 10), freedom of assembly (Article 11),
freedom of movement (Article 12), freedom to political participation (Article 13),
the right to property (Article 14), and the right to resist (Article 20).
✓ Some human rights scholars however consider the Charter's coverage of other
civil and political rights to be inadequate. For example, the right to privacy or a
right against forced or compulsory labour are not explicitly recognised. The
provisions concerning fair trial and political participation are considered
incomplete by international standards.
✓ Economic, Social and Cultural Rights: The Charter also recognises certain
economic, social and cultural rights, and overall the Charter is considered to
place considerable emphasis on these rights. The Charter recognises right to
work (Article 15), the right to health (Article 16), and the right to education
(Article 17).
✓ Peoples' Rights and Group Rights In addition to recognising the individual rights
mentioned above the Charter also recognises collective or group rights, or
peoples' rights and third-generation human rights. As such the Charter
recognises group rights to a degree not matched by the European or Inter-
American regional human rights instruments. The Charter awards the family
protection by the state (Article 18), while "peoples" have the right to equality
(Article 19), the right to selfdetermination (Article 20), to freely dispose of their
wealth and natural resources (Article 21), the right to development (Article 22),
the right to peace and security (Article 23) and "a generally satisfactory
environment" (Article 24).
✓ Duties:
The Charter not only awards rights to individuals and peoples, but also includes
duties incumbent upon them. These duties are contained in Articles 27 to 29 and
are as follows:
• Duties towards family and society, the state and other legally recognised
communities and international community.
• Each individual to exercise the rights and freedoms with due regard to the
rights of others, collective security, morality and common interest.
• Duty to respect and consider his fellow beings without discrimination and
to maintain relations aimed at promoting safeguarding and reinforcing
mutual respect and tolerance.
• The duty to preserve the harmonious development of the family.
• To serve the national community by placing both physical and intellectual
abilities at its service.
• Not to compromise the security of the State.
• To preserve and strengthen social and national solidarity.
• To preserve and strengthen national independence and the territorial
integrity of one's country and to contribute to its defence.
• To work to the best of one's abilities and competence and to pay taxes in
the interest of society.
• To preserve and strengthen positive African cultural values and in general
to contribute to the promotion of the moral well-being of society.
 • To contribute to the best of one's abilities to the promotion and
achievement of African unity.
✓ Establishment, organizational structure, election and tenure of the
members African Commission on Human and People's Rights
✓ Chapter 1 of part to provide certain measures in order to safeguard the rights
that are to be bestowed upon the people by creation or establishment of a body.
i.e., African Commission on human and people's rights.
✓ Article 30 has actually created and organ to foresee the implementation if the
charter in letter and spirit amongst members to the charter.
✓ Article 31 lays down the details for formality bi structure organization of the
commission.
✓ it provides that the members will be from African country having
high standards relating to human rights and special emphasis is to be given to
persons with prior experience in the field of law.
✓ It will have 11 members having the necessary eligibility as provided under clause 1
article 31.
✓ Under Article 32, 33 and 34 provisions relating to providing an order to
maintain balance in the representation members from different states, the
membership in the commission is restricted to not more than one person from
one state.

3. Explain the composition, powers and functions of National human rights commission.
✓ To address the wide range of human rights violations, there’s a pressing need for an
independent body to govern them in the country.
✓ In the early 1990s, this need for bolstering human rights institutions was recognized
by the international community.
✓ Subsequently, on October 12, 1993, India founded the National Human Rights
Commission, a statutory and non-constitutional body for the promotion and
preservation of human rights.
✓ The National Human Rights Commission of India has been in existence for more than
28 years now.
✓ Though their functions and powers are hampered by several additional restrictions,
they play a considerable role in protecting against human rights violations.
✓ Establishment of human rights commissions
✓ In 1990, the Parliament of India established certain similar commissions, including
the National Commission for Scheduled Castes and Tribes, the National Commission
for Women, and the National Commission for Minorities,1992.
✓ Eventually, the Indian government recognised the need to create an independent
agency to promote and safeguard human rights
✓ The Commission was established on October 12, 1993, under the Protection of
Human Rights Act (1993).
✓ In addition, eighteen Indian states have established their own human rights
commissions to address abuses occurring inside their borders.
✓ The Act covers a wide range of topics, including its purpose and powers, as well as its
composition and other relevant issues.
✓ While the National Human Rights Commission guarantees specific rights to
individuals, the State Human Rights Commission directs the state to deliver certain
economic and social rights to its citizens.
✓ The term “fundamental” denotes that these rights are inherent in all human beings
and that they are fundamental and necessary for each individual.
✓ Composition of the National Human Rights Commission
✓ Chapter II of the Protection of Human Rights Act deals with the constitution of the
Commission.
✓ According to Section 3, the Commission will comprise of
• A chairperson who has served as the Chief Justice of the Supreme Court;
• One member who is or has served as a Supreme Court Judge;
• One member who is or has served as the Chief Justice of the High Court;
• Two members to be appointed from among those with knowledge of or practical
experience in human rights issues.
• Ex-officio members of the Commission include the Chairpersons of the National
Commission for Minorities, the National Commission for Scheduled Castes and
Scheduled Tribes, and the National Commission for Women.
• A Secretary-General will serve as the Chief Executive Officer of the Commission and
will exercise the powers and perform the tasks that the Commission may assign to
him. Divisions of the National Human Rights Commission
✓ There are six divisions in the NHRC.
✓ These have been assigned with specialised tasks, and they collaborate and
coordinate with each other for the same.
✓ They are The Administrative Division, The Law Division, The Training Division, The
Policy, Research and Project Division , The Investigation Division, The Information
and Public Relations Division.
✓ Powers of NHRC:
(1) The Commission shall, while inquiring into complaints under this Act, have all the
powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in
particular in respect of the following matters, namely :
(a) Summoning and enforcing the attendance of witnesses and examining them on
oath;
(b) Discovery and production of any document;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public record or copy thereof from any court or office;
(e) Issuing commissions for the examination of witnesses or documents;
(f) Any other matter which may be prescribed.
(2) The Commission shall have power to require any person, subject to any privilege
which may be claimed by that person under any law for the time being in force, to
furnish information on such points or matters as, in the opinion of the Commission,
may be useful for, or relevant to, the subject matter of the inquiry and any person so
required shall be deemed to be legally bound to furnish such information within the
meaning of section 176 and section 177 of the Indian Penal Code.
(3) The Commission or any other officer, not below the rank of a Gazetted Officer,
specially authorised in this behalf by the Commission may enter any building or
place where the Commission has reason to believe that any document relating to the
subject matter of the inquiry may be found, and may seize any such document or
take extracts or copies there from subject to the provisions of section 100 of the
Code of Criminal Procedure, 1973, in so far as it may be applicable.
(4) The Commission shall be deemed to be a civil court and when any offence as is
described in section 175, section 178, section 179, section 180 or section 228 of the
 Indian Penal Code is committed in the view or presence of the Commission, the
Commission may, after recording the facts constituting the offence and the
statement of the accused as provided for in the Code of Criminal Procedure, 1973,
forward the case to a Magistrate having jurisdiction to try the same and the
Magistrate to whom any such case is forwarded shall proceed to hear the complaint
against the accused as if the case has been forwarded to him under section 346 of
the Code of Criminal Procedure, 1973.
(5) Every proceeding before the Commission shall be deemed to be a judicial
proceeding within the meaning of sections 193 and 228, and for the purposes of
section 196, of the Indian Penal Code, and the Commission shall be deemed to be a
civil court for all the purposes of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973.
(6) Where the Commission considers it necessary or expedient so to do, it may, by
order, transfer any complaint filed or pending before it to the State Commission of
the State from which the complaint arises, for disposal in accordance with the
provisions of this Act; Provided that no such complaint shall be transferred unless
the same is one respecting which the State Commission has jurisdiction to entertain
the same.
(7) Every complaint transferred under sub-section (6) shall be dealt with and
disposed of by the State Commission as if it were a complaint initially filed before it.
✓ Functions of the National Human Rights Commission
• Investigate human rights violations or negligence by a public official, either
proactive or reactively.
• Visiting a jail or any other center under the jurisdiction of the state government
where people have been apprehended or held for treatment, reformation, or
protection and rehabilitation in order to evaluate the prisoners’ living conditions and
give suggestions.
• Appraisal of the safeguards provided by or under the Constitution or any current
legislation for the protection and advancement of human rights, as well as
recommendations for their successful implementation.
• Analyse the causes that hinder the enjoyment of human rights, including acts of
terrorism, and provide recommendations for appropriate remedies. Establish and
foster research projects at colleges, universities, and other professional fields.
• Evaluation of the safeguarding of human rights protection and safety provided by
or under any representation;
• The conditions or challenges that limit the implementation of human rights in the
country are evaluated and reviewed on a regular basis.
• Encourage human rights education among all parts of society, as well as knowledge
of the defence mechanisms available to safeguard these rights, through publications,
the media, conferences, workshops, seminars, and other activities.
• Any view, approval, recommendation, or report on any issue involving the
promotion and preservation of human rights should be directed to the government.
• Prepare monthly reports on the actual position of human rights in general, as well
as other particular issues in the country;
• Assistance to the government on situations involving human rights violations and
strategies for preventing them;
 • Collaborate with the United Nations and other UN-affiliated organisations, as well
as regional and national institutions in other countries with expertise in human
rights protection and promotion;
• Participation and assistance in developing and implementing human rights
education and awareness programmes for teaching and research, as well as
participation in their implementation in schools, colleges, universities, and other
professional fields;
• Increase public knowledge of human rights and attempt to combat all types of
prejudice by raising public awareness, particularly via correct information and
awakening human rights education, and by utilising all media outlets; • Perform any
additional tasks that it deems beneficial to the promotion and protection of human
rights.
• To adjudicate in court proceedings involving human rights problems with the
permission of the court.

