Human rights

Q. Write a note on the Universal Declaration of Human Rights, I948.

The Universal Declaration of Human Rights (UDHR) emerged in 1948 as a reaction
to the atrocities and oppression caused by the Second World War. It was for the first
time that the rights and Freedoms of individuals were detailed and there was
international acknowledgement of the “inherent dignity and of the equal or
inalienable rights of all members of the human family as the foundation of freedom,
justice and peace in the world”. The UDHR emphasized that ‘a common
understanding of these rights and freedoms is of the greatest importance for the full
realization of rights contained therein’. The UDHR contains rights that were
culturally and politically acceptable to most countries across the world, thereby
imparting a universal character to the Declaration. The Indian Constitution in fact,
exemplifies the ‘common understanding’ of basic human rights as it incorporates the
principles outlined in the UDHR in the form of Fundamental Rights and Directive
Principles of State Policy.
The UDHR was framed by members of the Human Rights Commission, with former
First Lady Eleanor Roosevelt as Chairperson, who began to discuss an International
Bill of Rights in 1947. The members of the Commission did not immediately agree on
the form of such a bill of rights, and whether, or how, it should be enforced. The
Commission proceeded to frame the UDHR and accompanying treaties, butthe UDHR
quickly became the priority.
For the first time in history, the international community embraced document
considered to have universal value. Its Preamble acknowledges the importance of a
human rights legal framework to maintain international peace and security, stating
that recognition of the inherent dignity and equal and inalienable rights of all
individuals isthe foundation of freedom, justice and peace in the world. Elaborating
the United Nations Charter’s declared purpose of promoting social progress and well-
being in larger freedom, the Declaration gives equal importance to economic, social
and cultural rights and to civil sights and political liberties, and affords them the
same degree of protection. The Declaration has inspired more than 60 international
human rights instruments, which together constitute a comprehensive system of
legally binding treaties for the promotion and protection of human rights. Thus, the
UDHR is a landmark achievement in world history. Today it continues to affect
people’s lives and inspire human rights activism and legal rights all over the world.
The UDHR is remarkable in two fundamental aspects. In 1948, the then 58 Member
States of the United Nations represented a range of ideologies, political systems and
religious and cultural backgrounds as well as different stages of economic
development. Most important of the UDHR was to be a common statement of mutual
aspirations —a shared vision of a more equitable and just world.
The Universal Declaration covers the range of human rights in 30 clear and concise
articles. The first two articles lay the universal foundation of human rights: human
beings are equal because of their shared essence of human dignity; human rights
are universal, not because of any State international organization, but because they
belong to all of humanity. The two articles assure that human rights are the
birthright of everyone; not privileges of a select few, nor privileges to be granted or
denied. Article 1 declaresthat “all human beings are born equal in dignity and rights.
They are endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.” Article 2 recognizes the universal dignity of a life free from
discrimination. “Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind such asrace, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.”
The first cluster of Articles, 3 to 21, sets forth civil and political rights ‘to which
everyone is entitled. The right to life, liberty and personal security, recognized in
Article 3, sets the base for all following political rights and civil liberties, including
freedom from slavery, torture and arbitrary arrest, as well asthe rights to a fair trial,
free speech and free movement and privacy.
The second cluster of Articles, 22 to 27, sets forth the economic, social and cultural
rights to which all human beings are entitled. The cornerstone of these rights is
Article 22, acknowledging that, as a member of society, everyone has the right to
social security and is therefore entitled to the realization of the economic, social and
cultural rights “indispensable” for his or her dignity and free and full personal
development. Five articles elaborate the rights necessary for the enjoyment of the
fundamental right to social security, including economic rights related to work, fair
remuneration and leisure, social rights concerning an adequate standard of living for
health, wellbeing and education, and the right to participate in the cultural life of
the community.
The third and final cluster of Articles, 28 to 30, provides a larger protective framework
in which all human rights are to be universally enjoyed. Article 28 recognizes the
right to a social and international order that enables the realization of human rights
and fundamental freedoms. Article 29 acknowledges that, along with rights, human
beings also have obligations to the community which also enable them to develop
their individual potential freely and fully. Article 30, finally, protects the
interpretation of the articles of the Declaration from any outside interference contrary
to the purposes and principles of the United Nations. It explicitly states that no State,
group or person can claim, on the basis of the Declaration, to have the right to engage
in any activity or to perform any act aimed at the destruction of any of the rights and
freedoms set forth in the Universal Declaration.
The preamble of the Declaration outlines the social and historical factors that led to
the formation of the Universal Declaration of Human Rights.
Article 1: Free and equal
All humans are born free and equal, and they should all be treated equally.
Article 2: Freedom from discrimination
Everyone is entitled to claim their rights, regardless of their sexual orientation,
socioeconomic status, religion, ethnicity, or language.
• Civil and Political Rights: Articles 3 to 21
Article 3: Right to life
Everyone has the right to life, as well as the right to live in a free and secure
environment.
Article 4: Freedom from slavery
No one has the right to treat anyone as a slave, and you have no right to enslave
anyone.
Article 5: Freedom from torture
No one human being has the right to subject any human being to torture.
Article 6: Right to recognition before the law
Each and every individual should be legally protected by law.
Article 7: Right to equality before the law
The law is the same for everyone and it should be applied in the same way to everyone
without any discrimination.
Article 8: Access to justice
When the rights of individuals are violated, they have every right to seek legal aid.
Article 9: Freedom from arbitrary detention
No individual has the authority to arbitrarily arrest or detain any individual, or
deport them from their nation.
Article 10: Right to a fair trial
Trials should be open to the public and conducted fairly by an impartial and
independent tribunal.
Article 11: Presumption of innocence
Until an individual is to be proven guilty in a court of law, they are presumed
innocent, and hence they have the right to a defence.
Article 12: Right to privacy
Each and every human being has the right to be protected if someone attempts to
damage their reputation, access their house without permission, or interfere with
their correspondence.
Article 13: Freedom of movement
Everyone has the right to leave or relocate inside their own country and to return
Article 14: Right to asylum
Everyone has the right to seek refuge in another country if you are being persecuted
in your homeland.
Article 15: Right to nationality
Each and every human being has the right to be a citizen of a country and to have
its nationality.
Article 16: Right to marriage and to found a family
Men and women have the right to marry (only when they attain their legal age to
marry) without any regard to race, country, or religion. The government and the legal
system of that country should safeguard families.
Article 17: Right to own property
All human beings have the legal right to own property. No one has the authority to
unlawfully take them from any individual.
Article 18: Freedom of religion or belief
Everyone has the freedom to freely express, change, and practise their religion alone
or with others.
Article 19: Freedom of Expression
Everyone has the right to think and freely express ideas or whatever they decide.
Article 20: Freedom of assembly
Every individual has the right to hold peaceful meetings and to participate in them.
Article 21: Right to take part in public affairs
Everyone has the right to participate in the political activities of their country and
has equal access to public service.
• Economic, Social, and Cultural Rights: Articles 22 to 27
Article 22: Right to social security
Every individual should be able to develop freely and take advantage of all the
benefits that their country has to offer.
