SUBJECT- HUMAN RIGHTS

COURSE- LL.B., VI-SEM

NOTES PREPARED BY- DINESH KUMAR (ASSISTANT PROFESSOR)
QUESTION AND ANSWERS

Q.1 WRITE ABOUT UNITED NATIONS HUMAN RIGHTS COUNCIL.

A. The Human Rights Council is the main inter-governmental body within the United
Nations system responsible for addressing situations of human rights violations. The
Council also receives thematic and country-specific reports from a series of independent
expert mechanisms, including special procedures, as well as from the Office of the High
Commissioner for Human Rights. Since the Council’s inception in 2006, Human Rights
Watch has been involved in strengthening its capacity to promote and protect human
rights worldwide and be more responsive to the needs of victims of rights violations. We
work to cast a light on the activities of the Council, hold its members accountable for
their actions and advance compliance with its objective of addressing “situations of
violations of human rights, including gross and systematic violations” around the world.

Q.2 WRITE MEASURES FOR PROTECTING CHILD RIGHTS.

A. Human rights apply to all age groups; children have the same general human rights as
adults. In 1989, however, world leaders decided that children needed a special convention
just for them because people under 18 years old often need special care and protection
that adults do not. The leaders also wanted to make sure that the world recognized that
children have human rights too. The Convention on the Rights of the Child (CRC) is the
first legally binding international instrument to incorporate the full range of human
rights—including civil, cultural, economic, political and social rights.
The Convention on the Rights of the Child sets out the rights that must be realized for
children to develop their full potential, free from hunger and want, neglect and abuse. It
reflects a new vision of the child. Children are neither the property of their parents nor
are they helpless objects of charity. They are human beings and are the subject of their
own rights. The Convention offers a vision of the child as an individual and as a member
of a family and community, with rights and responsibilities appropriate to his or her age
and stage of development. By recognizing children's rights in this way, the Convention
firmly sets the focus on the whole child.
These rights encompass freedom of children and their civil rights, family environment,
necessary healthcare and welfare, education, leisure and cultural activities and special
protection measures. The UNCRC outlines the fundamental human rights that should be
afforded to children in four broad classifications that suitably cover all civil, political,
social, economic and cultural rights of every child:

Right to Survival:
• Right to be born
• Right to minimum standards of food, shelter and clothing
• Right to live with dignity
• Right to health care, to safe drinking water, nutritious food, a clean and safe
environment, and information to help them stay healthy

Right to Protection:
• Right to be protected from all sorts of violence
• Right to be protected from neglect
• Right to be protected from physical and sexual abuse
• Right to be protected from dangerous drugs

Right to Participation:
S• Right to freedom of opinion
• Right to freedom of expression
• Right to freedom of association
• Right to information
• Right to participate in any decision making that involves him/her directly or indirectly

Right to Development:
• Right to education
• Right to learn
 • Right to relax and play
• Right to all forms of development – emotional, mental and physical

Q3. WRITE TWO OBJECTS AND TWO SALIENT FEATURES OF THE HUMAN
RIGHTS ACT, 1993.

A. The main objective of protection of Human Rights Act 1993 is protecting human beings
from violations. Without Human rights there would be either no if or a meaning less life.
The rights relating to life, liberty equality and dignity of the individual as guaranteed by
the constitution are also included in the category of “Human Rights”. Human Rights are
the rights and freedoms of all human beings.
The purpose of securing human rights as such is to provide protection to these rights
against the abuse of power committed by the organs of state to establish institution for the
promotion of living condition beings and for the development of their personality and at
the same time to provide effective remedial measures for obtaining redress in the event of
those rights are violated. The act provides for establishment of National Human Rights
Commission, State Human right Commission and Human Rights Courts which seeks to
prevent and punish any gross violation of human rights.
Two salient features:
The human rights that everyone has and everyone equally by virtue of their very
humanity. They are grounded in our appeal to human nature. As such, their main
implications and characteristic features may be enumerated as under:-
 It means in the first place, that everybody has them. The subject of human rights are not
the members of this or that society but of the community of humankind. There is no
question about full membership in this community for example, for children or the
insane. and there is some doubt as to whatever gouts can count as members in the sense
of themselves being subjects of Human Rights. But the basic justification, for holding
human rights is belong to the human race.
 The objects of human rights, like those of plain rights, are of great importance. But just
as rights may be said to override other considerations, human rights may be said to
override mere rights. The human rights to life may be judged to out rank in a situation
where there is a contest between them, a right under a particular civil law, say, to the use
 of land among trumps, it may be side, human rights are the coloured cards. And this is
what is meant by reference to human rights as absolute rights. It does not mean that
human rights are indivisible. Even the ace of trumps may be topped by a joker (the right
not to be tortured for example) against the need to know where the nuclear bomb has
been planted in the underground of by decision to play another game (the transition for
example from place to war). It means only that they are in general of the greatest
importance.
 The exercise of human rights might have a more restricted range that that of civil rights.
We referred earlier to claiming, asserting demanding enjoying protecting and enforcing a
right. In the case of human rights the assertive and of this spectrum is the most
prominent. For very often human rights are appealed to when the claim they encompass
are not locally acknowledge in positive law.
 There is the question of the location of the duties that correlate with human rights. In this
regard it has been argued that there are universal human rights in a strong and a weak
sense.

Rights in the strong sense are held against every body else. Rights in a weak sense are held
against a particular Section of humanity. Everyone has a right to life against everyone else. There
is general duty to respect it. But if every body holds, say economic and social rights, it is against
a particular government: duties are laid only on the responsible authorities. Thus, all basic human
rights are said to have three correlative duties-duties to avoid depriving duties to protect from
deprivation and duties to aid the deprived.

According to circumstances the duty bearers may be different (individuals, responsible nations,
exploitative companies) and the particular duty varied by aid in a natural disaster, avoidance of
deprivation in a monopolistic Market. But basic rights trigger all these kinds of duty.

What is characteristic of the justification of human rights? It is not an appeal to this statute or
that contract, for if the rights in question were written into the statutes or contracts, those
provisions under municipal law would by themselves be a sufficient justification. The
justification of human sright moves up one level to regional international law (e.g. the European
convention on Human Rights) or two levels to global international law (e.g. International
covenant on civil and political Rights and International covenant on Economic, Social and
Cultural Rights), so that the appeal is that standards internationally recognized should be met by
domestic practice. And there is a level above these which is the ultimate justification of human
rights. It is the level at which what is appealed to is not any kind of positive law, but is what
ought by some rational calculation to prevail.

Q 4. HOW DOES NATIONAL HUMAN RIGHTS COMMISSION CONSTITUTE?

A. Constitution of a National Human Rights Commission.-

(1) The Central Government shall constitute a body to be known as the National Human
Rights Commission to exercise the powers conferred upon, and to perform the functions
assigned to, it under this Act.
(2) the commission shall consist of-
(a) a Chairperson who has been a Chief Justice of the Supreme Court;
(b) one Member who is, or has been, a Judge of the Supreme e Court;
(c) one Member who is, or has been, the chief Justice of a High Court;
(d) two Members to be appointed from amongst persons having knowledge of, or
practical experience in, matters relating to human rights.
(3) The Chairperson of the National commission for Minorities, the National Commission
for the Scheduled Castes and Scheduled Tribes and the National Commission for Women
shall be deemed to the Members of the Commission for the discharge of functions
specified in clauses (b) to (j) of section 12.
(4) There shall be a Secretary-General who shall be the chief Executive Office of the
Commission and shall exercise such powers and discharge such functions of the
Commission as it may delegate to him.
(5) The headquarters of the Commission shall be at Delhi and the Commission may, with
the previous approval of the Central Government, establish offices at other places in
India.
Q.5 COLLECTIVE RIGHTS
ANS. Collective Rights are a type of Human Rights, which unlike traditional rights, are
not vested in a single individual but belongs to all people so that all of them can
 collective enjoyed. i.e they are enjoyed jointly rather than severally. Collective Rights are
also called Third Generation Rights, Solidarity Rights or New Rights.
Collective rights are held by a group, rather than any one individual. They have typically
been a focus of indigenous peoples and other groups whose rights are threatened by an
individualistic, capitalist system. For example, much of the "Third World" (now Global
South) organizing in the 1980s and 1990s focused on collective rights and finding ways
to enforce those rights in addition to the more widely-recognized individual rights. Some
examples include:
 The right to speak one's native language and educate children in that language; the
right to cultural preservation
 The rights of indigenous peoples to land and resources held collectively, and the
right to pass land and resources down through the generations
 Environmental rights to clean air, water, and land
 The right to national self-determination
 The right to development
 The right to autonomous self-government for minority groups
 The right to restitution for lands stolen from the collective

These rights generally revolve around the rights of distinct groups to maintain a distinct identity
and be free from harm at the hands of a more powerful government, though there is also an
argument for collective rights held by the human race as a whole, such environmental rights or
the right to peace. Generally, the larger the group in question, the more controversial the idea of
a commonly held right.