4. Examine the provisions of international covenant on economic, social and cultural rights.
✓ Economic, social, and cultural rights are the freedoms, privileges, and entitlements
that individuals and communities require to live a life of dignity.
✓ These human rights include the rights to food, housing, health, education, cultural
identity, and more.
✓ The extent to which individuals can claim legal protection of their economic, social,
and cultural rights (ESCR) depends on which treaties have been ratified by their
governments, given that the protections for ESCR vary significantly among the
universal and regional human rights instruments.
✓ However, the International Covenant on Economic, Social and Cultural Rights
(ICESCR) is the most comprehensive international treaty addressing this area of
human rights law, and is also the most widely-applicable.
✓ As of May 2018, 168 of the 193 United Nations Member States have ratified the
ICESCR, implementation of which is monitored by the UN Committee on Economic,
Social and Cultural Rights (CESCR).
✓ The International Covenant on Economic, Social and Cultural Rights (ICESCR) obliges
states parties to take as much action as their available resources allow to
progressively achieve the full realisation of the rights it guarantees (the principle of
progressive realisation).
✓ Besides preamble the International Covenant on Economic, Social and Cultural Rights
comprise of 31 Articles divided into five parts.
✓ The substantive economic, social and cultural rights recognized in this covenant The
ICESCR guarantees rights such as the following:
I. The Right to Self -Determination and the Right of Development:
Article 1 of the ICESCR states that “[a]ll peoples have the right of
selfdetermination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
development.” The right of self-determination has two components: external
and internal. “External self-determination” can be thought of as
international self-determination, because it refers to peoples’ right to
determine their political status and their “place in the international
community” based upon the principle of equal rights and freedom from
 colonialism, “alien subjugation, domination, and exploitation.” the right to
development is integral to the right of internal self-determination.
II. Economic Rights-
(i) Right to work freely chosen (Article 6);
(ii) Right to enjoyment of just and favourable conditions of work (Article
7);
(iii) Right to form trade unions and join the trade Union of choice (Article
8);
III. Social Rights-
(iv) Right to social security, including social insurance (Article 9);
(iv) Right relating to family, motherhood, childhood and young persons
to protection and assistance and the right of free consent to
marriage (Article 10);
(v) Right to adequate standard of living for himself and his family
including adequate food, clothing and housing, and to the
continuous improvement of living conditions (Article 11); (vii)
(vi) Right to the enjoyment of the highest attainable standard of physical
and mental health (Article 12);
IV. Cultural and educational Rights-
(viii) Right to education including compulsory and free primary education;
(ix) Undertaking to implement the principle of compulsory education free of
all within a reasonable number of years (Article 14)- States Parties to the
ICESCR must guarantee non-discrimination in the enjoyment of economic,
social and cultural rights and
(x) Right to: (a) take part in cultural life; (b) enjoy the benefits of scientific
progress and its applications; and (c) benefit from the protection of the
moral and material interests resulting from any scientific, literary or artistic
production of which he is the author (Article 15).
✓ The measures of implementation provided in this covenant are much weaker than
those provided in the Covenant on Civil and Political Rights.
✓ They comprise of mainly the reporting procedure.
✓ States Parties of the Covenant on Economic, Social and Cultural Rights have an
obligation to submit to the Secretary-General of the U.N. reports on the measures
which they have adopted and the progress made.
✓ The Secretary-General then transmits copies of reports to the Economic and Social
Council (ECOSOC) which in its turn may transmit the reports to the Human Rights
Council for study and general recommendations.
✓ As of 2013, International Covenant on Economic, Social and Cultural Rights, 1966 had
169 parties. Protocol to this Covenant had 40 parties as of 2013.
✓ The UN's Committee on Economic, Social and Cultural Rights is the monitoring body
responsible for scrutinising the implementation of the ICESCR by its states parties.
✓ The latter are required to submit periodic reports to the Committee on the measures
taken and progress made to ensure respect for the rights covered by the ICESCR.