Article 23: Right to work
Everyone has the right to work in just and fair conditions, with the freedom to select
their work and pay that allows them to sustain themselves and their families. For
equal work, everyone should be paid equally.
Article 24: Right to leisure and rest
Workdays should not be excessively long, and everyone has the right to rest and take
paid leave regularly.
Article 25: Right to an adequate standard of living
Everyone has the right to have everything you require so that you and your family
do not go hungry, are not homeless, and do not fall ill.
Article 26: Right to education
Regardless of race, religion, or place of origin, every human being has the right to
attend school, continue their studies as far as they choose, and learn.
Article 27: Right to take part in the cultural, artistic, and scientific life
Each and every individual has the right to share the cultural, artistic, and scientific
benefits of your community.
Article 28: Right to a free and fair world
To ensure that our rights are protected, there must be a court that can protect them.
Article 29: Duty to your community
We humans have responsibilities to the community that allows us to completely
develop our personality. Human rights should be protected by law. It should enable
everyone to appreciate and be respected by others.
Article 30: Rights are inalienable
No one, neither institution nor individual, should act in any way to undermine the
rights guaranteed by the UDHR.
Q. Write a critical note on the convention on Rights of Child, 1989.
According to UNICEF, the Convention on the Rights of the Child is the most
successful and universally accepted human rights treaty so far created. It has been
signed by every single member of the United Nations, a rare event in itself. But what’s
more, it has been ratified by them also. There are currently only two signatories that
have not ratified the Convention on the Rights of the Child. The Convention is
regarded as the definitive instrument for setting the standards of protection, and
defining the basic human rights of children. By limiting its area of application to
children, and highlighting their particular needs, it has cut through the cold barriers
and walls that frequently block other human rights conventions from receiving
universal support. While all members of the human family are undeniably entitled
to certain basic rights, there is something about children that makes even the most
bloodthirsty tyrants willing to draw a line and make way for the causes of peace and
justice. It is fair to say that the Convention on the Rights of the Child (CRC) is widely
hailed as a success by both the UN, and the contracting states parties.
There are a number of aspects to the Convention that make it unique among human
rights instruments. Its negotiation process was open and participatory and this led
to various different legal systems influencing the process and the provisions of the
final text. The text therefore lays down binding, universalstandards and
obligationsthat all children, everywhere must be guaranteed at all times. These rights
are designed to protect the dignity and sound development of the child. It deals with
such various topics as health care, access to education, legal protections and social
services. The value of having international standards in these areas is enormous.
Another noted innovation in the Convention is that it was the first international
instrument to take a more holistic approach to the problem it was addressed to solve.
It covers not only strict international legal provisions but also civil liberties, political
rights, economic provisions and is culturally and socially sensitive.
protection of the rights laid down therein.
The case for a specific instrument for children: While it may seem obvious today,
it was not initially clear to all parties that a separate convention with the purpose of
protecting children was necessary. Many thought that such rights were adequately
protected under general human rights law. It was however possible to make a special
case for children, and have a specific legal instrument dealing solely with their
protection approved by the General Assembly.
UNICEF has recently articulated the most important elements of the argument for
affording children special protection. These place emphasis on the individuality of
children and their equal status as citizens. Children are too often regarded as
secondary, or ancillary to their parents and by the Convention’s definition, which
classes all people below the age of 18 as children, literally billions of otherwise
ignored people are directly addressed. Protecting this portion of society is a major
investment in the future wellbeing of the earth. Children are also one of the most
vulnerable groups ofsociety. They begin life completely dependent on others of
theirsurvival and only through proper care and nurturing do they become self-
sufficient. Such care is naturally provided by parents in the family but where this is
not occurring, there is a positive duty on society not just to refrain from harming
such children, but to step in and provide the care and guidance they need. Also, due
to the fact that children are still developing mentally and physically, shortcomings
in society such as poverty, poor health care, hunger and malnutrition, polluted water
and an unclean environment all disproportionately harm children.
Governments are also seen as having a greater duty to children than to other groups
of citizens. This again stems from children’s greater vulnerability and reliance on
government. The policies of governments have a disproportionate effect on the
wellbeing of children, especially if they fall short of acceptable standards. However,
in many parts of the globe, not only is these extra duties not taken seriously, but
children are not taken into account at all in designing policies. This is partly due to
the lack of a direct voice for children in politics. Traditional political thinking gives
political rights to people generally by vote, and this is universally reserved for those
above the age of majority, usually 18. If policies are to become more child friendly,
than a serious attempt must be made to listen to children’s views in the areas that
affect them most. While the idea is extremely basic, it is still not taken completely
seriously by governments and as a method of social change is still in its infancy.
It has also been recognised that the massive societal changes that are occurring
globally are having the harshest effects on children. Issues such as the breakdown
of the traditional family structure, globalisation, a lack of employment and economic
stability and the shrinking of welfare programs are leaving children without the
security that previous generations could take for granted. While children are
extremely adaptable, efforts should be made to minimise the difficulties they will face
from social upheaval.
Article 12 and the right to participation: It is therefore with these arguments in
mind that I will examine the contents of the Convention. There are a number of
themes, some similar others different to the other conventions on human rights. The
document is infused with the basic principle of human dignity. It isshocking to
acknowledge the degree to which the dignity of children 33 Compiled by Rahul Kr.
Singh isset aside or compromised in many situations.
The role of the family is placed at the centre of the child’s wellbeing. The family is
recognised as the natural provider and safe-guarder of children’s wellbeing and
States must protect the child’s right notto be separated from its family unless it is
judged in the child’s best interests. Article 5 ensures respect for parents or other
family or legal guardians of the child and they role they play in guiding children. The
child’s identity and family name are protected in Article 8. Immigration and
Nationality rules have to pay respect to a child’s need to have contact with both
parents if they live or are in another country.
Under Article 12, children are also granted a new voice in decision making that
affects them. The views of children who have the capacity to form an opinion and
make it known must be listened to and given a weight appropriate to the age and
maturity of the child. In judicial hearings and other legal proceedings that directly
affect a child, the child must be given an opportunity to have its voice heard and its
views taken into consideration. The effects of Article 12 will mean different things
depending on the exact circumstances of the case. What it requires is that children
are involved in processes that will affect them. This is perhapsthe provision of the
Convention with the greatest capacity to affect genuine changes in all societies, both
developed and undeveloped. To make it a reality, all aspects of decision making and
policy formulation that effect children, from education, to health care, to housing
rights, will have to be radically overhauled if this provision is given itsfull meaning
under the Convention.
Article 12 has been declared by the Committee on the Rights of the Child to be one
of the guiding principles of the Convention. All acts to give effect to or implement the
Convention should try to incorporate this principle of participation.
The Convention at all times remains true to the idea that children’s capacities grow
and evolve but are not yet fully developed. While children have a right under the
Convention to have their views taken into account, it does not mean that the child
will be able to make important decisions that will have a great effect on his or her
life. While the child’s opinion can influence decisions, the decisions willstill bemade
by the adult party authorised to do so. As well as having the right to express an
opinion, the child must also be free to do so without the fear of pressure or
manipulation. The child cannot be forced to give an opinion if they do not want to,
or if doing so will not be in their best interests. Also, the process must be carried out
in good faith, with a genuine view being listened to, and not as a publicity act or
other form of manipulation that the child has little or no chance of influencing.