Q. 6 EXPLAIN THE SCOPE OF PIL WITH RESPECT TO THE HUMAN RIGHTS

IN INDIA.

ANS. In Indian law, means litigation for the protection of public interest. It is litigation
introduced in a court of law, not by the aggrieved party but by the court itself or by any other
private party. It is not necessary, for the exercise of the court's jurisdiction, that the person
who is the victim of the violation of his or her right should personally approach the court.
Public Interest Litigation is the power given to the public by courts through judicial activism.
Public interest Litigation,

In simple words, means, litigation filed in a court of law, for the protection of Public Interest,
such as pollution, Terrorism, Road safety, constructional hazards etc.

Public interest litigation is not defined in any statute or in any act. It has been interpreted by
judges to consider the intent of public at large. Although, the main and only focus of such
litigation is only Public Interest there are various areas where a Public interest litigation can be
filed. For e.g.

- Violation of basic human rights of the poor

- Content or conduct of government policy

- Compel municipal authorities to perform a public duty.

- Violation of religious rights or other basic fundamental rights

Through the mechanism of PIL, the courts seek to protect human rights in the following
ways:

1) By creating a new regime of human rights by expanding the meaning of fundamental right to
equality, life and personal liberty. In this process, the right to speedy trial, free legal aid, dignity,
means and livelihood, education, housing, medical care, clean environment, right against torture,
sexual harassment, solitary confinement, bondage and servitude, exploitation and so on emerge
as human rights. These new reconceptualised rights provide legal resources to activate the courts
for their enforcement through PIL.

2) By democratization of access of justice. This is done by relaxing the traditional rule of locus
standi. Any public spirited citizen or social action group can approach the court on behalf of the
oppressed classes. Courts attention can be drawn even by writing a letter or sending a telegram.
This has been called epistolary jurisdiction.

3) By fashioning new kinds of reliefs under the court’s writ jurisdiction. For example, the court
can award interim compensation to the victims of governmental lawlessness. This stands in sharp
contrast to the Anglo-Saxon model of adjudication where interim relief is limited to preserving
the status quo pending final decision. The grant of compensation in PIL matters does not
preclude the aggrieved person from bringing a civil suit for damages. In PIL cases the court can
fashion any relief to the victims.

4) By judicial monitoring of state institutions such as jails, women’s protective homes, juvenile
homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual
improvement in their management and administration. This has been characterized as creeping
jurisdiction in which the court takes over the administration of these institutions for protecting
human rights.

5) By devising new techniques of fact-finding. In most of the cases the court has appointed its
own socio-legal commissions of inquiry or has deputed its own official for investigation.
Sometimes it has taken the help of National Human Rights Commission or Central Bureau of
Investigation (CBI) or experts to inquire into human rights violations. This may be called
investigative litigation.

10 ARKS QUESTIONS

Q.7 CONCEPT OF HUMAN RIGHTS AND FUNDAMENTAAL RIGHTS.

ANS. Human rights are the basic rights and freedoms that belong to every person in the
world, from birth until death. They apply regardless of where you are from, what you believe
or how you choose to live your life. They can never be taken away, although they can
sometimes be restricted – for example if a person breaks the law, or in the interests of
national security. These basic rights are based on shared values like dignity, fairness,
equality, respect and independence. These values are defined and protected by law.

Human rights are fundamental rights, commonly understood, as inalienable fundamental

rights to which a person is inherently entitled simply because she or he is a human being."

Human rights are therefore conceived as universal. These rights may exist as natural rights or
as legal rights in law. Thus, we can say they are basic rights or freedom to which all human
being are entitled no matter what their status, gender, religion etc. is. As John F. Kennedy
states; “The rights of every man are diminished when the rights of one man are threatened.”
The value is mirrored as the idea of human rights states, "if the public discourse of peacetime
global society can be said to have a common moral language, it is that of human rights."
Although ideas of rights and liberty have existed in some form for much of human history,
they do not resemble the modern conception of human rights.

Many of the basic ideas that founded the Human Rights legislation was a result of the
aftermath of World War II, and thus consequently the adoption of the Universal Declaration
of Human Rights (UDHR) occurred. The doctrine of human rights in international practice
has been a cornerstone of public policy around the world. Despite this, the strong claims
made by the doctrine of human rights continue to provoke considerable scepticism and
debates about the content, nature and justifications of human rights to this day. This even
includes the idea of 'what is a right?' and this has lead to many controversies and is the
subject of many debates.

The Rights and Fundamental Rights are sections of the Constitution of India that provides
people with their rights. These Fundamental Rights are considered as basic human rights of
all citizens, irrespective of their gender, caste, religion or creed. etc. These sections are the
vital elements of the constitution, which was developed between 1947 and 1949 by the
Constitution of India. There are six fundamental rights in India. They are Right to Equality,
Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and
Educational Rights, and Right to Constitutional Remedies.

 Right to Equality ensures equal rights for all the citizens. The Right to Equality
prohibits inequality on the basis of caste, religion, place of birth, race, or gender. It
also ensures equality of opportunity in matters of public employment and prevents the
State from discriminating against anyone in matters of employment on the grounds
only of religion, race, caste, sex, descent, place of birth, place of residence or any of
them.
 Right to freedom provides us with various rights. These rights are freedom of
speech, freedom of expression, freedom of assembly without arms, freedom of
movement throughout the territory of our country, freedom of association, freedom to
practice any profession, freedom to reside in any part of the country. However, these
rights have their own restrictions.
 Right against Exploitation condemns human trafficking, child labor, forced labor
making it an offense punishable by law, and also prohibit any act of compelling a
 person to work without wages where he was legally entitled not to work or to receive
remuneration for it. Unless it is for the public purpose, like community services or
NGO work.
 Right to Freedom of Religion guarantees religious freedom and ensures secular
states in India. The Constitutions says that the States should treat all religions equally
and impartially and that no state has an official religion. It also guarantees all people
the freedom of conscience and the right to preach, practice and propagate any religion
of their choice.
 Cultural and Educational Rights protects the rights of cultural, religious and
linguistic minorities by enabling them to conserve their heritage and protecting them
against discrimination. Educational rights ensure education for everyone irrespective
of their caste, gender, religion, etc.
 Right to Constitutional Remedies ensures citizens to go to the supreme court of
India to ask for enforcement or protection against violation of their fundamental
rights. The Supreme Court has the jurisdiction to enforce the Fundamental Rights
even against private bodies, and in case of any violation, award compensation as well
to the affected individual.

The Supreme Court recently added Right To Privacy in the fundamental rights.

Q. 8 EXPLAIN THE PROVISIONS RELATING TO THE INVESTIGATION BY

THE NATION HUMAN RIGHTS COMMISSION(NHRC).

ANS. Introduction

“Human rights” means the rights relating to life, liberty, equality and dignity of the
individual guaranteed under the Constitution or embodied in the International Covenants and
enforced by courts in India.” All human beings are born with some unalienable rights like
life, liberty and pursuit of happiness. The importance of these natural rights can be found in
the fact that these are fundamental for their proper existence and no other rights can be
enjoyed without the presence of rights to life and liberty.