5. State Human Rights Commission

✓ To address the wide range of human rights violations, there’s a pressing need for an
independent body to govern them in the country.
 ✓ In the early 1990s, this need for bolstering human rights institutions was recognized
by the international community.
✓ Subsequently, on October 12, 1993, India founded the National Human Rights
Commission, a statutory and non-constitutional body for the promotion and
preservation of human rights.
✓ Establishment of human rights commissions
In 1990, the Parliament of India established certain similar commissions,
including the National Commission for Scheduled Castes and Tribes,
the National Commission for Women, and the National Commission for
Minorities,1992. Eventually, the Indian government recognised the need to
create an independent agency to promote and safeguard human rights
The Commission was established on October 12, 1993, under the Protection of
Human Rights Act (1993). In addition, eighteen Indian states have established
their own human rights commissions to address abuses occurring inside their
borders. The Act covers a wide range of topics, including its purpose and
powers, as well as its composition and other relevant issues. While the National
Human Rights Commission guarantees specific rights to individuals, the State
Human Rights Commission directs the state to deliver certain economic and
social rights to its citizens. Section 3 uses the words "shall constitute”, it is
simply optional under Section 21(1) for the State to constitute a "State Human
Rights Commissions. Since most of the violations of human rights take place in
State territories, it should have been compulsory and mandatory for the States to
establish State Human Rights Commission.
✓ Composition of the State Human Rights Commission:
The Protection of Human Rights Act, 1993 mandates the establishment of a
state-level Human Rights Commission. A State Human Rights Commission can
investigate violations of human rights in matters covered under the Seventh
Schedule’s state list and concurrent lists under the Constitution. According to
the Human Rights (Amendment) Act, 2006, it has
• three members, one of whom is the chairperson. A former Chief Justice
of a High Court shall serve as chairperson.
• A sitting or retired judge of the High Court of the state or a District Judge
having at least seven years’ experience as a District Judge.
• A person with relevant expertise or knowledge in the field of human
rights.
✓ Appointment and removal of members of the State Human Rights
Commission
On the recommendations of a committee headed by the Chief Minister, the
Speaker of the Legislative Assembly, the Home Minister of the state, and the
Leader of the Opposition in the Legislative Assembly, the Governor of the state
chooses the chairperson and other members.
In the event that the state establishes a legislative council, the chairman and
leader of the opposition would also be members of the committee.
The chairperson and members serve for five years or until they reach the age of
70, whichever comes first. They are not eligible for any further employment
with the state government or the central government when their term ends.
However, subject to age restrictions, the chairman or a member of the
commission may serve another term. The members may only be dismissed by
the president, not the governor, for the same reasons as the NHRC.
✓ Functions of the State Human Rights Commission
• Investigate a complaint of human rights violation or negligence by a
public servant, suo moto, or on the basis of a petition brought to it by a
victim or any person acting on his behalf.
• With the consent of the court, intervene in any case involving any claim
of human rights violation.
• Visit any jail or other body under the administration of the State
Government where people are incarcerated to examine the inmates’ living
conditions and provide recommendations.
• Examine the protections for the protection of human rights established by
or under the constitution of any legislation now in force, and provide
recommendations for their effective implementation.
• Examine the reasons that obstruct the enjoyment of human rights,
including acts of terrorism, and provide recommendations for appropriate
remedies.
• Conduct and promote human rights research.
• Promote human rights literacy and understanding of the measures
available to defend these rights among diverse segments of society.
• Support non-governmental organisations and institutions that operate in
the field of human rights.
• Perform any other tasks it deems necessary for the advancement of
human rights.
✓ Jurisdiction of the State Commission.-
Sub-section (5) of Section 21 provides
that a State Commission may inquire into violation of human rights only in
respect of matters relatable to any of the Entries enumerated in List II and List
III in the Seventh Schedule to the Constitution. This is however subject to a
proviso that if any such matter is already being inquired into by he Commission
(i.e. NHRC) or any other Commission duly constituted under any law for the
time being in force, the State Commission shall not inquire into the said matter.
Powers of SHRC: Commission is vested with the power to regulate its own
procedure. It has all the powers of a civil court and its proceedings have a
judicial character. It may call for information or report from the state
government or any other authority subordinate to it. The Commission is not
empowered to inquire into any matter after the expiry of one year from the date
on which the act constituting violation of human rights is alleged to have been
committed. In other words, it can look into a matter within one year of its
occurrence. The Commission may take any of the following steps during or
upon the completion of an inquiry:
• It may recommend the state government or authority to make payment of
compensation or damages to the victim.
• It may recommend to the state government or authority the initiation of
proceedings for prosecution or any other action against the state government.
• It may recommend the state government or authority for the grant of
immediate interim relief to the victim.
• It may approach the Supreme Court or state high court for the necessary
direction, order or writs.
6. Article 21 of the constitution is a reservoir of human rights. Explain.?
✓ Human Rights are those minimal rights which every individual must have against the
State or other public authority by virtue of his being a 'member of the human
family', irrespective of any other consideration.
✓ The concept of human rights is as old as the ancient doctrine of 'natural rights'
founded on natural law, the expression 'human rights' is of recent origin, emerging
from (post-Second World War) international Charters and Conventions.
✓ Our country was one of the original signatories to the International Covenant on Civil
and Political Rights and therefore the framers of Indian Constitution were influenced
by the concept of human right and recognised as well as guaranteed most of the
human rights which were subsequently embodied in the International Covenant
1966.
✓ The Preamble of the Indian Constitution reflects the inspiring ideals with the specific
mention of "dignity of the individual".
✓ Fundamental Rights enshrined in Part III of the Constitution have emerged from the
doctrine of natural rights.
✓ Fundamental Rights are the modern name for what have been traditionally known as
Natural Rights
✓ RIGHT TO LIFE AND PERSONAL LIBERTY: Art. 21 of our Constitution guarantees right
to life and personal liberty.
✓ The Article runs as follows:- "No person shall be deprived of his life or personal
liberty except according to procedure established by law."
✓ The first draft to the Constituent Assembly of this Article appeared in the following
shape: "No person shall be deprived of his life or personal liberty without due
process of law, nor shall any person be denied equality before law within the
territories of the federation."
✓ The Drafting Committee headed by Dr. B. R. Ambedkar, however, substituted the
words "except according to procedure established by law" since the former is more
specific.
✓ WIDER IMPLICATIONS OF RIGHT TO LIFE:
✓ Our Apex Court has been expanding over the decades, the dimensions of Art 21 i. e.
Right to Life & Personal Liberty. In F. C. Mullin vs. The Administrator, Union Territory
of Delhi & others (1981 2 SCR 516) Justice Bhagwati observed: .Every act which
offends against or impairs human dignity would constitute deprivation protanto of
this right to life and it would have to be in accordance with reasonable, fair and just
procedures established by law which stands the test of other fundamental rights."
✓ The expression 'life' does not mean animal existence. Right to life guaranteed under
Art. 21 of the Constitution have certain positive aspects and as such subject to well-
organised limitation apart from obligation of the State not to deprive a person of his
life except in accordance with a valid law.
✓ Life in its expanded horizons today includes all that give meaning to a man's life,
including his tradition, culture and heritage, and protection of that heritage in its full
measure would certainly come within the encompass of an expanded concept of
Article 21 of the Constitution.
✓ In India, the Supreme Court has propounded the theory of 'emanation' has departed
from the traditional view that Part III of the Constitution provides an exhaustive list
of Fundamental Rights.
 ✓ The theory, basically means that even though right is not specifically mentioned in
Part III, it may still be regarded as a fundamental right if it can be regarded as an
integral part of a named fundamental right; in other words, "it 'emanates' from a
named fundamental right or its existence is 'necessary' in order to make the exercise
of a named fundamental right meaningful and effective”. (Maneka vs. Union of India,
A.I.R. 1978 S.C. 597, Para 77).
✓ Applying the 'emanation' theory, the Supreme Court has evolved the following
unenumerated rights as, Fundamental Rights:
o Kharak Singh vs. the State of UP and Others
The right to privacy is included in the right to life.
○ Sunil Batra vs. Delhi Administration
Protection to the convicted and accused person. In this case, the Supreme Court
held that fatal cuffs are unconstitutional for a convicted person because it is an
inhuman behaviour with the prisoners, and it is a violation of Article 21.
○ Prem Shankar Shukla vs. Delhi Administration
Hon’ble Supreme court held that handcuffing is also unconstitutional because it
is violative of Article 21.
○ Mohini Jain vs. the State of Karnataka, 1992 SC
Supreme Court held that the right to life includes the right to education also.
○ Unni Krishnan vs. the State of Andhra Pradesh, 1993 SC
Supreme court held the right to education is a fundamental right, as decided in
Mohini Jain Case. But in such case, Hon’ble Supreme Court fixed the age that it
is a fundamental right to the children for the age of 6-14 years.
In the light of two above judgements, the parliament enacted the Free and
Compulsory Education Act, 2009.
○ Satwant Singh vs. APO Delhi
In this case, Hon’ble Supreme Court held that right to go abroad is a
fundamental right under Article 21.
○ Subhash Kumar vs. the State of Bihar
The right to get the pollution-free air is also a fundamental right under Article
21.
○ Olega Tellis vs. Bombay Municipal Corporation (B.M.C)
In this case, the Supreme Court held that the right to livelihood is included in
Article 21.
○ Lachma Devi vs. Attorney General of India
Supreme Court held that the execution of a death sentence at a public place is
unconstitutional, and it is violative of Article 21.
○ Hussainara Khatoon vs. the State of Bihar
Supreme Court held that equal justice and free legal aid of an accused person is
a fundamental right under Article 21.
○ Rudal Shah vs. the State of Bihar
In this case, the Supreme Court held that to get compensation in case of illegal
imprisonment is a fundamental right of a prisoner.
○ Chandrima Das vs. Railway Chairman Board
The compensation to the rape victim is also a fundamental right under Article
21.
o In the case of Mr. X. vs. Hospital Z, the issue in consideration was whether the
disclosure made by a doctor to the fiance of a person suffering from HIV
 positive, amounts to infringement under Article 21? The Court herein opined
that the lady proposing to marry such a person is entitled to all human rights,
which are available to any human being and the right to be told that person is
suffering from a deadly disease which is sexually communicable, is her right to
life guaranteed under Article 21.
o Chameli v State of UP, the court also held that Food, shelter and clothing are
minimal human rights, and it is a facet of conjoined meaning of right to life
under Article 21.