Children should also be given the legal right to bring civil actions and other legal
proceedings in their own name, a right that is often reserved to their guardians or
parents. The rights granted to children under Article 12 are seen as necessary for a
proper enjoyment of the wider right to freedom of expression provided by other rights
instruments. The right to free expression is seen as the basis of all democracy and
fair government and without it, there is no civil or political justice possible. This is
why Article 12 is seen as so vital. It is the right needed by children in order to benefit
from and use their right to free expression. It means that children are given the
information necessary to form a proper opinion and then being given the opportunity
to express this view in a manner that is fair and just to them.
Conclusion: Article 15 of the Convention grants children the right to assemble and
protest peaceably. This is clearly a political right that is being granted and in
conjunction with Article 12, a concerted effort to safeguard the participation of
children not only in matters that affect them individually, but also at a wider political
level. Democratic societies are always enhanced when the rights of the democracy
are extended to cover a greater proportion of the people living in the society. From
the extension of rights to ever more classes, to the lowest socio-economic groups, to
former slaves, to women, all have resulted in greater freedom and justice for all. A
genuine attempt to extend as much as possible to children will have a similar effect.
If the States Parties really do go beyond lip service, and genuinely promote the Article
12 right of children to participate in all decision-making processes that have a
significant impact on them, the democracy and justice of oursocieties will be greatly
enhanced. This is not the situation at the moment. While many countries have
increased the rights of participation of children, many more have not. Even in the
most developed and open societies, the view that children have political rights and
interests and are capable of forming and expressing opinions on them are not
widespread. It actually will sound funny to many prominent and reasonable people.
The conclusion of this answer that the full meaning of Article 12 requires a real
political voice to be given to children and to be presented to them in a manner they
can utilise. It does not say that children have the maturity to make such important
decisions, but their views should genuinely be taken into account when making
decisions that affect them. Only in this way can our society’s extent to children the
democratic rights taken for granted by the rest of us and all governments, even the
most open and advanced, have a long way to go in providing this right.

The UNCRC is a human rights treaty that sets the political, civil, economic, social,
health and cultural rights of children.
• It is an international agreement that is legally binding on the members.
• It consists of 54 articles that spell out various children’s rights and also the
measures governments should take in order to make these rights available to
children.
• The CRC was adopted by the United Nations in 1989. It entered into force in
1990 after receiving the minimum of 20 ratifications.
• It has been ratified by all members of the UN except for the United States. It
is the most widely ratified human rights treaty in the history of the world.
• Under the articles of the convention, all parties to it are required to ensure
that children’s basic needs are fulfilled and they are able to reach their full
potential.
Rights of the Child
The convention identifies a child as a human being below the age of 18. The CRC
acknowledges that every child is entitled to fundamental rights, and some of the most
important rights are as follows:
1. Right to life, survival and development.
2. Right to education that facilitates them to reach their full potential.
3. Right to protection from abuse, violence or neglect.
4. Right to express opinions and be heard.
5. Right to be raised by or have a relationship with their parents.
What are the 4 core principles of the Convention on the Rights of the Child?
 1. Non-discrimination
2. Right to life, survival and development
3. Best interests of the child
4. Respect for the child’s views
Brief Timeline of Child Rights Movement
The first time in modern history children’s rights was given importance was when
the League of Nations adopted the Geneva Declaration on the Rights of the Child in
1924. This was drafted by the Eglantyne Jebb, who founded the Save the Children
Fund.
• UNICEF was founded in 1946.
• The Universal Declaration of Human Rights passed in 1948 by the UNGA in
which an article mentions mothers and children.
• The Declaration of the Rights of the Child adopted by the UNGA in 1959.
• The ILO adopts a convention that sets out 18 as the minimum age for people
to undertake hazardous work.
• The Declaration on the Protection of Women and Children in Emergency and
Armed Conflict adopted in 1974.
• The UNGA declares 1979 as the International Year of the Child.
• In 1989, the UNCRC is adopted.
• CRC enters into force in 1990.
• As of 2015, all members have ratified the convention excepting for the US.
UNCRC Optional Protocols
Three optional protocols have been added to the convention. They are mentioned
below:
1. Protocol asking governments not to enlist children below the age of 18 into the
armed forces (2000).
2. Protocol asking governments to prohibit child pornography, child prostitution,
and the sale of children into slavery (2000).
3. Protocol that enables children who faced violation of their rights to complain
directly to the UN Committee on the Rights of the Child (2011).
It is this Committee that monitors the implementation of the convention.
Additionally, UNICEF plays an important role in the working of the UNCRC.

India and CRC

India ratified the convention in 1992 agreeing in principle, all articles except with
certain reservations on issues relating to child labour. In India, there is a law that
children under the age of 18 should not work, but there is no outright ban on child
labour, and the practice is generally permitted in most industries except those
deemed hazardous.

Constitutional provisions which protect the rights of children in India

The constitution ensures the rights and protection of children through its various
provisions. Children on the account of their sensitive age and immature age need
special care and protection. They have specific rights and legal entitlements that are
being recognized nationally and internationally. The constitution has recognized the
rights of children to a great extent and included many articles dealing with the
compulsory and free education, liberty and development in childhood, non-
discrimination in educational spheres and prohibition of their employment in
factories, mines and hazardous conditions.
The legal provisions are:-
ARTICLE 14 – RIGHT TO EQUALITY
According to this article, the State shall not deny to any person the equality before
the law or the equal protection of laws within the territory of India.
Citizen of India including children must be treated equally before the law and must
be given equal protection by law without any discrimination or arbitrariness. This
right which is provided in the Indian Constitution protects the rights of children so
that their dignity and integrity as a child is not exploited. Children being vulnerable
have more chance to be treated unequally in the Indian society. Article 15 of the
Indian Constitution prohibits discrimination. In Article 15(3), nothing in this Article
shall prevent the State from making any special provision for women and children.
It is very clear from Article 15(3) that “special provision” does not mean unequal
treatment but it is established for the well being and development of the children in
India.
ARTICLE 21A –RIGHT TO EDUCATION
According to this article, The State shall provide free and compulsory education to
all the children of the age of six to fourteen years in such manner as the State may
by law, determine
The Constitution (Eighty-sixth Amendment) Act,2002 inserted Article 21A in the
Constitution to provide free and compulsory education of all the children in the age
group six to fourteen years as a Fundamental Right. There have been many
backlashes in providing education to all the children in the state. There are many
reasons for the same. The right to education is reflected in international law in
Article 26 of the Universal Declaration of Human Rights and Article 13 and 14
International Covenant on Economic, Social and Cultural Rights.
Most importantly these articles ensure education to all the children irrespective of
religion, caste, gender and financial condition. This article makes sure that no child
is deprived of his/her basic education. Everyone shall be provided with elementary
education.
ARTICLE 24 –PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES
According to this Article, No child below the age of fourteen shall be employed to
work in any factory or mine or engaged in any other hazardous employment.