The complaints against the human rights offences can be divided into three categories: (a)
complaint to the National Human Rights Commission, (b) complaint to the State Human
Rights Commission and (c) complaint to the police authorities or private complaint at District
Human Rights Courts. The investigation and prosecutions procedures are different in these
categories. Protection of Human Rights Act, 1993, has not defined the term "complaint" and
"offence". The Section 12 of the Act deals with the various functions of the National Human
Rights Commission. This section is applicable to the State Human Rights Commissions also.
The first codified function is as follows; Inquire, suo motu or on a petition presented to it by
a victim or any person on his behalf [or on a direction or order of any court, into complaint
of:- (i) Violation of human rights or abetment thereof; or (ii) Negligence in the prevention of
such violation, by a public servantii ; The Section 17 of the Act deals with the inquiry into
complaints. Accordingly, sections 12 and 17 of the Act uses the term "complaint".

The section 30 of the Act says that for the purpose of providing for speedy trial of offences
arising out of violation of human rights, the state government may, with the concurrence of
chief justice of the High Court, by notification, specify for each district a Court of Sessions to
be a human rights court to try the said offences; The section 37 of the Act says about the
constitution of special investigation teams to investigate the human rights offences.
Accordingly, sections 30 and 37 of the Act uses the word "offence".

Criminal Procedure Code, 1973, is applicable for the Human Rights Courts. High Court of
Madras clearly mentioned in its judgment that it is legally permissible for the relevant
provisions of the Criminal Procedure Code to be swing into operation for the trial of „Human
Rights‟ expecting matters in respect of specific provisions has been made in the Protection of
Human Rights Act. Hence, it is very clear that the definition of the complaint and offence are
applicable for the cases before the human rights courts.

There is no specific provision in PHR Act as to locus standi in the matter of approaching
Human Rights Courts for redressal of grievances in relation to violation of human rights,
amounting to offences whether cognizable or non- cognizable. In the absence of such a
provision, Human Rights Court being a criminal court have to necessarily follow the
procedure laid down in the Criminal Procedure Code.

Investigation It is noteworthy to know the investigation process in criminal cases before examining
the investigation process in the human rights cases. In criminal cases, on receipt of the complaint,
the police officer registers the First Information Report under section 154 of the Criminal Procedure
Code. A police officer is competent to investigate only cognizable offences. Non cognizable offences
cannot be investigated by the police without obtaining prior orders from the courts. The
investigation of the complaint begins from the First Information Report. A police officer can examine
witnesses under section 161. However, the statements are not to be signed by the witnesses.
Confessions of accused persons and statements of witnesses are recorded under section 164 of the
Code. A police officer has the power to conduct searches in emergent situations without a warrant
from the court under section 165. A police officer is competent to arrest an accused suspected to be
involved in a cognizable offence without an order from the court in circumstances specified in
section 41 of the Code. He is required to maintain a day to day account of the investigation
conducted by him under section 172. After completion of investigation, a police officer is required to
submit a final report to the court under section 173. If a prima facie case is made out, this final
report is filed in the shape of a charge-sheet. The accused has, thereafter, to face trial. If no cogent
evidence comes on record, a closure report is filed in the Courtvi . In criminal cases, on receipt of the
complaint, if the police officer refuses to register the First Information Report, the complainant has
right to file private complaint before the concern court. The procedure is given in Section 200 and
203 of the Criminal Procedure Code. There is no investigation proceedings in the private complaint.
Investigation in human rights cases are differ from the criminal cases.

Section 14 of the Protection of Human Rights Act, 1993 deals with investigation, which as follows;
(1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry,
utilize the services of any officer or investigation agency of the Central Government or any State
Government with the concurrence of the Central Government, or the State Government as case
may be. (2) For the purpose of instigating into any matter pertaining to the inquiry, any officer or
agency whose services are utilized under sub-section (1) may, subject to the direction and control of
the Commission, - (a) Summon and enforce the attendance of any person and examine him; (b)
Require the discovery and production of document; and (c) Requisition any public record or copy
thereof from any office. (3) The provisions of section 15 shall apply in relation to any statement
made by a person before any officer or agency whose service are utilized under sub-section (1) as
they apply in relation to any statement made by a person in the course of giving evidence before the
Commission. (4) The officer or agency whose services are utilized under sub-section (1) shall
investigate into any matter pertaining to the inquiry and submit a report thereon to the Commission
within such period as may be specified by the Commission in this behalf. (5) The Commission shall
satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the
court submitted to it under sub-section (4) and for this purpose the Commission may make such
inquiry (including the examination of the person or person who conducted to assisted in the
investigation) as it thinks fitvii . This provision is applicable to the National and State Human Rights
Commissions. According to the National Human Rights Commission's regulation (8) 6, on admission
of a complaint, the Chairperson/Commission shall direct whether the matter would be set down for
inquiry by it or should be investigatedviii. The regulation 17 provides the investigation team for the
Commission. The State Human Rights Commission's regulation 21 provides power to issue order for
investigation on the complaints and regulation 4 provides the investigation division for the
Commission. Generally, on receipt of human rights complaints, the human rights commissions shall
call for reports from the concern Government or authority and proceeds with same. Directing for
investigation on the complaints of human rights violations is discretionary power of the human
rights commissions. According to the human rights commission's sources, in less than ten
percentages of complaints only commissions directed for the investigation.

The Section 37 of the Protection of Human Rights Act, 1993 provides constitution of special
investigation teams. The provision as follows; Notwithstanding anything contained in any other law
for the time being in force, where the Government considers, it necessary so to do, it may constitute
one or more special investigation teams, consisting of such police officers as it thinks necessary for
purposes of investigation and prosecution of offences arising out of violations of human rightsix .
But, Central or State governments have not yet constituted such special investigation teams from
1993 to till date. No first information report was registered in human rights cases by station house
officer of the police station under the Protection of Human Rights Act. Private complaints were filed
and taken on the file of Human Rights Courts in Tamil Nadu from 1996 to 2011. To avoid this defect,
a special investigation team for human rights should be appointed under section 37 of the
Protection of Human Rights Act in the districts. If the special investigation team for human rights
refuses or drops the proceedings, victims of human rights violations have right to file private
complaint before the Human Rights Courtsx . On receipt of direct complaints, the district special
investigation team has to register First Information Report and proceed the investigation in
accordance with the Criminal Procedure Code and file the report to the district human rights court
for trial, which was explained earlier. The complaints of human rights violations will be against the
public servants. Hence, these teams have to under the control of existing Inspector General of
Police, investigation division of State Human Rights Commissions. The investigation division of the
State Human Rights Commissions shall come under the control of existing Director-General of
Police, investigation agency of the National Human Rights Commissions. Thus, National Human
Rights Investigation Agency (NHRIA) has to established independently like Central Bureau of
Investigation. On receipt of complaints, the human rights commissions shall call for investigation
report from the concern district special investigation team and proceed to the inquiry. Hence, the
proposed system shall provide the investigation in each and every complaint.

Q.9 EXPLAIN THE CONSTITUTION AND SALIENT FEATURES OF

NATIONAL COMMISSION FOR WOMEN.

Ans. The National Commission for Women Act was passed in the year 1990 by the
notification of Central Government in the Official Gazette. As there was lack of
constitutional, economical and social interest to protect the women in India they faced many
problems and injustices caused to them. Government considered as handicapped as they
lacked policies to face the problem of women, need for certain Commission to look in to the
grievances of women. The National Commission for Women established in January 1992
under the Indian Constitution as defined in National Commission for Women Act, 1990.
Central Government laid the structure for formation of Commission by passing the bill in
Lok Sabha in May 1990, the bill was passed and received the president assent on 30th
August 1990. The first Commission was constituted on January 31 1992 as Jayanti patnaik as
the chairperson to assist the women in redressal of their grievances.