7. Explain the right of prisoners guaranteed under the constitution of India.

✓ According to Justice Durga Das Basu, "Human rights are those minimal rights, which
every individual must have against the State, or other public authority, by virtue of
his being a 'member of human family' irrespective of any consideration
✓ The word "prisoner" means any person for the time being in a prison as a result of
any requirement imposed by a court or otherwise that he be detained in legal
custody.
✓ Prisoners are entitled to almost all the human rights as a normal human being in
India but these rights are subjected to the reasonable restrictions as prescribed by
law.
✓ The Indian State is a signatory to various international instruments of human rights,
like the Universal Declaration of Human Rights and International Covenant on Civil
and Political Rights etc. and these international instruments guaranteed human
rights to everyone including prisoner.
✓ The Constitution of India does not expressly provide the provisions related to the
rights of prisoners but in the case of T.V. Vatheeswaran v. State of Tamil Nadu, it was
held that the Articles 14, 19 and 21 are available to the prisoners as well as freemen.
Prison walls do not keep out fundamental rights. The Supreme Court of India, by
interpreting Article 21 of the Constitution, has developed human rights
jurisprudence for the preservation and protection of prisoners’ rights to human
dignity.
✓ Article 21 of the Constitution of India says that no person shall be deprived of his life
or personal liberty except according to procedure established by law.
✓ This Article stipulates two concepts i.e., right to life and principle of liberty. By Article
21 of the Indian Constitution it is clear that it is available not only for free people but
also to those people behind the prison.
✓ Article 21 casts an obligation upon the State to preserve the life of every person,
whether innocent or guilty.
✓ State of Andhra Pradesh v. Challa Ram Krishna Reddy, the Supreme Court made the
observation that the right to life is one of basic human rights and held that even a
prisoner, be he a convict or under-trial or a detenu continues to enjoy all his
fundamental rights including the right to life guaranteed to him under the
Constitution.
✓ The case of Sunil Batra v. Delhi Administrationis a landmark case concerning the
important suggestions for safeguarding the rights of the prisoners. These suggestions
were made by Justice Krishna Iyer.
 1. Upendra Baxi v. State of U.P., (1983) 2 SCC 308; Rights of inmates of protective homes.
2. M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544; the Constitution of India, Article
39-A- Right to free legal aid.
3. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81. Right to speedy trial.
4 .Jagmohan Singh v. State of U.P., AIR 1973 SC 947- Right against cruel and unusual
punishment.
5. Rattiram v. State of M.P., (2012) 4 SCC 516- Right to fair trial.
6. D.K. Basu v. State of W.B., (1997) 1 SCC 416- Right against custodial violence and death in
police lock-ups or encounters.
7. Jeeja Ghosh v. Union of India, (2016) 7 SCC 761- Right to live with human dignity.
8. Sunil Batra v. Delhi Administration, AIR 1980 SC 1579- Right to meet friends and consult
lawyer.
9. Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535- Rights against solitary
confinement, handcuffing & bar fetters and protection from torture.
10. People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473- Right to
reasonable wages in prison.
11. Rudal Shah v. State of Bihar, AIR 1983 SC 1086; Bhim Singh v. State of J & K, (1985) 4 SCC
677- Right to compensation for wrongful arrest, detention and torture.
12. T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361- Right against delayed
execution.
13. A.G. of India v. Lachma Devi, AIR 1986 SC 467- .Right against public hanging.
14. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802- Right of release and
rehabilitation of bonded labour.

8. Enforcement of international human rights convention in India.

✓ Article 51 (c) and Executive Power to Implement Treaties: Article 51 (c) enjoins the
State to foster respect for International Law and Treaty Obligations.
✓ The term State includes the Government (Union Executive) under Article 12 of the
Constitution.
✓ In this context, an issue that arises for consideration is that whether Article 51 (c)
confers power on the Government (Union Executive) to implement International
Treaties Article 51 (c) finds place in Part IV of the Constitution that deals with the
Directive Principles of State Policy.
✓ the status of Article 51 (c) is that it directs the State to respect Treaty Obligations
while making laws meaning any law made by the Parliament shall not conflict with
the Treaty Obligations.
✓ In Corocraft v. Pan American Airways[18] The above observation of Sikri C.J. has been
followed by the Supreme Court whenever the provisions of international law are in
conflict with Indian laws and attempts have been made to interpret Indian laws in
conformity with international law. Thus, the status of Article 51(c) is that it could be
used for interpretive tool and to harmonize the Indian laws with International law
including treaty obligations whenever there is a conflict between the two..
✓ In Kesavananda Bharati vs State of Kerala, the Supreme Court observed that the
Universal Declaration of Human Rights may not be a legally binding instrument but it
shows how India understood the nature of the Human Rights at the time the
Constitution was adopted. Thus, although the Supreme Court has stated that the
Declaration cannot create a binding set of rules and even international treaties may
 at best inform judicial institutions and inspire legislative action, constitutional
interpretation in India has been strongly influenced by the Declaration.
✓ In Chairman, Railway Board and others v Mrs. Chandrima Das, the Supreme Court
observed that the Declaration has the international recognition as the "Moral code
of Conduct" having been adopted by the General Assembly of the United Nations. In
a number of cases the Declaration has been referred to in the decisions of the
Supreme Court and High Courts.