Hazardous conditions may include construction work or railway. This article does
not prohibit and harmless work. This Article provides the regulation and prohibition
of child labour in India. Child Labour is defined as the work which deprives children
of their childhood, potential and their dignity; it is something which causes a threat
to their physical and mental development. UNICEF estimates India with such a high
population has a high rate of child labourers. India, after its independence from the
colonial rule, has passed many constitutional protections and laws on child labour.
DIRECTIVE PRINCIPLES OF STATE POLICES
There have been many provisions in the Directive Principles of state policies which
specify how the state is responsible for the protection of rights of children.
ARTICLE-39 – Certain principles of the policy to be followed by the state.
Article 39(e) states that the health and strength of workers, men and women, and
the tender age of children are not forced by economic necessity to enter avocation
unsuited to their age or strength.
Child Labour is one of the social evil that is forced by economic necessity; it is the
responsibility of the state to ensure that no child is subjected to any physical or
mental abuse.
Article39 [1](f) states 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.
This provision also protects childhood and provides opportunities and facilities to
grow with the safe explosion.
ARTICLE 45 This provision is for early childhood care and education children below
the age of six years.
According to this provision, the State shall Endeavour to provide early childhood care
and education for all the children until they complete the age of six years. According
to this Act of the Indian Constitution, the state shall protect the child and is
responsible for the development within them. The state shall ensure the safe growing
environment, where their childhood can be experienced by themselves without any
external threat. After that, it is the responsibility of the state to provide them with
free and compulsory education
No matter how the condition of the child is, even if they are not protected by their
own parents or they are denied with their rights by their own parents. The State has
to take strict measures for the well being of the child.
FUNDAMENTAL DUTIES
Fundamental duties refer to the basic obligations of a citizen in India. It contains
about 11 duties which are to be followed by the citizen of India.
It is defined as the moral obligation of all citizens to help promote a spirit of
patriotism and to uphold the unity of India.
I ARTICLE-51A(k) It shall be the duty of every citizen of India who is a parent or
guardian to provide opportunities to provide education for his child or, as the case
may be, ward between the age of six and fourteen years. Through this provision, the
Constitution strictly mentions the providing of education as the duty of the parent
as it is for the future and development of the country.
Laws which bind the protection of the child in India
INDIAN PENAL CODE 1860
According to Section 82 of the Indian Penal Code, nothing is an offence which is an
offence done by a child under the age of seven years and Section 83 states that,
nothing is an offence which is done by a child above seven years of age and under
twelve.
As in this age, the children will not attain the maturity to distinguish between what
is right and what is wrong. The child will not be aware of the consequences of his/her
conduct.
He is incapable of understanding good and bad, which means he/she is totally Dole
incapx.
Section 305 of the Indian Penal Code states the Abetment of Suicide if any person
under the age of eighteen years of age commits suicide and whoever abets them to
does such an act shall be punished under the punishments under the act.
Section 315 refers to Infanticide in the Indian Penal Code which comes in the
category of crimes against children. This Section of the Indian Penal Code provides
punishment for the act of killing an infant. Here, Section 316 of the Indian Penal
Code states Foeticide, whoever does the act of causing death of quick unborn child
by act amounting to culpable homicide
Section 317 states the exposure and Abandonment of a child under twelve years, by
parent or person having care of it. The exposure and abandonment by a father or
mother of a child under the age of 12 will be punished for the same.
Section 369 of the Indian penal code states the punishment of kidnapping a child
under the age of ten with an intention to steal from its person.
Section 366A of the Indian Penal Code states the punishment for the Procreation of
minor girls (for inducement to force or seduce, to illicit intercourse). This section
provides the action against the said crime to ensure the protection of the girl child
in India.
Section 372 and 373 states the punishment for buying, selling or attain the
possession of a person under the age of eighteen at any age employed or used for
the purpose of prostitution or illicit intercourse with any person or for any unlawful
purpose.
PROHIBITION OF CHILD MARRIAGE ACT 2006
The Government of India introduced the Prohibition of Child Marriage Act 2006 after
the repeat of the Child Marriage Restraint Act. The main aim of this Act is to prevent
child marriage. This Act ensures that child marriage is completely eradicated from
society. A child according to this Act is female who has not attained the age of
eighteen and a male who has not attained the age of twenty-one.
APPRENTICES ACT 1961
The main purpose of this Act was to prohibit the apprenticeship or training of
children under the age of 14 years and for other minors there require a contract
between the employer and the guardian. A person is qualified to be engaged in
apprentice if he is not less than fourteen years and satisfies such standard of
education and physical fitness.
JUVENILE JUSTICE ACT 2015
This Law, brought in compliance of the Child Rights Convention repealed the earlier
Juvenile Justice Act of 1986. This Act was further amended in 2006 and 2010. This
Act was again repealed in 2015, This Act provides a special approach to the
protection, treatment and development of children, this law mentions how a child
should be protected in a home, without a home, begging etc…Under section 15 of
this Act special provision had been made to tackle child offenders committing
heinous offences under the age group of 16-18 years. The way in which a child should
be protected from all the external threats.
THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT 1986
This prohibits the engagement of children in certain employment which is hazardous
to the child who can affect the child mentally and physically. It regulates the
conditions of work of children in other employment.
THE ORPHANAGES AND OTHER CHARITABLE HOMES (SUPERVISION AND
CONTROL) ACT 1960
This Act provides the supervision and control over the orphanages, homes for the
abandoned women.
THE GUARDIAN AND WARDS ACT 1890
This Act deals with the qualification, appointment and removal of guardians of
children by the courts and is applicable to all the children irrespective of religion.
When it comes to divorce there exists confusion about with whom the child should
go with. It is the wish of the child that the court consider first, there can be influences
on the child due to the factor of their age and hence after the pleading by both the
parties the court comes to a conclusion where the court ensures the protection of
the child.
THE HINDU ADOPTION AND MAINTENANCE ACT 1956
This Act generally dealt with the provisions for a Hindu adult to adopt a child and
the Hindu law of maintenance to wives, parents and children.
PROBATION OF OFFENDERS ACT 1958
This law lays down the restrictions on the imprisonment of offenders fewer than
twenty-one years of age. This Act is in order to prevent the conversion of young
offenders to obstinate criminals. Since there are chances for their transformation
when they are subjected to jails along with criminals.
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT 2012
The POCSO Act, 2012 is a law to provide for the protection of children from the
offences of sexual assault, sexual harassment and pornography while safeguarding
the interest of children in every stage of the judicial process by incorporating child-
friendly mechanisms.
The Act provides for Special courts that conduct the trial in-camera and without
revealing the identity of the child.
Landmark decision on the rights of children
Children by definition are unable to petition the court themselves, they have to rely
on the parents patria role of the state. The needs of the children were responded by
the court through public interest litigation, in the conditions where some
improvement is significant like in institutions, prisons, illegal confinements,
treatment of mentally retarded children and handicapped children, child labour,
child marriage, adoption, juvenile justice, prevention trafficking of young girls, the
welfare of children of the prostitutes, prohibition of corporal punishment in schools
and sex-selection. There has been a decision made by the court on almost all the
matters which is related to a child. The court has seen the matters through the lens
that all the decisions made were concerned and made for the children all over the
country.