Salient features

National Commission for Women is also one of the significant statutory bodies established
by the Government of India. It was established in 1992 under the provisions of the National
Commission for Women Act, 1990.

The Central Government took the initiative to establish this Commission by keeping in view
the provisions of India’s constitution to strengthen the women in country through addressing
plights, suppressions and other types of violence they use to face. National Commission for
Women also takes the initiatives for overall development of women community in whole
country. Main aim of National Commission for Women is to raise the concern for the women
and to represent itself for their rights. This Commission takes into account the issues and
concerns of women community and advises for the authentic solution of all the problems
they face.

Composition of National Commission for Women

The Commission shall consist of

(a) A Chairperson, committed to the cause of women, to be nominated by the Central

Government.

(b) five Members to be nominated by the Central Government from amongst persons of
ability, integrity and standing who have had experience in law or legislation, trade unionism,
management of an industry potential of women, women’s voluntary organizations ( including
women activist ), administration, economic development, health, education or social welfare;

Provided that at least one Member each shall be from amongst persons belonging to the
Scheduled Castes and Scheduled Tribes respectively;

Functions of National Commission for Women

 Work as the coordinating agency to receive and process all the complaints related to
Indian Women deserted by their Overseas Indian husbands.
 Shall render all possible assistance to the complaints including conciliation,
mediation between the parties and advising the complainant on related issues.
 Associating, networking with NGOs, community organizations in India and overseas
and State women Commissions for wider area coverage, so as to assist easy access
and provide support services.
 Shall endeavour towards a coordinated response amongst various Government
agencies/organizations such as State Governments, The National Human Rights
Commission, Indian Embassies and Mission, concerned Ministries etc.
 Provide assistance to the distressed woman in litigation and other issues pertaining to
the complainant/case.
 Shall maintain a data bank record of cases registered.
  Seek reports from the State Government and other authorities on the complaints filed
and action taken thereon.
 Shall advice and recommend the government on any policy or issue relating to the
NRI marriages.
 Investigate various legal treaties on the issue and advice the Government on the
subject, wherever required.
 Shall constitute an advisory committee panel of reputed advocates/NGOs, both in
India as well as abroad, which shall intermittently review the functioning of the cell,
cases filed and policy issues.
 Shall constitute a panel of experts (All India) to support the aggrieved wife and
rendering legal services and other assistance, including mediation and conciliation
 Planning of training modules and conducting training on sensitisation on the subject
to the various agencies entrusted with the task of providing justice, vig. Judiciary,
police, administration, etc.
 Shall organize awareness campaigns for the masses on the issue.
 This commission has responsibility to encourage /support research and study in the
related field like issues of grievances associated with dual citizenship, enactment of
new legislation or signing of international treaties, marriage laws of other countries,
etc.
 NCW must look into complaints and take suo-moto notice on any issue brought to the
notice of the NRI Cell in accordance with Section 10 (1)(f) of the National
Commission for Women Act , 1990 read with sub-section 4 of Section 10 and Section
8 of the Act.
 The cell shall control its own procedures in accordance with the National
Commission for Women Act 1990.
 NCW must perform any other function as assigned to it by the Commission/Central
Government.
Q. 10 EXPLAIN THE MINORITY RIGHTS AND SCOPE OF THEIR PROTECTION
IN INDIA.

ANS. INTRODUCTION
Minority rights are the normal individual rights as applied to members of racial, ethnic,
class, religious, linguistic or gender and sexual minorities; and also the
collective rights accorded to minority groups.Minority rights may also apply simply to
individualrights of anyone who is not part of a majority decision.

The expression “minority” has been derived from the Latin word “minor” and the suffix ‘ity’, which
means “small in number”. According to Encyclopedia Britannica minorities means “group held
together by ties of common descent, language or religious faith and feeling different in these
respects from the inhabitants of a given political entity”.

The United Nations Commission on Human Rights in 1950 had defined minorities as below:

Only those communities other than the ruling national community can be termed as minorities, who
want to have a language, religion or race different from the language, religion and race of the
national community. It is essential for being recognized as minorities that they should be sufficient
in number and their constituents should be faithful to the nation in which they live.”

Minority as per the Constitution of India

The architects of the Indian Constitution guaranteed to minorities all necessary rights and freedoms
but have no where defined the expression “Minority”. There is no parliamentary legislation either
defining a ‘minority.’ The Motilal Nehru Report (1928) showed a prominent desire to afford
protection to minorities, but did not define the expression. The Sapru Report (1945) also proposed,
inter alia, a Minorities Commission but did not define Minority.

The Constitution of India strives to achieve a harmony between all the communities by
ensuring “justice, social, economic or political” to all citizens and declaring itself to be a
secular state. While certain laws are applicable to all Indian citizens, there are personal laws
that apply to certain communities only, preserving their customs and beliefs. Minority rights
protection in India has always been in limelight with political parties garnering votes of
various communities through triggering their emotions upon their minority status.

Under the Constitution of India, there are various provisions to safeguard the rights of
minorities. Preamble of the Constitution declares India to be a secular state. Article 15
prohibits any sort of discrimination on the grounds of race, religion, caste, sex, descent, place
of birth or residence. Article 16 also prohibits any sort of discrimination when it comes to
public employment, on the basis of religion, caste, language, race and so on. This guarantees
equal employment opportunities to all the Indian citizens in case of government offices.

The right to profess, practice and propagate any religion has been guaranteed to every person
as a fundamental right under Article 25 of the Indian Constitution. This article allows the
minority communities to follow their beliefs and practices without any hindrance as long as it
does not hamper public order, morality and health of any person.

Article 29 of the Constitution provides the citizens with the right to conserve their language,
script and culture; as well as guarantees that they would not be denied admission into any
educational institution based on their race, language, religion or caste. This right is provided
to any section of the society, whether it has been recognised as a minority by the State or not.

Article 30 is pivotal to the protection of minority rights in India. It provides the minorities the
right to establish and administer educational institutions and the State has been prohibited
from any discrimination in matters of granting aids to such institutions. But these educational
institutions can be regulated by the State. Although this article uses the term “minorities”, it
has not been given any definition by the Indian Constitution. The judiciary has tried to dwell
upon this matter in various cases.

In the judgment of In re Kerala Education Bill[20], the Supreme Court held that the meaning
of the term minority can be construed to a “community which is less than 50% of the total
population” in a defined area.[21] In D.A.V. College v. State of Punjab[22], it was held that
Hindus even though they are majority in the nation, can be treated as a minority in State of
Punjab for the purpose of conserving their language under Article 29 of the Constitution.
Hence, religious or linguistic minority status should be construed in relation to the legislation
which is sought to be impugned, in case of state legislature, according to the state
population.[23] In A.S.E. Trust v. Director, Education, Delhi Administration, it was held that
only those religions such as Muslims, Christians, Jains, Buddhists, Sikhs etc., which have
kept their identities separated from the majority, i.e., Hindus, can only be considered to be
“minority” based on religion.[24] Not every section of the Hindu religion can be considered
to be minority.
TMA Pai foundation Case also upheld that the minority status of any community has to be
decided based on state population.[25] It also established that Article 30(1) confers both
linguistic and religious minorities the right to establish and administer educational institutions of
their choice, albeit the right to administer is not absolute. The Judges also held that aided
minority institutions need to admit a certain number of non-minority students so as to maintain a
balance between minorities’ right under Article 30(1) and citizen’s rights against discrimination
under Article 29(2).

The National Commission for Minority Educational Institution Act, 2004, amended in 2006 and
2010, was promulgated with an objective to safeguard the minorities’ educational rights as
mentioned in Article 30(1).

Minority Protection Through Enforcement Of Personal Laws

Before the colonial rule in India, Personal laws were widely applied in India, including
Hindu laws, Muslim Laws, and Jewish Laws. The British also used the policy of non-
interference with these personal laws. In the contemporary India also, the matters related to
marriage, divorce, succession and family affairs are mostly governed by the personal laws
specific to the certain communities.