9. Describe the rights enforcement system provided under American convention on human
rights.
✓ The American Convention on Human Rights, also known as the Pact of San Jose, is an
international human rights instrument.
✓ It was adopted by many countries in the Western Hemisphere in San Jose Costa Rica,
on 22 November 1969.
✓ It came into force after the eleventh instrument of ratification (that of Grenada) was
deposited on 18 July 1978.
✓ The bodies responsible for overseeing compliance with the Convention are the Inter-
American Commission on Human Rights and the Inter-American Court of Human
Rights, both of which are organs of the Organization of American States (OAS).
1. Inter American Commission of Human Rights
• The Inter-American Commission on Human Rights (IACHR) addresses human
rights conditions and violations in the 35 Member States of the OAS
(Organization of American States).
• Established by an OAS resolution in 1959.
• OAS Member States recognized the IACHR as the region’s principal human rights
body through a protocol to the OAS Charter which was adopted in 1967 and
entered into force in 1970.
• The Commission is composed of seven members who are elected by the OAS
Member States and who serve part-time and in their individual capacities for
four-year terms that may be renewed once.
• The commissioners are supported by the staff of the Executive Secretariat. In
June 2019, four seats on the Commission will be filled in an election.
• The IACHR began operating in 1960, observing human rights conditions via on-
site visits, and in 1965 was authorized to begin processing specific complaints of
human rights violations.
• In addition to carrying out country visits and receiving complaints, the
Commission also holds thematic hearings on specific topical areas of concern,
publishes studies and reports, requests the adoption of precautionary measures
to protect individuals at risk, and has established several thematic
rapporteurships to more closely monitor certain human rights themes or the
rights of specific communities in the hemisphere.
• Individuals, groups of individuals, and non-governmental organizations
recognized in any OAS Member State may submit complaints (“petitions“)
concerning alleged violations of the American Declaration of the Rights and
Duties of Man, American Convention on Human Rights, and other regional
human rights treaties
• The Commission receives approximately 1,500 petitions every year.
 • The Commission’s Statute and Rules of Procedure outline its structure,
objectives, and procedures, although some aspects of the day-to-day processing
of cases are determined by the legal staff of the Executive Secretariat.
2. Inter-American Court of Human Rights
• The Inter-American Court of Human Rights is the judicial organ of the
InterAmerican human rights system.
• The Court’s mandate is more limited than that of the Commission because
the Court may only decide cases brought against the OAS Member States
that have specifically accepted the Court’s contentious jurisdiction and those
cases must first be processed by the Commission.
• Additionally, only States parties and the Commission may refer contentious
cases to the Court.
• The Organization of American States established the Court in 1979 to
enforce and interpret the provisions of the American Convention on Human
Rights.
• Its two main functions are thus adjudicatory and advisory.
• Under the former, it hears and rules on the specific cases of human rights
violations referred to it.
• Under the latter, it issues opinions on matters of legal interpretation brought
to its attention by other OAS bodies or member states.
• The seven judges of the Court are independent, but are chosen by States
through the OAS General Assembly.
• Judges are elected for a six-year term, once renewable.
• The Court and its judges convene several times per year for sessions lasting
up to two weeks, but its staff works year-round.
• Currently, 23 OAS Member States are States parties to the American
Convention on Human Rights, and 20 have opted to accept the Court’s
contentious jurisdiction in accordance with Article 62 of the American
Convention.
• The Court began operating in 1979, and soon issued several advisory
opinions, but did not begin exercising its contentious jurisdiction until 1986,
when the Commission submitted the first contentious case:
• Velasquez Rodriguez v. Honduras, regarding which the Court issued a
judgment on the merits in 1988.
• The Court's advisory function enables it to respond to consultations
submitted by OAS agencies and member states regarding the interpretation
of the Convention or other instruments governing human rights in the
Americas;
• it also empowers it to give advice on domestic laws and proposed legislation,
and to clarify whether or not they are compatible with the Convention's
provisions.
• This advisory jurisdiction is available to all OAS member states, not only
those that have ratified the Convention and accepted the Court's
adjudicatory function.
• The Court's replies to these consultations are published separately from its
contentious judgments, as advisory opinions.
 • Over the Court’s first several decades in operation, its annual case load has
more than doubled; many more States have found themselves before the
Court; and
• the Court has adjudicated a significant range of rights protected by the
American Convention and ancillary agreements, from extrajudicial execution
and forced disappearance cases, to labour, land, and freedom of expression
rights.
• The American Convention on Human Rights 1969, provides for two
specialised enforcement mechanism or as Article 33 of the American
Convention provides they are organs having “competence with respect to
matters relating to the fulfilment of the commitments made by the State
Parties to this Convention”.

10. Evaluate the human rights enforcement system provider under European convention on
human rights.
✓ The European Convention on Human Rights (ECHR) protects the human rights of
people in countries that belong to the Council of Europe.
✓ The Convention came into full effect on the 3rd September 1953.
✓ It was intended to be a simple, flexible roundup of universal rights, whose meaning
could grow and adapt to society’s changing needs over time.
✓ Not only were ordinary people to be protected from abuse by the state, but duties
were to be placed on those states to protect individuals.
✓ It has been hugely important in raising standards and increasing awareness of
human rights across CoE member states, and beyond.
✓ All 47 Member States of the Council, including the UK, have signed the Convention.
Its full title is the ‘Convention for the Protection of Human Rights and Fundamental
Freedoms’.
✓ The Convention guarantees specific rights and freedoms and prohibits unfair and
harmful practices.
✓ The Convention secures:
• the right to life (Article 2)
• freedom from torture (Article 3)
• freedom from slavery (Article 4)
• the right to liberty (Article 5)
• the right to a fair trial (Article 6)
• the right not to be punished for something that wasn’t against the law at the time
(Article 7)
• the right to respect for family and private life (Article 8)
• freedom of thought, conscience and religion (Article 9)
• freedom of expression (Article 10)
• freedom of assembly (Article 11)
• the right to marry and start a family (Article 12)
• the right not to be discriminated against in respect of these rights (Article 14)
• the right to protection of property (Protocol 1, Article 1)
• the right to education (Protocol 1, Article 2)
• the right to participate in free elections (Protocol 1, Article 3)
• the abolition of the death penalty (Protocol 13)
 ✓ The European Court of Human Rights applies and protects the rights and guarantees
set out in the European Convention on Human Rights.

11. Explain the role of United Nations organization in the promotion and protection of human
rights.
✓ The United Nations is the world’s largest intergovernmental organization. Currently
made of five main organs – the General Assembly, the Security Council, the
Economic and Social Council, the International Court of Justice, and the UN
Secretariat – the UN serves an important role in the world. The purpose of the UN
✓ Article 1 of the UN Charter lays out the purpose of the organization in four
parts, which are paraphrased here:
1. To maintain international peace and security (which includes
preventing and removing threats, suppressing acts of aggression, and
settling disputes)
2. To develop friendly relations among nations based on respecting the
equal rights and self-determination of people
3. To achieve international cooperation in solving economic, social,
cultural, and humanitarian problems (including promoting respect for
human rights and freedoms)
4. To be a center for harmonizing the actions of nations as they try to
accomplish these goals.
Treaties and legal instruments
1) The International Bill of Human Rights: The International Bill of Human Rights is made of
three instruments: The UDHR, the International Covenant on Civil and Political Rights, and
the International Covenant on Economic, Social and Cultural Rights. The UDHR is the
foundation of international human rights law. The two covenants reiterate many of the
articles in the UDHR, but the covenants are legally-binding treaties.
2) Conventions: A convention is a legally binding agreement between contracting countries
and the UN. Several conventions address human rights issues, such as the International
Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the
Elimination of All Forms of Discrimination Against Women; and the Convention on the Rights
of the Child.