M.C Mehta v. State of Tamil Nadu
The judgment passed states the direction to prohibit child labour in hazardous
conditions; the petitioner was concerned about the high rate of child labour in
hazardous conditions in the Match factories of Savakis in Kamraj district of Tamil
Nadu. The judgment gave out the visions of the constitution and also linked between
child labours with poverty, the judgment also stated that there has been no proper
eradication of child labour by the state,
Sanjay Suri v. Delhi administration
The court laid down orders to transfer some guilty officers and laid down the rules
to protect children in jails. Juvenile undertrials were the subject of Sanjay Suri’s
petition. Many children were sent to jail despite the prohibition in the children’s Act.
The Juvenile were kept together with habitual and other adults where they were
brutalized and made to do undesirable tasks,
Gaurav Jain v. Union of India
The Supreme Court held that segregating the children of prostitutes would not be in
their interest. The Supreme Court held that the children of the prostitute have the
right to equality of opportunity, dignity, care and protection and rehabitalised so as
to be a part of the mainstream of social life without any pre-stigma attached on them.
Vishal Jeet v. Union of India
Several directions were issued to end the sexual exploitation of children. The court
issued directions to the state government to set up rehabilitation homes for the
children found begging in the streets and also minor girls pushed into ‘flesh trade’ to
protective homes.
Sheela Barse v. the Secretary Children’s Aid Society & Ors
The petition was filed in public interest with regard to improper functioning of
childcare institution in Mumbai, The Supreme Court directed that in no case should
a child kept in jail and a central law must be enacted to bring uniformity in the
juvenile justice system.
Kishan Pattnayak v. State of Orissa
Poor people were forced to sell children to buy food. The Orissa government was
compelled to take several welfare actions. The petitioner wrote a letter to the Supreme
court of India bringing to the court’s notice the extreme poverty of the Kalahandi in
Orissa where hundreds of people were dying due to starvation as a result they were
forced to sell their children. This case has taken the issue of the lack of food and
poverty. In this judgment, the Supreme Court took significant steps in implementing
irrigation projects in order to reduce drought and certain measures were taken in
order to ensure fair selling prices.
Sarita Sharma v, Sushil Sharma
The court held that in the issue relating to custody of children, paramount
consideration should be given to the welfare of the children.
Unnikrishnan J.P &Ors v. State of Andhra Pradesh
The court held that the right to education is implicit in the right to life. The Judgment
on
This case expanded the Right to education being enshrined to Right to Life. In 2002,
by the 86th Amendment of the Constitution inserted Right to Education within Right
to life.

Q. Discuss the constitutional provisions to protection of the rights of women.

The Constitution of India prohibits discrimination based on sex but it equally directs
and empowers the government to undertake special measures for women. Though
the position of women has improved in the last four decades, butstill they are
struggling tomaintain their dignity and freedom. Presently Indian women are facing
the toughest time mentally and physically, mainly due to unawareness and lack of
knowledge of legal and constitutional rights of a woman. The Constitution provides
many protection rights for women such as Protective discrimination in favour of
women, Right to freedom of women, Right of women against exploitation, Rights of
women under directives and political representations of women. All these rights are
explained below.
PROTECTIVE DISCRIMINATION AND WOMEN: The Preamble to the Constitution
resolved to secure all its citizens, including equality ofstatus and opportunity while
Articles 14 to 18 and 39 provide for Right to equality and non- discrimination among
men and women. Article 14 ensures that the state shall not deny to any person
equality before law. It prohibits class legislation but permits reasonable
classification. This is a very important provision which provides equal legal
protection to women against any women-based crime.
 Article 15 (1) prohibits discrimination against any citizen based on religion, race,
caste, sex or place of birth while Article 15 (3) permits ‘protective discrimination’ in
favour of women according to which state can make special provision for women and
the scope of this article is wide enough to cover the entire range of state activity
including employment. Article 16 of constitution of India ensures equal employment
opportunity to every citizen of India. Again, in Dattatreya Motiram v. State of
Bombay, AIR 1953 Bombay 311 Chief Justice Chagla held: As a result of the joint
operation of Article 15(1) and Article 15(3) the state could discriminate in favour of
women against men, but it could not discriminate in favour of men against women.
RIGHT TO FREEDOM OF WOMEN: Articles 19 to 22 of The Constitution of India
provide a detailed scheme of Right to Freedom. Article 19 (1) guarantees 6 freedoms
(speech and expression, assembly, association or unions, movements, residence,
profession and occupation) for citizens with reasonable restrictions and Article 21
provides for Right to life and personal liberty of each and every person in India which
includes Right to live with human dignity, right to livelihood, right to work, right to
privacy, right against sexual harassment etc. The Indian Parliament also enacted The
Indecent Representation of Women (Prohibition) Act, 1986 which prohibits indecent
representation of women through advertisements, books, writings, paintings, figures
films or any other manner. The Supreme Court also emphasized the need to provide
a life of dignity to the sex workers in our country by giving them some technical skills
through which they can earn their livelihood instead of by selling their bodies.
RIGHTS OF WOMEN AGAINST EXPLOITATION: Right against exploitation
isrecognized under Article 23 and 24 of the Constitution of India. Article 23 prohibits
“traffic in human beings and beggar and other similar forms of labour”. The
expression “traffic in human beings is evidently a very wide expression including the
prohibition of traffic in women for immoral or other purposes. Also, the Suppression
of Immoral Traffic in Women and Girls Act, 1956 has been enacted with the object of
inhibiting or abolishing the immoral trafficking of women and girls. Articles 21 & 23
also impose the duty on state to identify, release and rehabilitate freed bonded
labourers. In Gaurav Jain vs. Union of India, the Supreme Court held that the
children of the prostitutes have the right to equality of opportunity, dignity, care,
protection and rehabilitation so asto be part ofmainstream social life.
RIGHTS OF WOMEN UNDER DIRECTIVES: Directive principles of State policy under
Articles 36 to 51 of the Constitution of India are fundamental in the governance of
the country and it shall be the duty of the state to apply these principles in making
laws. Under these various rights of women have been implemented through
legislations. The Directive under Article 39(a) provides that the citizens, men and
women equally have the right to an adequate means of livelihood and Article 39(d)
ensures that there is equal pay for equal work for both men and women. The
Parliament has enacted the Equal Remuneration Act, 1976 and to implement Article
39 (d). Article 42 of the Constitution provides that the state shall make provision for
securing just and humane conditions for work and maternity relief and for this
purpose the Maternity Benefit Act, 1961 was enacted. 41 Compiled by Rahul Kr.
Singh Under forty-second amendment Article 51A (e) seeks to renounce practices
derogatory to the dignity of women. This provision seeks to do away with medieval
feudal practices like sati, child marriages and dowry.
POLITICAL REPRESENTATIONS OF WOMEN: Article 40 of the Constitution which
lay down that the state shall take steps to organize village panchayats and endow
them with such powers and authority as may be necessary to enable them to function
as units ofself-government. To realize the Directive the 73’d and 74'^ Constitutional
Amendments had sought to ensure a certain proportion of women as chair persons
of panchayats. According to Article 243- D (3) and 243-T (3), not less than one third
of the total number of seats to be filled by Directive election in every
Panchayat/Municipality shall be reserved for women (including SCs AND STs). This
opportunity of being a part of local level arbitration process has improved the social
conditions of women in village areas.