National Commission for Minorities

The National Commission for Minorities was established by the National Commission for
Minorities Act, 1992 to protect minority rights in the country. The commission consists of
one chairperson and six members representing the six minor communities – Muslims, Sikhs,
Buddhists, Christians, Parsis and Jains. The Commission performs various functions
including evaluating the development of minority communities under Union and States,
ensuring the safeguard of minority rights as per the Constitutional laws and other legislations,
conducting studies and researches on the matters related to minorities and suggesting
measures to Government on these aspects.

Conclusion

Though minorities are those whose are numerically less based on their language and culture,
it is evident from the above arguments that the Indian Constitution provides certain rights to
 the minorities residing in several parts of Indian territories. The Constitution of India has not
defined the term ‘minority’, but had provided them with all the opportunities needed for their
survival in the form of fundamental rights. Since India is a secular country, it is important to
maintain the integrity of nation by maintaining a status of equality as because of its rich
cultural values and tolerance. Besides this, there are also certain fundamental duties under
Article 51A given in Part IV-A of the Constitution of India for every citizen.

The main focus of the law is to create confidence in the mind of such minorities that they are
protected by the law of the Constitution and also they are treated equally on par with the majority
so that there would be no any kind of discrimination among the citizens.

Q. 11 WHAT HUMAN RIGHTS ARE INCLUDED IN RIGHT TO LIVE UNDER

ARTICLE 21.

ANS. INTRODUCTION

The Constitution of India guarantees the right to life and personal liberty in Part III under the
category of Right to Freedom (Articles 19-22). The right to life and personal liberty in
accordance with the procedure established by law is guarantee by Article 21 of the Indian
Constitution. The right is available to both citizens and non-citizens.

The ambit of Article 21 have expanded over the years through judicial precedents. According
to article 21, a person can be deprived of his life and personal liberty according to a
procedure established by law. To have a proper understanding of article 21, we are required
to travel a journey from A K Gopalan (1950 SC) case to Maneka Gandhi (1978 SC) case,
which reflect two opposite dimensions and scope of this article.

In Maneka Gandhi case, Personal liberty has been given an expansive meaning. It was held
that articles 21, 14 & 19 are not mutually exclusive. In the words of justice VR Krishna Iyer,
“no article in the constitution relating to fundamental rights is an island in itself. They are
group of Islands connected with each other, i.e. not separate Islands”. On personal liberty,
Justice Iyer said, “the spirit of the man is at root of article 21. Personal liberty makes the
worth of human person and travel makes Liberty worthwhile.”
The most significant and creative aspect of Maneka Gandhi case is the reinterpretation of
procedure established by law. According to it the procedure established by law must be fair,
reasonable and non-arbitrary. The court reached this conclusion I holding that article 21, 9 and
14th are not mutually exclusive but they are interlinked. It brought in the requirement of
visibility of article 19 into article 21. Justice Krishna Iyer said, “Procedure in article 21 means
fair and not formal procedure and law is a reasonable law and not any enacted piece.”

Thus, the ambit of article 21 also includes right to travel abroad and principles of natural justice
must be applied while exercising this right.

Different Aspects Of Article 21

The expanded scope of Article 21 has been explained further in the case of Unni
Krishnan v. State of A.P In the case the court provided the list of some of the
rights covered under Article 21. Some of them are listed below:

 The right to go abroad

 The right to privacy
 The right to education
 The right against solitary confinement
 The right against hand cuffing
 The right against delayed execution
 The right to shelter
 Right to livelihood
 Right to health and medical aid
 The right against custodial death
 The right against public hanging
 Doctors assistance

Through various judgments the Court also included many of the non-justifiable
Directive Principles embodied under part IV of the Constitution. Some of them
are:

 Right to pollution free water and air

  Protection of under-trial
 Right of every child to a full development
 Protection of cultural heritage.

Right to Live with Dignity

Supreme Court has given a broad and liberal interpretation to the term life as used in Article 21.
In Munn Vs. Illinois (94 U.S. 113), J.Field spoke of the right to live as follows, “by the term
‘life’ as here used, something more is meant than sheer animal existence”. Supporting this view,
Justice Bhagwati, in Francis Coralie Vs. U.T. of Delhi (1981 SC), had observed, “we think that
right to life includes the right to live with human dignity and all that grows along with it namely,
the bare necessities of life such as the adequate nutrition, clothing and shelter over the head and
facilities for reading, writing and expressing oneself. The protection extends to all those limbs of
body by which the life is enjoyed”.

In Bandhua Mukti Morcha Vs. Union of India (1984 SC), Justice Bhagwati reiterated his view
and held that it is the fundamental right of every person in this country to live with human
dignity which is free from exploitation. This right to live with human dignity is enshrined under
article 21 drives its life breath from the DPSP.

Right to Die
Right to life includes right to lead dignified life. The question arises hair that
does it also confer I write not to live if a person chooses to end his life?

P.Ratinam Vs. Union of India,1994 SC, The two judge bench rule that right
to life under article 21 also embodies within itself a right not to live forced life to
his detriment hand held that section 309 of IPC is void. But Ratinam case was
overruled by full bench in Gian Kaur vs State of Punjab, 1996 SC. In this
case it was held that section 309 of IPC is not unconstitutional and also section
306 is Constitutional. Supreme Court further said that the right to life is a
natural right which is embodied in article 21, but suicide is an unnatural
termination or extinction of life. Therefore it is incompatible and inconsistent
with the concept of right to life and so both are constitutional.

In Common Cause (A Regd. Society) Vs. Union of India (2018 SC), a five-
judge Constitution Bench, judgment delivered by Chief Justice Dipak Mishra,
gave legal sanction to passive euthanasia, permitting ‘living will’ by patients on
withdrawing medical support if they slip into irreversible state of coma. The SC
held that the right to die with dignity is a fundamental right.

Right To Life Extends To Livelihood

In 1960, the Hon’ble Supreme Court was of the view that Article 21 of Indian
Constitution does not guarantee right to livelihood.

Re Sant Ram (1960 SC), a case which came up before Maneka Gandhi in
which the Apex Court ruled that the right to livelihood would not fall within the
expression “life” in Article 21.

In Olga Tellis Vs. Bombay Municipal Corporation (1986 SC), a case which
was brought by pavement dwellers to resist eviction of their habitat by the
Bombay Municipal Corporation, the right to livelihood is born out of the right to
life, as no person can live without the means of living, that is, the means of
livelihood. The Court has observed in this connection:

“….the question which we have to consider is whether the right to life includes
the right to livelihood. We see only one answer to that question, namely, that it
does. The sweep of the right to life conferred by Article 21 is wide and far-
reaching. It does not mean, merely that life cannot be extinguished or taken
away as, for example, by the imposition and execution of the death sentence,
except according to procedure established by law. That is but one aspect of the
right to life an equally important facet of that right is the right to livelihood
because, no person can live without the means of living, that is, the means of
livelihood.”

If the right to livelihood is not treated as part and parcel of the constitutional
right to life, the easiest way of depriving a person of his right to life would be to
deprive him of his means of livelihood to the point of abrogation.

Right to Education
Right to education is one of the most important aspect human beings without
which no one can lead good, decent and dignified life. Earlier, it was the part of
Directive Principles of State Policy. However as per the changing needs of the
society Supreme Court in Mohini Jain Vs. State of Karnataka (1992
SC) and Unni Krishna Vs. state of Andhra Pradesh (1993 SC) ruled that
right to education is a fundamental right as it directly flows from right to life.

Earlier the Court interpreted right to education under article 21 but in the year
2002, by constitutional amendment, article 21-A was inserted to the Indian
Constitution and right to education was expressly made as a fundamental right.

Right to Privacy
Kharak Singh vs State of Tamilnadu (1963 SC), this issue was raised for
the first time. Justice Subba Rao it is Minority judgement said that the right to
privacy flows from the expression personal liberty. This minority judgement
paved path for the development.