Entities that address human rights:

i. The Office of the High Commissioner for Human Rights (OHCHR) Based in Geneva,
the OHCHR is the main UN entity that protects and promotes human rights. It
supports the human rights aspects of peacekeeping missions and maintains offices in
different regions such as Africa, the Americas, the Middle East, and Europe and
Central Asia. The High Commissioner for Human Rights has the authority to
investigate human rights situations, publish reports, and comment on human rights
issues.
ii. The Human Rights Council In 2006, the HRC replaced the UN Commission on Human
Rights. Its mission is to promote and protect human rights. The Council has 47
elected members that address human rights violations, make recommendations, and
discuss “thematic human rights issues and situations.” Members are elected for
staggered three-year terms on a regional group basis.
iii. The Security Council The Security Council frequently deals with human rights abuses,
especially in conflict zones. The Council has the authority for certain actions. They
 can investigate, mediate, dispatch a mission, appoint special envoys, dispatch a
peacekeeping force, and issue a ceasefire directive. They can also establish travel
bans, economic sanctions, arms embargoes, and more.
iv. UN peacekeepers The UN sends out many peacekeeping operations and peace-
building missions. Working on the ground, human rights teams are responsible for
protecting civilians, addressing conflict-related human rights violations, and
strengthening respect for human rights and the rule of law.
v. The UN Development Group’s Human Rights Working Group This group was
established in 2009 at the request of the UN Secretary-General. Abbreviated as
UNDG-HRWG, this group’s role is to advance human rights mainstreaming efforts
with the UN development system. The OHCHR serves as the Chair. Priorities include
making human rights expertise available to national development actors and helping
the UN development system deliver rightsbased development results.
vi. Treaty bodies There are ten human rights treaty bodies made of independent
experts in human rights. They are elected for fixed renewable four-year terms by
State parties. Their role is to monitor the implementation of the core international
human rights treaties, such as the International Covenant on Economic, Social and
Cultural Rights.
SPECIAL AGENCIES
b. Special Representatives: In addition to Special Advisers, the SecretaryGeneral also
appoints special representatives who advocate against major human rights abuses. There are
currently three special representatives focused on Children and Armed Conflict; Sexual
Violence in Conflict; and Violence Against Children.
c. Special Rapporteurs: The Human Rights Council appoints Special Rapporteurs, who are
human rights experts. Their role is to monitor, advise, and report on human rights situations
in specific countries and worldwide. They respond to individual complaints, conduct studies,
and travel to countries to assess human rights situations.

12. THEORIES
(1) Natural law theory.
✓ As remarked by Dias, "no other firmament of legal or political theory is so
bejewelled with star as that of 'Natural Law' for it has engaged the attention of
some of the greatest thinkers of all ages."
✓ The credit of giving birth to natural law 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 'Jus Civil'.
✓ Later on, the Romans developed another legal system called 'Jus gentium" which
was considered to be the law of universal application.
✓ In the republican era of Rome 'Jus gentium' was reinforced by natural law or 'Jus
natural' as it was commonly called.
✓ As pointed out by Brierly, by "Jus natural" the Romans meant "the sum of those
principles which ought to control human conduct because founded in the very
nature of man as a rational and social being.
✓ The law of nature is the expression of what is just against what is merely
expedient at a particular time and place, it is what is reasonable against what is
 arbitrary, what is natural against what is convenient and what is for social good
against the personal will.”
✓ Thus natural law was based on the rational and reasonable needs of a man's
nature.
✓ According to Romans natural law embodied the elementary principles of justice
which were the dictate of rights and reason.
✓ In other words, those principles were in accordance with nature and were
unalterable and eternal.
✓ 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.
✓ John Locke was the chief exponent of natural rights theory. According to John
Locke, human beings existed in a state of nature where men and women were in
a state of freedom, able to determine their actions and also in a state of equality.
✓ Locke further imagined that in such a state of nature, no one was subjected to
the will or authority of another.
✓ Subsequently, in order to avoid certain hazard and inconvenience of the state of
nature they entered into a contract, some sort of social contract, whereby they
mutually agreed to form a community and set up a body of politic.
✓ But they retained certain natural rights, such as, rights of life, liberty and
property.
✓ It was the duty of the government to respect and protect the natural rights of its
subjects.
✓ A government which failed or neglected the said duty would forfeit its validity
and office.
✓ However, it may be noted that the concept of natural law, and so also that
natural rights theory underwent changes in different periods in accordance with
times and circumstances.
(2) Positivism or the theory of the Authority of State.
✓ A different approach in respect of the rights was adopted by the positivists.
✓ The positivism was in vogue in 18th and 19th centuries.
✓ Positivists believed that people would be bound to obey law if it was created by
appropriate legislative authority or sovereign irrespective of its being reasonable
or unreasonable.
✓ The positivists called this law, law positivism i.e. law which is in fact as contrasted
with law which ought to be.
✓ Bynker Shoek was one of the chief exponents of the positivists school.
✓ According to the positivists, the source of human rights lies in the enactment of
a system of with sanctions attached to it.
✓ They emphasise the distinction between "is" and 'ought' and criticize natural law
theorists for undue emphasis on 'ought' and for blurring the distinction between
the two.
✓ The modern exponent of positivism is Prof. H.L.A. Hart. According to him, there
is a distinction between invalidity of law and the morality of law.
✓ This is the basic difference between natural rights theory and Positivist theory.
✓ According to the Positivists, a law to be valid must be enacted by an appropriate
legislative authority.
 ✓ Such a law remains valid, irrespective of its morality.
✓ This theory has been severely criticized.
✓ It fails to explain the validity customary law which is not created by any
legislative authority.
✓ It also fails to explain general principles of law recognized by States.
✓ So is also the case of law established by organs of Public International
Organisations.
(3) Theories based on Justice.
✓ John Rawl is the chief exponent of this theory. According to him, "Justice is the
first virtue of social institutions."
✓ In his view, the role of justice is crucial to the understanding of human rights.
Indeed human rights are an end of justice.
✓ The principles of justice provide a way of assigning rights and duties in the basic
institutions of society and also define the appropriate distribution of the benefits
and burdens of social co-operation.
✓ The general conception of justice behind the principles of justice is one of
fairness.
✓ The concept of fairness runs throughout in theories based on justice.
✓ The concept of fairness and justice help to determine all social primary goals,
such as, liberty and opportunity, income and wealth and the leases of self-
respect which are to be distributed equally unless an exception is made for the
benefit of least forward.