Q. Write a critical note on International Convention on Elimination of
Discrimination against women, 1979.
The United Nations adopted the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) on 18th October 1979. In other words, this
convention can be described as an international bill of rights for women. This bill
had 30 articles to define discrimination against women. CEDAW established an
agenda to end the discrimination between both of the sexes and provide equality to
men and women both by ensuring equal access to education, health, opportunities,
and social and political life. It is the only human right treaty which proclaims the
reproductive rights of women. CEDAW was instituted on 3 September 1981 and 189
states ratified it. It was one of the most ratified international treaties. The prime focus
of CEDAW was to condemn discrimination against women in all forms. In 1994 the
International Conference on Population and Development in Cairo Clearfield
questioned the concept of a few important terms for women like women
empowerment, gender equality and reproduction health etc. Although it was not a
part of CEDAW it took 13 years to talk on these important issues associated with the
life of women. So, a programme for empowerment and autonomy of women was
initiated. The aim of this programme was to improve the political, social, economic
and health status of women.
What is discrimination against women according to CEDAW: As per the Convention,
the discrimination again women includes “any distinction, exclusion or restriction
made on the basis of sex which has the effect or purpose of impairing or nullifying
the recognition, enjoyment or exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any otherfield.”
What is the importance of CEDAW: After so many years of CEDAW, it is still
important because it ensures that female human should get equal access to all the
resources and facilities. It talks briefly about the discrimination against women
based on their sex. CEDAW talks about the substantive equality between men and
women which is still not visible in many countries of the world. In male dominating
society, CEDAW talks about equal rights which are the need of time in the 1990s
and in 2019 as well.
The impact of CEDAW: CEDAW was adopted by the United Nations 30 years ago and
since then it’s working to advocate equality to the women in the world. The impact
of CEDAW is slow and hardwon on the lives of many women. But CEDAW is like a
ray of hope for women who face discrimination. Here we need to be agreeing to this
that CEDAW couldn’t destroy the gender-based discrimination butit gets success to
declare sex discrimination as a human right violation.
India’s stand on CEDAW: India ratified the Convention of the Elimination of all forms
of Discrimination against Women (CEDAW) treaty in 1994. India’s constitution also
gives equal rights to all its citizens; male or female. Apart from this India have many
laws which help the Indian women to lead a lift of equality. But to consider women
and men as equal the Indian society will have to change their mindset as at rural
areas still; women need to struggle a lot.
Q. Discuss the powers and functions of National and State Human Rights
Commissions established under the Protection of Human Rights Act, 1993.
Section 3 of the Protection of Human Rights Act, 1993 provides that the Central
Government shall constitute a body known as the ‘National Human Rights
Commission’ to exercise powers confirmed upon and assigned to it under the said
act. The National Human Rights Commission (NHRC) of India is an autonomous
public body constituted on 12'h October 1993 under the Protection of Human Rights
Ordinance of 28th September 1993. It was given a statutory basis by the Protection
of Human Rights Act, 1993 (TPHRA). The NHRC is the national human rights
institution, responsible for the protection and promotion of human rights, defined by
the Act as “rights relating to life, liberty, equality and dignity of the individual
guaranteed by the Constitution or embodied in the International Covenants”.
Composition of the Commission:
1. NHRC is an autonomous institution consisting of
2. • A Chairperson who has been the Chief Justice of the Hon’ble Supreme Court
of India
3. • One Member who is, or has been, a Judge of the Supreme Court of India •
One Member who is, or has been, the Chief Justice of a High Court
4. • Two Members to be appointed from among persons having knowledge of, or
practical experience in, matters related to human rights.
2. The Chairperson of the National Commission for Minorities, National
Commission for the Scheduled Castes, National Commission for the Scheduled
Tribes and the National Commission for Women are deemed members of the
Commission.
3. There is a Secretary General who is the Chief Executive Officer of the
Commission and exercises and exercises such powers and discharges such
functions as are delegated to him by the Commission or Chairperson as the case
may be. President appoints the chairperson and members of the NHRC on the
recommendation of a six member committee consisting of (i) The Prime Minister
(chairperson) (ii) The Home Minister (iii) The Speaker of the Lok Sabha (iv)The
Leader of the Opposition in the Lok Sabha (v) The Deputy Chairman of the Rajya
Sabha (vi)The Leader of the Opposition in the Rajya Sabha.
The six divisions are: I. The Administrative Division II. The Law Division III. The
Training Division IV. The Policy, Research and Project Division V. The
Investigation Division VI. The Information and Public Relation Division
Functions of NHRC: According to the protection of Human Rights Act, 1993,
below are the functions of NHRC:
1. NHRC investigates grievances regarding the violation of human rights either
suo moto or after receiving apetition.
2. It hasthe power to interfere in any judicial proceedingsinvolving any allegation
of violation of human rights.
3. It can visit any jail or any other institution under the control ofthe State
Government to see the living conditions of the inmates and to make
recommendations thereon.
4. It can review the safeguards provided under the constitution or any law for the
protection of the human rights and can recommend appropriate remedial
measures.
5. NHRC undertakes and promotes research in the field of human rights.
6. NHRC works to spread human rights literacy among various sections of society
and promotes awareness ofthe safeguards available forthe protection ofthese
rightsthrough publications, media, seminars and other means.
7. The Commission takes an independent stand while providing opinions for the
protection of human rights within the parlance of the Constitution or inlaw for
the time being enforced.
8. It has the powers of a civil court and can grant interim relief.
9. It also has the authority to recommend payment of compensation ordamages.
10. NHRC credibility is duly reflected in large number of complaints received every
year and the trust reposed in it by the citizens.
11. It can recommend to both the central and state governments to take suitable
steps to prevent the violation of Human Rights. It submits its annual report to
the President of India who causes it to be laid before each House of Parliament.
Powers Vested with the Commission Relating to Inquiries: While inquiring
into complaints under the Act, the Commission shall have all the powers of a civil
court trying a suit under the Code of Civil Procedure, 1908, and in particular the
following, namely;
1. Summoning and enforcing the attendance of witnesses and examining them
on oath;
2. discovery and production of any document;
3. receiving evidence onaffidavits;
4. requisitioning any public record or copy thereof from any court or office;
5. issuing commissions for the examination of witnesses or documents;
6. any other matter which may be prescribed
Working of the NHRC:
1. Headquarter of the commission is located at Delhi.
2. The commission is vested with the power to regulate its own procedure.
3. It has all the powers of a civil court and its proceedings have a judicial
character.
4. It may call for information or report from the central or any state government
or any other authority subordinate thereto.
However, the commission hasits own staff to investigate into complaints of
human rights violations. It is also empowered to utilize the services of any officer
or investigating agency of the central government or any state government for the
purpose. The commission also cooperates with various NGOs for the information
regarding human rights violations. The commission 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:
1. It may recommend to the concerned government or authority to make payment
of compensation or damages to the victim;
2. It may recommend to the concerned government or authority the initiation of
proceedings for prosecution or any action against the guilty public servant;
3. It may recommend to the concerned government or authority for the grant of
immediate interim relief to the victim;
4. It may approach to the Supreme Court or the high court concerned for the
necessary directions, orders or writs.