In PUCL vs Union of India (1997 SC), Telephonic conversation, the court

said, was a part of modern man’s life and and important faces of a man’s
private life. Therefore, the Court ruled that telephone tapping would attract
article 21, unless it was permitted under the procedure established by law.
In Selvi vs State of Karnataka, it was held that in involuntary subjection of
person to test such as narco analysis, polygraph examination also violates the
right to privacy.

In Ramlila Maidan case (2012 SC), the Honourable Supreme Court has said
that citizens/persons have right to laser, to sleep, not to here and to remain
silent. The Knock at the door weather by day or by night as a prelude to a
search without authority of law amounts to police incursion into privacy and
violation of fundamental right of a citizen. Right to privacy has been held to be a
fundamental right of a citizen being an integral part of article 21 of the Indian
Constitution. It was also said that the right to life and personal liberty also
includes right to sleep.

Justice KS Puttaswamy (Retd.) Vs. Union of India (2018 SC), has been
proven to be a landmark judgement in deciding the issue whether right to
privacy is constitutionally protected. The nine Judges bench has held that:

 The right to privacy is protected as an intrinsic part of the right to life and personal liberty
under article 21 and as a part of the freedoms guaranteed by part III of the constitution.
 The decision in MP Sharma case which held that right to privacy is not protected by the
constitution was overruled.
 The decision in Khadak Singh case to the extent that it held that right to privacy is not
protected by the constitution was overruled.
 Decisions subsequent to Khadak Singh case which had enunciated the position in (i)
above lay down the correct position in law.

Navtej Singh Johar Vs. Union of India (2018 SC), proved to be another
milestone in the development of right to privacy and an important precedent
delivered by five-judge Bench. The Section 377 of the Indian Penal Code has
been partially struck down by decriminalizing same-sex relations between
consenting adults. Now, the LGBT individuals are legally allowed to engage in
consensual intercourse. The Apex Court has upheld provisions in Section 377,
IPC, that criminalize non-consensual acts or sexual acts performed on animals.
Right against Illegal Detention

The Supreme Court in the case of Joginder Kumar v. State of Uttar

Pradesh[xvii] laid down the guidelines governing arrest of a person during
investigation:

 An arrested person being held in custody is entitled, if he so requests, to have a friend,

relative or other person told as far as is practicable that he has been arrested and where he
is being detained.
 The police officer shall inform the arrested person, when he is brought to the police
station, of this right.
 An entry shall be required to be made in the diary as to who was informed of the arrest.

Further in D.K. Basu v. State of West Bengal,[xviii] the Supreme Court laid
down detailed guidelines to be followed by the central and state investigating
agencies in all cases of arrest and detention till legal provisions are made in that
behalf as preventive measures. The court also held that any form of torture,
cruel, inhuman or degrading treatment, whether it occurs during interrogation,
investigation or otherwise, falls within the ambit of Article 21.

Right to Medical Care

In Parmananda Katara v. Union of India[xlvii], the Supreme Court has very specifically clarified
that preservation of life is of paramount importance. The Apex Court stated that ‘once life is lost,
status quo ante cannot be restored[xlviii].’ It was held that it is the professional obligation of all
doctors (government or private) to extent medical aid to the injured immediately to preserve life
without legal formalities to be complied with the police. Article21 casts the obligation on the
state to preserve life. It is the obligation of those who are in charge of the health of the
community to preserve life so that the innocent may be protected and the guilty may be
punished. No law or state action can intervene to delay and discharge this paramount obligation
of the members of the medical profession.

Right to get Pollution Free Water and Air

In Subhas Kumar v. State of Bihar[lxi], it has held that a Public Interest Litigation is
maintainable for insuring enjoyment of pollution free water and air which is included in ‘right to
live’ under Art.21 of the constitution. The court observed:

“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of
enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or
impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art.32 of
the Constitution for removing the pollution of water or air which may be detrimental to the
quality of life.”

Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free
from the dangers of diseases and infection. Maintenance of health, preservation of the sanitation
and environment have been held to fall within the purview of Article 21 as it adversely affects
the life of the citizens and it amounts to slow poisoning and reducing the life of the citizens
because of the hazards created if not checked.

The following are some of the well-known cases on environment under Article 21:

In M.C. Mehta v. Union of India(1988)[lxii], the Supreme Court ordered closure of tanneries that
were polluting water.

In M.C. Mehta v. Union of India(1997)[lxiii], the Supreme Court issued several guideline and
directions for the protection of the Taj Mahal, an ancient monument, from environmental
degradation.

In Vellore Citizens Welfare Forum v. Union of India[lxiv], the Court took cognizance of the
environmental problems being caused by tanneries that were polluting the water resources,
rivers, canals, underground water and agricultural land. The Court issued several directions to
deal with the problem.

In Milk Men Colony Vikas Samiti v. State Of Rajasthan[lxv], the Supreme Court held that the
„right to life‟ means clean surrounding which lead to healthy body and mind. It includes right to
freedom from stray cattle and animals in urban areas.
In M.C. Mehta v. Union of India (2006)[lxvi], the Court held that the blatant and large-scale
misuse of residential premises for commercial use in Delhi, violated the right to salubrious sand
decent environment. Taking note of the problem the Court issued directives to the Government
on the same.

In Murli S. Deora v. Union of India[lxvii], the persons not indulging in smoking cannot be
compelled to or subjected to passive smoking on account of act of smokers. Right to Life under
Article 21 is affected as a non-smoker may become a victim of someone smoking in a public
place. Right Against Noise Pollution

In Re: Noise Pollution[lxviii], the case was regarding noise pollution caused by obnoxious levels
of noise due to bursting of crackers during Diwali. The Apex Court suggested to desist from
bursting and making use of such noise making crackers.

Right to Know or Right to Be Informed

Holding that the right to life has reached new dimensions and urgency the Supreme Court in R.P.
Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if democracy
had to function effectively, people must have the right to know and to obtain the conduct of
affairs of the State.

In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there was a strong link
between Art.21 and Right to know, particularly where “secret government decisions may affect
health, life and livelihood.

Reiterating the above observations made in the instant case, the Apex Court in Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, ruled that the citizens who had
been made responsible to protect the environment had a right to know the government proposal.

Right to Speedy Trial

In Hussainara Khatoon v. Home Secretary, State of Bihar[lxxxiv], it was brought to the notice of
the Supreme Court that an alarming number of men, women and children were kept in prisons
for years awaiting trial in courts of law. The Court took a serious note of the situation and
observed that it was carrying a shame on the judicial system that permitted incarceration of men
and women for such long periods of time without trials.
The Court held that detention of under-trial prisoners, in jail for period longer than what they
would have been sentenced if convicted, was illegal as being in violation of Article of 21. The
Court, thus, ordered the release from jail of all those under-trial prisoners, who had been in jail
for longer period than what they could have been sentenced had they been convicted.

Conclusion

Article 21 is a live provision in the constitution of India which constantly evolves

like an organism and inherits the traits of dynamism that caters the needs of
the society. The Ambit of right to life and personal liberty keeps on expanding
and will evolve further in future through various judicial pronouncements and
legislative enactment. It is serves as an under-stream that touches every
fundamental right in part III of the Indian Constitution.

On the basis of reasonability and non-arbitrariness and the principles of natural

justice which are enshrined within the Ambit of article 21, many rights have
been evolved till date through Hon’ble Supreme Court’s interpretations in its
judgements. Some other rights within the ambit of Article 21, which have been
evolved through various precedents of Apex Court, but have not been covered
in detail in this write-up are: right to environment, Right of prisoners, right to
speedy and fair trial, right against sexual harassment, right against handcuffing,
right to medical care, Right to food and right against malnutrition, right against
custodial violence, right not to be subjected to bonded labour, right to Legal
Aid, right against solitary confinement, right against bar fetters, right to pure
drinking water, right to reputation, etc.

Thus, to meet the new challenges in the society and to fulfil the dynamic needs
of the society the judicial system or the legislature will come up with new facets
of article 21.