13. Elucidate the rights and enforcement system provided under the international covenant on
economic, social and cultural rights.
✓ The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a
multilateral treaty adopted by the United Nations General Assembly (GA) on 16
December 1966 through GA.
✓ Resolution 2200A (XXI), and came in force from 3 January 1976. It commits its
parties to work toward the granting of economic, social, and cultural rights (ESCR) to
the NonSelf-Governing and Trust Territories and individuals, including labour rights
and the right to health, the right to education, and the right to an adequate standard
of living.
✓ As of July 2020, the Covenant has 171 parties. The ICESCR (and its Optional Protocol)
is part of the International Bill of Human Rights, along with the Universal Declaration
of Human Rights (UDHR) and the International Covenant on Civil and Political Rights
(ICCPR), including the latter's first and second Optional Protocols.[4]
✓ The Covenant is monitored by the UN Committee on Economic, Social and Cultural
Rights.
✓ The Covenant follows the structure of the UDHR and the ICCPR, with a preamble and
thirty-one articles, divided into five parts.[12]
✓ Part 1 (Article 1) recognises the right of all peoples to self-determination, including
the right to "freely determine their political status",[13] pursue their economic,
social and cultural goals, and manage and dispose of their own resources. It
recognises a negative right of a people not to be deprived of its means of
subsistence,[14] and imposes an obligation on those parties still responsible for non-
self governing and trust territories (colonies) to encourage and respect their self-
determination.[15]
✓ Part 2 (Articles 2–5) establishes the principle of "progressive realisation" (see below.)
It also requires the rights be recognised "without discrimination of any kind as to
race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status".[16] The rights can only be limited by law, in a
manner compatible with the nature of the rights, and only for the purpose of
"promoting the general welfare in a democratic society".[17]
✓ Part 3 (Articles 6–15) lists the rights themselves. These include rights to
• work, under "just and favourable conditions",[18] with the right to form and join
trade unions (Articles 6, 7, and 8);
• social security, including social insurance (Article 9);
• family life, including paid parental leave and the protection of children (Article 10);
• an adequate standard of living, including adequate food, clothing and housing, and
the "continuous improvement of living conditions" (Article 11);
• health, specifically "the highest attainable standard of physical and mental health"
(Article 12);
• education, including free universal primary education, generally available
secondary education and equally accessible higher education. This should be
directed to "the full development of the human personality and the sense of its
dignity",[19] and enable all persons to participate effectively in society (Articles 13
and 14);
• participation in cultural life (Article 15).
✓ Part 4 (Articles 16–25) governs reporting and monitoring of the Covenant and the
steps taken by the parties to implement it. It also allows the monitoring body –
originally the United Nations Economic and Social Council – now the Committee on
Economic, Social and Cultural Rights – see below – to make general
recommendations to the UN General Assembly on appropriate measures to realise
the rights (Article 21)
✓ Part 5 (Articles 26–31)
• governs ratification, entry into force, and amendment of the Covenant The
Committee on Economic, Social and Cultural Rights is a body of human rights
experts tasked with monitoring the implementation of the Covenant.
• It consists of 18 independent human rights experts, elected for four-year
terms, with half the members elected every two years.[72]
• Unlike other human rights monitoring bodies, the committee was not
established by the treaty it oversees.
• Rather, it was established by the Economic and Social Council following the
failure of two previous monitoring bodies.[36]
• All states parties are required to submit regular reports to the Committee
outlining the legislative, judicial, policy and other measures they have taken
to implement the rights affirmed in the Covenant.
• The first report is due within two years of ratifying the Covenant; thereafter
reports are due every five years.
• The Committee examines each report and addresses its concerns and
recommendations to the State party in the form of "concluding
observations".
• The Committee typically meets every May and November in Geneva.
14. Expand the provisions of charter of United Nations organization relating to promotion of
human rights.
✓ World War I (1919) and World War II (1939) both the world wars inspired the
awakening to the value of human life.
✓ The United Nations charter is pervaded by the deep attachment of Human Rights.
✓ The aim of the charger is to save the humanity from the scourge of War and the
complete development of human personality, his liberties, and scope for the same.
✓ The Charter of the United Nations (also known as the UN Charter) of 1945 is the
foundational treaty of the United Nations.
PROVISIONS OF UN CHARTER CONCERNING HUMAN RIGHTS:
✓ The preamble of the United Nations, declared its aim to wipe out the fear of war, the
promotion of human rights and the worth of human person and dignity of mankind.
✓ It also seeks to establish justice, and promotes corporation between the States to
discharge their duties to create a just economic, social and cultural order wherein
mankind can realize the fundamental human rights in accordance with the principles
of international law.
✓ Accordingly, a number of provisions of the Charter have incorporated human rights.
They are as follows:
i. Article 1 of the Charter lays down the purposes of the United Nations.
Accordingly, it is one of the duties of the UN as a world body to take
necessary steps to achieve international co-operation in order to reduce the
inequalities of economic, social, and cultural aspects. It also oversees to
promote and encourage the nation-states to respect the human rights of
man and the promotion of all the fundamental freedoms without any
distinction to race, sex, language or religion.
ii. Article 8 of the charter lays down that the UN shall place no restriction on
the eligibility of men and women to participate in any capacity equally in its
principal and subsidiary organs.
iii. According to Article 13, to achieve the purposes and objectives of the
Charter, especially with respect to the promotion of Human Rights, the
General Assembly (since the General Assembly represents all the nations), it
has been entrusted with the task of taking harmonized steps in the
promotion of human rights of economic, social, cultural, educational and
fundamental freedoms.
iv. According to Article 55, it is the responsibility of the United Nations to take
General Assembly (since the General Assembly represents all the nations), it
has been entrusted with the task of taking harmonized steps in the
promotion of human rights of economic, social, cultural, education and
fundamental freedoms.
(a) To suggest solutions to help the states to help the states to achieve
internationally economic, social, health, education, and cultural relations of
a high standard; and
(b) To promote universal respect for human rights without any
discrimination on any grounds whatsoever. To achieve the objectives states
in the Article 55, the member states established the Economic and Social
Council as one of the significant organs of the United Nations, in order to
assist the General Assembly in realizing the protection and promotion of
human rights.
 v. According to Article 76, the member states established a Trusteeship Council
as another principal organ. above are the most important objectives of UN
to achieve the fundamental freedoms of human beings across the globe.
vi. According to Article 7 the UN will have six principal organs as discussed
above. The function of all the organs is to carry out the duties towards the
nation-states, which includes the promotion of human rights as their
principal duty.
vii. According to Article 51, if any country disobeys the mandate, especially in
the promotion and protection of human rights, or if any country is under
threat from another country, the Security Council is empowered to take all
necessary steps including even to declare a war to achieve peace and
security, which includes the promotion and protection of human rights. viii.
viii. A part from the above, in accordance with Article 55, the Security Council
may direct the regional organizations (like European Union, SAARC etc.,
these organizations are established by member states of the UN to settle
their internal differences or to promote their relations that are specific to
their region only). The aim of these organizations is to assist the Un and to
achieve the economic, social, cultural aspects and fundamental freedoms of
each region quickly and to resolve the differences between them at the
regional level.

15. Explain the various human rights recognition article 19 (1) (a) of the constitution of India
with decided cases.
✓ Article 19 of the UNDHR states that Everyone has the right to freedom of opinion
and expression; this right includes freedom to hold opinions without interference
and to seek, receive and impart information and ideas through any media and
regardless of frontiers.
✓ Article 19 (1) (a) of the Constitution, guarantees certain fundamental rights, subject
to the power of the State to impose restrictions on the exercise of those rights.
✓ The Article was thus intended to protect these rights against State action other than
in the legitimate exercise of its power to regulate private rights in the public interest.
✓ The people of India gave to themselves, the Constitution of India, with a view of
make it Sovereign, Democratic, Socialistic, Secular and Republic.
✓ In our democratic society, pride to place has been provided to freedom of speech
and expression, which is the mother of all liberties.
✓ One of the main objectives of the Indian Constitution as envisages in the Preamble,
is to secure LIBERTY OF THOUGHT AND EXPRESSION to all the citizens.
✓ Freedom of Expression is among the foremost of human rights.
✓ It is the communication and practical application of individual freedom of thought.
✓ Irrespective of the system of administration, various constitutions make a mention of
the freedom of expression.
✓ The main elements of right to freedom of speech and expression are as under:
• This right is available only to a citizen of India and not to foreign nationals.
• The freedom of speech under Article 19(1) (a) includes the right to express one's
views and opinions at any issue through any medium, e.g. by words of mouth,
writing, printing, picture, film, movie etc.
• This right is, however, not absolute and it allows Government to frame laws to
impose reasonable restrictions in the interest of sovereignty and integrity of India,
 security of the state, friendly relations with foreign states, public order, decency and
morality and contempt of court, defamation and incitement to an offence.
Decided Cases Which Explained Freedom of Speech And Expression:
1) Freedom of Press:
Freedom of speech include right to propagate one's views through print media or any
other communication channel e.g radio, television subject to reasonable restrictions
imposed under Article 19(2).Romesh Thappar v. State of Madras, was amongst the
earliest cases to be decided by the Supreme Court declaring freedom of press as a part
of freedom of speech and expression. In the case of Indian Express v. Union of India,it
has been held that the Press plays a very significant role in the democratic machinery.
The courts have duty to uphold the freedom of press and invalidate all laws and
administrative actions that abridge that freedom. Freedom of Press includes freedom of
publication, freedom of circulation and freedom against pre-censorship.
2) Freedom of Commercial speech
In Tata Press Ltd. Vs. Mahanagar Telephone Nigam Ltd., the Supreme Court held that a
commercial advertisement or commercial speech was also a part of the freedom of
speech and expression, which would be restricted only within the limitation of Article
19(2).
3) Right to Broadcast
The concept speech and expression has evolved with the progress of technology and
include all available means of expression and communication. This would include the
electronic and the broadcast media. In Odyssey Communications (P) Ltd .v. Lokvidayan
Sanghatana, the Supreme Court held that the right of a citizen to exhibit films on the
State channel Doordarshan is part of the fundamental right guaranteed under Article
19(1)(a). In this case, the petitioners challenged the exhibition on Doordarshan of a serial
titled Honi Anhonion on the ground that it encouraged superstitious and blind faith
amongst viewers. The petition was dismissed as the petitioner failed to show evidence of
prejudice to the public.
4) Right to information
The freedom of 'speech and expression' comprises not only the right to express, publish
and propagate information, it circulation but also to receive information. Union of India
v. Assn. for Democratic Reforms, "One-sided information, disinformation, misinformation
and noninformation, all equally create an uninformed citizenry which makes democracy
a farce. Freedom of speech and expression includes right to impart and receive
information which includes freedom to hold opinions".
5) Right to criticize
In S. Rangarajan v.P. Jagjivan Ram, everyone has a fundamental right to form his opinion
on any issues of general concern. Open criticism of government policies and operations
is not a ground for restricting expression.
6) Right to expression beyond national boundaries
In Maneka Gandhi vs Union of India, the Supreme Court considered whether Article
19(1)(a) of Indian Constitution was confined to Indian territory and held that the
freedom of speech and expression is not confined to National boundaries.
7) Right not to speak or Right to silence
is also included in the Right to speech and expression. In the case of Bijoe Emmanuel vs
State of Kerala, three students were expelled from the school for refusal to sing the
national anthem. However, the children stood up in respect when the national anthem
was playing. The validity of the expulsion of the students was challenged before the
 Kerala High Court and they upheld the expulsion of the students on the ground that it
was their fundamental duty to sing the national anthem.