In order to make NHRC more effective, its powers could be increased in various
ways to increase its effectiveness and efficiency in delivering justice to the victims.
The commission should be empowered to provide interim and immediate relief
including monetary relief to the victim. In addition, the commission should be
empowered to punish the violators of the human rights, which may act as
deterrent to such acts in the future. The interference of the government and other
authorities in the working of commission should be minimum, as it may influence
the working of commission. Therefore, the NHRC should be given power to
investigate into the cases related to human rights violation by the members of the
armed forces
Limitations of NHRC:
1. NHRC does not have any mechanism of investigation. Inmajority cases, it
asksthe concerned Central and State Governments to investigate the cases of the
violation of Human Rights
2. It has been termed as ‘India’s teasing illusion’ by Soli Sorabjee (former
Attorney-General of India) due to its incapacity to render any practical relief to
the aggrieved party.
3. NHRC can only make recommendations, without the power to enforce
decisions.
4. Many times,NHRC is viewed as post-retirement destinationsforjudges and
bureaucrats with political affiliation moreover, inadequacy of funds also hamper
it’s working.
5. A large number of grievances go unaddressed because NHRC cannot
investigate the complaint registered after one year of incident.
6. Government often out rightly rejects recommendation of NHRC or there is
partial compliance to these recommendations.
7. State human rights commissions cannot call for information from the national
government, which meansthatthey are implicitly denied the power to investigate
armed forces under national control.
8. National Human Rights Commission powersrelated toviolations of human
rights by the armed forces have been largely restricted.
Suggestions:
1. There is need for complete revamping of NHRC to make it more effective and
truly a watchdog of human right violations in the country.
2. NHRC efficacy can be enhanced by government if commission decisions are
made enforceable. 3. There is need to change in composition of commission by
including members from civil society and activists.
4. NHRC needs to develop an independent cadre of staff with appropriate
experience.
5. Many laws in India are very old and archaic in nature by amending which
government can bring more transparency in regulations.
6. To improve and strengthen the human rights situation in India, state and non-
state actors need to work in tandem.
State Human Rights Commission
The Protection of Human Rights Act of 1993 provides for the creation of State
Human Rights Commission at the state level. A State Human Rights Commission
can inquire into violation of human rights related to subjects covered under state
list and concurrent list in the seventh schedule of the Indian constitution
Composition: Human Rights (Amendment) Act, 2006 consists of three members
including a chairperson. The chairperson should be a retired Chief Justice of a
High Court. The other members should be:
1. A serving or retired judge of a High Court or a District Judge in the state with
a minimum of seven years’ experience as Districtjudge.
2. A person having practical experience or knowledge related to human rights.
The Governor of the state appoints the chairperson and other members on the
recommendations of a committee consisting of the Chief Minister as its head, the
speaker of the Legislative Assembly, the state home minister and the leader of the
opposition in the Legislative Assembly. The chairman and the leader of the
opposition of legislative council would also be the members ofthe committee, in
case the state has legislative council. The tenure of the chairperson and members
is five years or until they attain the age of 70 years, whichever is earlier. After the
completion of their tenure, they are not eligible for any further employment under
the state government or the central government. However, chairman or a member
is eligible for another term in the commission subject to the age limit.
Removal: Removal is done by president on grounds of bankruptcy, unsound
mind, infirmity of body or mind, sentenced to imprisonment for a crime, or
engagesin paid employment. He can also be removed for proved misbehaviour or
incapacity if SC inquiry finds him guilty. They can resign by writing to governor.
Functions of the Commission: According to the protection of Human Rights Act,
1993; below are the functions of State Human Rights Commission:
1. Inquire suo motu or on a petition presented to it, by a victim, or any person on
his be into complaint of violation of human rights or negligence in the prevention
ofsuch violation by a public servant.
2. Intervene in any proceeding involving any allegation of violation of human
rights before a Court with the approval of such Court.
3. Visit any jail or any other institution under the control of the State Government
where persons are detained to study the living conditions of the inmates and
make recommendations thereon
4. Review the safeguards provided by or under the constitution of any law for the
time being in force for the protection of human rights and recommend measures
for their effective implementation.
5. Review the factors, including acts of terrorism that inhibit the enjoyment of
human rights and recommend appropriate remedial measures.
6. Undertake and promote research in the field of human rights.
7. Spread human rights literacy among various sections of society and promote
awareness of the safeguards available for the protection of these rights.
8. Encourage the efforts of Non-Governmental organizations and institutions
working in the field of human rights. 9. Undertake such other functions as it may
consider necessary for the promotion of human rights.
Working of the Commission
1. The commission is vested with the power to regulate its own procedure.
2. It has all the powers of a civil court and its proceedings have a judicial
character.
3. It may call for information or report from the state government or any other
authority subordinate thereto.
4. It has the power to require any person subject to any privilege which may be
claimed under any law for the time being in force, to furnish information on points
or matters useful for, or relevant to the subject matter of inquiry. The commission
can look into a matter within one year of its occurrence.
Criticism: State Human Rights Commission has limited powers and its functions
are just advisory in nature. The commission does not have power to punish the
violators of human rights. It cannot even award any relief including monetary
relief to the victim. The recommendations of State Human Rights Commission are
not binding on the state government or authority, but it should be informed about
the action taken on its recommendation within one month.
Q. Discuss object of the International Covenants on Political and Civil
Rights, I966 highlighting its important provisions.
International Covenant on Civil and Political Rights (ICCPR) elaborates the
political and civil rights identified in the Universal Declaration, which include the
rights to life, privacy, fair trial, freedom of religion, freedom from torture and
equality before the law.
Some of the rights can be suspended in times of ‘public emergency which
threatens the life of the nation’, provided that the derogation will not involve
discrimination on grounds of race, colour, sex, language, religion orsocial origin.
If a country wants to ‘opt out’ in this way, it must immediately inform the
Secretary-General of the United Nations. States of emergency thus declared
unfortunately often create the conditions under which gross violations of human
rights occur. In no circumstances, in peace or war, is derogation permitted under
the Covenant from the following fundamental rights: the rights to life, recognition
before the law, freedom from torture and slavery, freedom of thought, conscience
and religion, the right not to be imprisoned solely for inability to fulfill a
contractual obligation, and the right not to be held guilty for committing a crime
which did not constitute a criminal offence at the time it was committed.
Means provided for implementation of Human Rights under the ICCPR:
Article 28 of the Covenant provides for the establishment of a Human Rights
Committee consisting of eighteen independent experts, nominated and elected by
States Parties to the Covenant, who serve in their personal capacities, which
meansthat they are not acting on behalf oftheir State. The Human Rights
Committee monitors the implementation of the Covenant in a number of ways.
1. The Committee examines periodic reports from States Parties to the Covenant
on their compliance (Article 40).
2. Such a report must be submitted by each State within one year of becoming
party to the Covenant, and thereafter whenever the Committee so determines.