Q.12 DISCUSS THE VARIOUS RIGHTS ENSHRINED IN AMERICAN CONVENTION

OF HUMAN RIGHTS.

ANS. The American Convention on Human Rights is an international human rights instrument
aimed at establishing a system of personal liberty and social justice based on respect for the
essential rights of man. The convention emphasizes on respecting the recognized rights and
freedoms guaranteed to all persons. It further provides that every individual must be given the
full freedom to exercise their rights and freedoms without any discrimination on the basis of
race, color, sex, language, religion, political or other opinion, national or social origin, economic
status, birth, or any other social condition. It generally lays down the standards on human rights
that must be observed in all the states of America.

The American Convention on Human Rights was adopted in the year 1969 at the meeting of the
states of America in San José, Costa Rica. It came into force in the year 1978. The Inter-
American Commission on Human Rights and the Inter-American Court of Human Rights are the
principal bodies that are responsible for the observance of the provisions laid down in the
convention. The American Convention on Human Rights is also known as the Pact of San José.

The was concluded at San Jose, Costa Rica on 22 Nov 1969 and entered into force in July 1978,
ratified by 25 member states. The United State signed the convention and President Jimmy
Carter referred it to Senate for advice and consent to ratification.

The two additional protocols Economic, Cultural, Social rights and other Abolition of Death
penalty have not as yet entered into force. The convention consists of dozens of civil and
political rights. These are right to life, right to personal liberty, rights to free trial, right to human
treatment, right to nationality, right to property, rights of children right to juridical personality,
freedom from slavery, freedom of religion, freedom of speech, thoughts, expression, conscience,
freedom of association, rights of family, freedom of movement and residence, freedom from ex
post facto laws, rights to privacy, right to name, right to compensation for miscarriage of justice,
right of reply, right of assembly, right to participate in government, right to equal protection of
law, right to judicial protection.

The state parties take progressive social, economic, educational measures for full realization of
rights and supplemented by board non-discrimination clauses.

The Convention provides for the establishment of Inter-American Commission of Human Rights
and Inter Court of human Rights and confers with competence respect to matter blasting to
fulfillment of the commitment made by state parties.
Implementation of procedure of American convention on Human rights by commission
appointed and elected by all OAS members. Article I of convention states. “The state parties to
the convention have an obligation not only to respect the ensure their three and full exercise.
They have both positive and negative duties that are they have the obligation not to violate the
rights which the convention guarantees and are required to adopt the measures may be necessary
and reasonable circumstances to ensure full enjoyment.

The extensive interpretation of obligation under Article 1 of convention. Article 27 of

Convention allows state parties to derogate from their obligations in time of war, danger,
emergency, security. The American Convention declares that judicial remedies essential for
protection of non-derivable rights may not suspended.

Article 28 of convention deal with federal clause which enable federal state to assume more
limited obligations by binding itself only in relation to matter over which it exercise legislative
and judicial jurisdiction. The function of commission is spelled out in the Article 41 of
convention.

The Inter-American Commission on Human rights and Inter- American Court of human rights
are main organs of Convention.

Inter-American Court of Human Rights

The Inter-American Court of Human Rights (the ‘Court’) is the judicial organ of the Inter-
American system for the protection of human rights. Based in San José, Costa Rica, it was
established by the American Convention on Human Rights in 1978. The Court is composed of
seven jurists who are elected by the General Assembly and serve 6-year terms, once renewable.
The Court meets five times per year, with one of these meetings taking place outside of Costa
Rica in order to increase awareness of its work.

The Inter-American Court of Human Rights serves two primary functions (Chapter VIII,
American Convention on Human Rights):

 Adjudicatory function: the Court may issue judgments on cases referred to it by the Inter-
American Commission on Human Rights
  Advisory function: the Court may issue advisory opinions on the application of human
rights treaties at the request of member states or bodies within the OAS.

Unlike the European Court of Human Rights, individual may not access the Court directly. All
individual complaints must first go through the Inter-American Commission on Human Rights,
which may then decide to refer the case to the Court.

Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights (the “Commission”) was established in 1959
at the 5th Meeting of Consultation of Ministers of Foreign Affairs and is one of the primary
institutions that make up the Inter-American system for the protection of human rights. It is a
quasi-judicial body that now receives 1,500 individual complaints per year. Based in Washington
D.C. (USA) the Commission consists of seven independent human rights experts serving four-
year terms, once renewable. Each experts is nominated by his/her member state and elected by
the OAS General Assembly. These experts contribute to the general work of the Commission
and are individually designated as a Rapporteur on specific OAS states and thematic areas of
concern. Thematic rapporteurships include:

In 1976, the American Convention on Human Rights entered into force and the OAS Charter has
been amended to include the Commission as the primary human rights body of the OAS. The
work of the Commission is built on three main pillars:

 Individual complaints
 Monitoring human rights in member states
 Focus on thematic areas on concern

The Commission has an Executive Secretariat of professional and administrative staff to help
Commissioners carry out their work, managing correspondence with petitioners and states and
preparing cases and petitions for Commissioners’ decisions.

The Inter-American Commission on Human Rights is responsible for (Article 41, American
Convention on Human Rights):

 Developing an awareness of human rights among the peoples of America;

  Making recommendations to the governments of the member states, when it considers
such action advisable, for the adoption of progressive measures in favour of human rights
within the framework of their domestic law and constitutional provisions as well as
appropriate measures to further the observance of those rights;
 Preparing studies or reports as it considers advisable in the performance of its duties;
 Requesting the governments of the member states to supply it with information on the
measures adopted by them in matters of human rights;
 Responding, through the General Secretariat of the Organization of American States, to
inquiries made by the member states on matters related to human rights and, within the
limits of its possibilities, to provide those states with the advisory services they request;
 Taking action on individual complaints and other communications
 Submitting an annual report to the General Assembly.

Q.13 GIVE AN ACCOUNT OF JUDICIAL ACTIVISM IN INDIA WITH UPHOLDING

HUMAN RIGHTS.

ANS. INTRODUCTION

Judicial review means overseeing by the judiciary of the exercise of power by other co- ordinate
organs of government with a view to ensuring that they remain confined to the limits drawn upon
their powers by the Constitution. Britain extended the practice of judicial review of legislation to
colonies such as India whose constituent acts enacted by British Parliament laid down the limits
of the legislative power vested in the colonial legislatures. India therefore experienced judicial
review of legislations as well as executive acts since the days of British rule. Since there was no
bill of rights in the constituent acts, the scope of judicial review was limited. The courts in India
followed the policy of maximum judicial restraint. The judicial attitude in countries ruled by
Britain was to interfere with legislative acts only if they clearly transgressed the limits drawn
upon their powers. This attitude was influenced by the theory of parliamentary supremacy and
the courts denied that they had anything to do with policy or principles beyond what was clearly
laid down by the words. The judges in India were brought up in the British tradition of
parliamentary supremacy and therefore rarely questioned the validity of the legislative action
except on the ground of its being ultra vires.
The Indians demanded that their constitution should contain a declaration of fundamental rights
but that demand was not conceded by the British government till the passing of Government of
India Act, 1935. The traditional British distrust of such declarations was behind the rejection of
such a demand. On the other hand, the Indians saw in a bill of rights an assurance to the
minorities of their rights, and a safeguard against arbitrary rule. The Constitution of India of
1950 contained a bill of rights in Part III under the caption ‘Fundamental rights’ and declared
that any law that takes away or abridges any of the fundamental rights shall be void. However,
while vesting such power of judicial review in the High Courts and Supreme Court, maximum
care was taken to prevent the courts in India from being more than auditors of legality. The rights
were defined and restrictions upon them were also defined with precision so as to leave the least
discretion with the courts.

JUDICIAL ACTIVISM

Black’s Law Dictionary defined judicial activism as a “philosophy of judicial decision-making

whereby judges allow their personal views about public policy, among other factors, to guide
their decisions…” The flipside of judicial activism is Judicial Restraint, which is defined as “the
philosophy of judicial decision-making whereby judges base their decisions on the doctrine of
‘stare decisis’ (relying on precedents) to maintain the status quo.