16. African commission on human rights.

✓ The African Commission on Human and Peoples’ Rights is a quasi-judicial
body,established by the African Charter on Human and Peoples’ Rights.
✓ The Commission is based in Banjul, The [Link]
✓ The Commission is composed of eleven members (Article 31 ACHPR): ‘Chosen from
amongst African personalities of the highest reputation, known for their high
morality, integrity, impartiality and competence in matters of human and peoples’
rights; particular consideration being given to persons having legal experience.’ ‘The
members of the Commission shall serve in their personal capacity.’
✓ Who may file a complaint?
✓ Article 55 ACHPR does not place any restrictions on who can submit cases to the
Commission.
✓ This provision simply notes: ‘Before each session, the Secretary of the Commission
shall make a list of the communications other than those of States Parties to the
present Charter’.
✓ The Commission has interpreted this provision as giving locus standi to the victims
themselves and to the victims’ families as well as NGOs and others acting on their
behalf.
✓ Admissibility Exhaustion of domestic remedies: Article 56(5) ACHPR. The Commission
can only deal with communications if they ‘are sent after exhausting local remedies,
if any, unless it is obvious that this procedure is unduly prolonged’.
✓ Time period: Article 56(6) ACHPR. The Communications must be ‘submitted within a
reasonable period from the time local remedies are exhausted or from the date the
Commission is seized of the matter’.
✓ Duplication of procedures at the international level: Article 56(7) ACHPR. The
Commission does ‘not deal with cases which have been settled by these states
involved in accordance with the principles of the Charter of the United Nations , or
the Charter of the Organization of African Unity or the provisions of the present
Charter’.
✓ Inadmissibility Article 56 ACHPR. ‘Communications relating to human and peoples’
rights referred to in Article 55 received by the Commission shall be considered if
they: (1) Indicate their authors even if the latter request anonymity, (2) Are
compatible with the Charter of the Organization of African Unity or with the present
Charter, (3) Are not written in disparaging or insulting language directed against the
state concerned and its institutions or to the Organization of African Unity [?].’
✓ Interim measures The Commission has developed a mechanism for adoption of
provisional measures in its Rules of Procedure (Rule 111). ‘1. Before making its final
views known to the Assembly on the communication, the Commission may inform
the State Party concerned of its views on the appropriateness of taking provisional
measures to avoid irreparable damage being caused to the victim of the alleged
violation. [?]. 2. The Commission may [?] indicate to the parties any interim measure,
the adoption of which seems desirable in the interest of the parties or the proper
conduct of the proceedings before it.’
✓ Friendly settlement Article 52 ACHPR. ‘After having obtained [?] all the information it
deems necessary, and after having tried all appropriate means to reach an amicable
 settlement based on the respect of Human Rights and Peoples’ Rights, the
Commission shall prepare [?] a report stating the facts and its findings.’ Rule 98 Rules
of Procedure. ‘[T]he Commission shall place its good offices at the disposal of the
interested States Parties to the Charter so as to reach an amicable solution on the
issue based on the respect of human rights and fundamental liberties, as recognized
by the Charter.’
✓ Procedure Written procedure, official and working languages are set out in Rule 34
Rules of Procedure of the Commission. ‘The working languages of the Commission
and of all its institutions shall be those of the Organisation of African Unity.’ ‘The
working languages of the Union and all its institutions shall be, if possible, African
languages, Arabic, English, French and Portuguese.’ (Article 25 Constitutive Act of the
AU).

17. Human rights court.

✓ Human rights in India are guaranteed and protected mainly by the Constitution of
India.
✓ These rights form the organic laws of the country. It acts as a basis for the other
rights to develop.
✓ A constitutional amendment cannot alter the rights except through constitutional
amendments.
✓ The process of modification is cumbersome and requires several debates,
discussions, and deliberations.
✓ The Universal Declaration of Human Rights becomes a reference for framing the
provisions in India.
✓ Human rights had another objective of establishing a stable government.
✓ The enactment of the Protection of Human Rights Act (PHRA) 1993 led to the
establishment of:
1. National Human Rights Commission;
2. State Human Rights Commissions; and
3. Human Rights Courts.
✓ Human rights courts in India Section 30 of the Protection of Human Rights Act, 1993,
says that “Human Rights Courts to provide speedy trial of offenses arising out of
violation of human rights, the State Government may, with the concurrence of the
Chief Justice of the High Court, by notification, specify for each district a Court of
Session to be a Human Rights Courts to try the said offenses: Provided that nothing
in this Section shall apply if:
1. A Court of Session is already specified as a special court; or
2. A special court is already constituted, For such offenses under any other law for
the time being in force.”
✓ Special Public Prosecutor Under Section 31 of the Protection of Human Rights Act,
1993, the appointment of special prosecutors for the Human Rights Courts.
✓ Human Rights Courts will have a status of imparting justice and will have a different
situation when compared to the National Human rights Commission or the State
Human Rights Commission.
✓ Human Rights Courts in Districts Chapter VI of the Act, which includes Sections 30
and 31, provides the provision relating to the formation of a Human Rights court in
every district of the country.
✓ This is done for accelerating the speedy trial of offenses arising out of violation of
Human Rights.
✓ Important Cases In the year 2019,
✓ Punjab state Human Rights Commission v. Jatt Ram, NHRC also put forth the
judgment that no state compiled the order to specify or set up the HRC. The bench
said that the setting of the courts does not consider it essential to appoint any
additional judges or infrastructure till the judgment of the court is not executed. The
Supreme Court had issued Chief Secretaries to show why chief secretaries need not
issue such directions