The reports are examined in public and in the presence of the representative of
the State concerned, who may be questioned. 3. On completion of each State
report, the Committee issues concluding observations which reflect the main
points of discussion, as well as suggestions and recommendations to the
Government concerned on ways in which the Covenant could be better
implemented.
4. The Committee can consider complaints of one State against another, provided
that both have made a special declaration recognizing thisrole of the Committee
under Article 41. To date, no such complaints have been received.
5. The Human Rights Committee also interprets the content and meaning of
specific articles of the Covenant in its ‘General Comments’. These establish the
jurisprudence of the Covenant and thus guide the States Parties in their
adherence to their obligations under the Covenant and in the preparation of State
reports.
6. The Committee reports annually on its work to the United Nations General
Assembly through the Economic and Social Council (ECOSOC).
Effectiveness of this reporting procedure: Since the protection of human rights
depends ultimately upon compliance at the national level, the power of the
Human Rights Committee is limited as it has no recourse beyond its comments.
However, there is a persuasive value derived from the examination of reports in
public, as governments are generally sensitive to public exposure of their human
rights performance. Moreover, the principal objective of the Committee is to
develop a constructive dialogue with reporting States and thereby promote the
compliance of States with the provisions of the Covenant. Reporting States are
urged to make the text of the Covenants known, translated into the main local
language, and brought to the attention of administrative and judicial authorities.
Dealing with the complaints from individuals: Under the provisions of the
Original Protocol to the ICCPR, the Committee can receive complaints from
individuals alleging violations of their rights under the Covenant, provided that
the State concerned has ratified this Optional Protocol. Complaints are made by
submitting written communications to the Committee. Representation may also
be made by another person on behalf of a victim when the victim is not able
personally to appeal to the Committee. The Committee examines a case on its
‘admissibility’ and then on its ‘merits’ or substance in closed sessions, which
means in the presence of the members of the Committee only. To determine
admissibility, the complaint should not be anonymous, it should not be an abuse
of the procedure, it should not be under consideration by any other international
procedure, and the complainant must have exhausted all possible domestic
remedies.
After confidential consideration of the communication, the Committee is
empowered to bring any individual complaint which it finds admissible to the
attention of the State Party concerned. The State on its part undertakes to provide
the Committee, within six months, with a written explanation on the matter and
the remedy, if any, that it may have undertaken. The Committee takes into
account all written information made available to it by the initial author of the
communication, by the alleged victim and by the State concerned. The Committee
adopts Views’ on the merits of the case, which are forwarded to the State Party
and the individual concerned, in the expectation that the State will act upon
them. The Committee also makes public its decisions and views.
Q. Critically evaluate Social Economic and Cultural Rights as guaranteed
under the International Convention and Indian Constitution.
Economic, Social and Cultural Rights are an important part of the international
human rights law. They have been fully recognized by the international
community and throughout international human rights law. Although these
rights have received less attention than civil and political rights, far more serious
consideration than ever before is currently being devoted to them. The question
is not whether these rights are basic human rights, but rather what entitlements
they imply and the legal nature of the obligations of States to realize them. The
fact is that civil and political rights and economic, social and cultural rights are
indivisible and interdependent. Without realizing economic, social and cultural
rights, there cannot be a meaningful enjoyment of civil and political rights.
Key International Instruments on ESCR and the Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights (ICESCR):
Various international instruments recognize economic, social and cultural rights
as integral parts of the human rights framework. The first comprehensive
international instrument encompassing both sets of rights i.e., civil and political
rights and the economic, social and cultural rights is the Universal Declaration
of Human Rights (UDHR). The International Covenant on Economic, Social and
Cultural Rights (ICESCR) remains the principal instrument on economic, social
and cultural rights. It recognizes the right to selfdetermination; equality for men
and women; the right to work and favourable conditions of work; the right to form
and join trade unions; the right to an adequate standard of living including
adequate food, clothing and housing; the right to health and healthcare; the
protection of the family; and the right to social security. As of November 2005,
149 countries have ratified the Covenant.
Other key international instruments include the Convention on the Elimination
of All Forms of Racial Discrimination (1965), theConvention on the Elimination of
All FormsofDiscrimination against Women, 1979 (CEDAW) and the Convention
on the Rights of the Child, 1989 (CRC), Limburg Principles and the Maastricht
Guidelines, Vienna World Conference on Human Rights Declaration and Plan of
Action and Conventions of the International LabourOrganization.
General Principles of ESCR and State Obligations to Promote, Protect and
Fulfill: State parties are bound to ensure minimum human rights regardless of
their resource constraints. For ESC rights, minimum core requirements include
available foodstuffs for the population, essential primary healthcare, basic shelter
and housing, and the most basic form of education. How do states fulfill their
minimum requirements?
Respect- the obligation to respect requires governments to refrain from
interfering directly or indirectly with the enjoyment of ESCR.
Protect- the obligation to protect requires governments to prevent third parties
such as corporations, from interfering in any way with the enjoyment of ESCR
Fulfill- the obligation to fulfill requires governments to adopt the necessary
measures to achieve the full realization of ESCR.
The Indian Context: The Indian Constitution recognizes economic, social and
cultural rights as Directive Principles of State Policy which, unlike the guarantee
of civil and political rights in the Indian Constitution, are not directly enforceable
in the courts, but are intended to serve as guidance for government policy. The
Indian law of economic, social and cultural rights has been developed
incrementally by the courts, drawing on the Directive Principles as aids to
interpretation of the civil and political rights which are justiciable under the
Constitution, to elevate the status of the Directive Principles as constitutional
rights. In particular, the Indian Supreme Court has adopted an expansive
interpretation of the constitutional right to life, based on principles of human
dignity, to protect certain economic and social rights, including the right to
adequate nutrition, clothing and shelter, the right to medical facilities, the right
to earn a livelihood, and environmental rights.
In the Olga Tellis case, the right to livelihood meant that there was an obligation
on the state to afford procedural fair hearing rights to a group of pavement
dwellers whose livelihoods were threatened by their eviction. Beyond procedural
rights, the Supreme Court has held in Paschim Banga Khet Mazdoor Sabha v.
State of West Bengal that the State’s obligations to protect economic and social
rights may include obligations to provide additional resources, for example to
ensure essential healthcare services.
Similarly, the right to life and personal liberty, in Article 21 of the Constitution,
has also been applied by the Supreme Court, in conjunction with Directive
Principles relating to education, health, and conditions of employment, to address
the working conditions of child labourers in the carpet industry.
Thus, ESC rights are no less important than fundamental rights in the
constitutional scheme. It need hardly be added that the duty cast on the State
under Articles 47 and 48-A in particular of Part IV of the Constitution is to be
read as conferring a corresponding right on the citizens and 30 Compiled by
Rahul Kr. Singh therefore, the right under Article 21 at least must be read to
include the same within its ambit. The ESC rights that the DPSP symbolize can
demonstrably be read as forming part of an enforceable regime of fundamental
rights. Therefore, it is crucial for the State to implement this constitutional
mandate. The State has to be constantly reminded of its obligations and duties.
This is the Indian Experience.