Judicial activism can be positive as well as negative. A court engaged in altering the power
relations to make them more equitable is said to be positively activist and a court using its
ingenuity to maintain the status quo in power relations is said to be negatively activist.

Judicial review is an essential component of the rule of law, which is a basic feature
of the Indian Constitution. Every State action has to be tested on the anvil of rule of
law and that exercise is performed, when occasion arises by the reason of a doubt
raised in that behalf, by the courts. This well-established constitutional principle of
the existence of the power of judicial review and its need was indicated by Chief
Justice Marshall in Marbury v. Madison . He said: "It is emphatically the province and
1

duty of the judicial department to say what the law is." At that time, it appeared to
be an innovation or an act which is now being termed as "judicial activism".
However, no one since then has doubted the correctness of this constitutional
imperative in the scheme of separation of powers. Over a period of 47 years,
beginning from 1950 when the Constitution conferred on the High Courts, the power
to issue prerogative orders and writs, the judiciary in India has come to control by
judicial review every aspect of governmental and public functions. Every legislation is
amenable to judicial review, be it momentous amendments to the Constitution or
drawing up of schemes and bye-laws of municipal bodies which affect the life of a
citizen. Judicial review extends to every governmental or executive action - from high
policy matters like the President's power to issue a proclamation on failure of
constitutional machinery in the States like in Bommai case , to the highly
2

discretionary exercise of the prerogative of pardon like in Kehar Singh case or the
3

right to go abroad as in Satwant Singh case . Judicial review knows no bounds except
4

the restraint of the judges themselves regarding justiciability of an issue in a

particular case.

In Nilabati Behera v. State of Orissa the Supreme Court while considering the
5

question of grant of relief in a case of custodial death of the son of the petitioner
opined that the old doctrine of only relegating the aggrieved to the remedies
available in civil law limits the role of the courts too much as the "protector and
guarantor of the indefeasible human rights of the citizens" and went on to say that
the courts have an obligation to satisfy the social aspirations of the citizens because
the courts and the law are for the people and expected to respond to their
aspirations. The Court, therefore, in that case moulded the relief by granting
compensation by way of penalizing the wrongdoer and fixing the liability for the
public wrong on the State which failed in its public duty to protect human rights of
the citizen. It was stressed that a public body or officials should not act unlawfully
and should perform their public duties in accordance with law. This was done by the
Court in exercise of its public law jurisdiction. The Court explained the purpose of
public law and said "that the purpose of public law is not only to civilize public
power" but also to assure to the citizen that they live under a legal system which
aims to protect and preserve the rule of law. Thus, new "tools" were invented to give
redress to the citizen.

The Supreme Court has been consistently expanding the dimensions of Article 21 (Right to Life
and Personal Liberty) within the bounds of law by purposeful interpretations. More than fifteen
years ago in Francis Coralie Mullin v. Administrator, Union Territory of Delhi14 Justice
Bhagwati observed: (SCC pp. 618-19, para 8)

"The right to life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities
for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and
commingling with fellow human beings. The magnitude and content of the components of this
right would depend upon the extent of the economic development of the country, but it must, in
any view of the matter, include the right to the basic necessities of life and also the right to carry
on such functions and activities as constitute the bare minimum expression of the human self.
Every act which offends against or impairs human dignity would constitute deprivation pro tanto
of this right to live and it would have to be in accordance with reasonable, fair and just procedure
established by law which stands the test of other fundamental rights."

In Bandhua Mukti Morcha case15 the Supreme Court reiterated once again that right to life
guaranteed by Article 21 included the right to live with human dignity, free from exploitation. In
Mohini Jain case16 the Court held the right to free education to the children until they complete
the age of 14 years also to be a fundamental right by taking note of Article 45 of the
Constitution. The concern of the courts for the underprivileged and the poor sections of the
society was reflected a decade ago in Bihar Legal Support Society v. Chief Justice of India17
when the Court said: (SCC p. 768, para 2)

"... that the weaker sections of Indian humanity have been deprived of justice for long, long
years: they have had no access to justice on account of their poverty, ignorance and illiteracy.
They are not aware of the rights and benefits conferred upon them by the Constitution and the
law. On account of their socially and economically disadvantaged position they lack the capacity
to assert their rights and they do not have the material resources with which to enforce their
social and economic entitlements and combat exploitation and injustice."

In M.H. Hoskot case18 , the Supreme Court recognised the right of an indigent person to have
legal aid.

The courts have been making judicial intervention in cases concerning violation of human rights
as an ongoing judicial process. Decisions on such matters as the right to protection against
solitary confinement as in Sunil Batra19 the right not to be held in fetters as in Sobraj case20
the right against handcuffing as in T. Vatheeswaran case21 the right against custodial violence
as in Nilabati Behera case5 or the rights of the arrestee as in D.K. Basu case22 or right of the
female employees not to be sexually harassed at the place of work as in the case of Vishaka v.
State of Rajasthan23 are just a few pointers in that directions. I need not multiply illustrations.

It would, therefore, be wrong to call it as an act of "judicial activism" when the judiciary in
discharge of its constitutional powers seeks to protect the human rights of the citizens in case
after case where a citizen has been deprived of his life or liberty otherwise than in accordance
with the procedure prescribed by law or when the courts insist upon "transparency and
accountability" in respect of the orders made or action taken by public servants. The requirement
that every State action must satisfy the test of fairness and non-arbitrariness are judicially
evolved principles which now form part of the constitutional law.

There is of late some criticism also of the judiciary in respect of its role in cases involving
environment. It is said that courts have started acting as "environmentalists" without "any
expertise" in that field and that the courts earlier on did not venture into this field.

The right to pollution-free environment has to be conceived of as a human right being a facet of
right to life guaranteed by Article 21. Let us not forget that while human rights are necessary to
promote the personality development of human beings, healthy environment is necessary to
safeguard conditions conducive to such a personality development. There is a natural link
between environment, development and human rights. It ought to be remembered that human
rights are based on mankind's increasing demand for a decent, civilised life in which the inherent
dignity of each human being must receive respect and protection. Human rights are fundamental
to human nature and therefore the relationship between environment and human rights becomes
much too obvious. In other words, human rights and environment are interdependent. As such it
can be legitimately argued that the right to an adequate environment is a human right because
human species cannot exist on this planet without proper environment. The Supreme Court has
ruled that right to pollution-free air falls under Article 21 in Subhash Kumar v. State of Bihar24 .

In the Doon Valley case, Article 21 was invoked by the Court to prevent the degradation of
Mussoorie Hills due to the mining operations there, which was becoming a health hazard. The
Court held that Article 21 included in its sweep a right to clean environment and that the
permanent assets of mankind cannot be allowed to be exhausted in our generation. Again, in
M.C. Mehta v. Union of India26 the Supreme Court reiterated the fundamental right to a clean
environment for healthy living and held that pollution treatment plant is a fore-condition of the
existence and continuation of an industry. It observed: (SCC p. 478, para 14)

"Just like an industry which cannot pay minimum wages to its workers, cannot be allowed to
exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue..."

as otherwise it would pose a threat to the health and well-being of the citizens residing in the
surrounding areas.

In the Oleum Gas Leak case27 the rule of strict liability was applied without exception to a
polluting undertaking employing hazardous process of manufacture. Bhagwati, C.J. observed in
this case:

"An enterprise engaged in hazardous or inherently dangerous industrial activity posing a

potential threat to the health and safety of persons working in the factory and residing in the
surrounding area was under an obligation to pay compensation for the injury caused."

Article 48-A of the Constitution provides:

"48-A. Protection and improvement of environment and safeguarding of forests and wild life.-
The State shall endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country."

Indeed, this article is a part of the Directive Principles of the State Policy and not of the Chapter
on Fundamental Rights. But the Directive Principles of State Policy are complementary to the
fundamental rights guaranteed under the Constitution of India as they spell out the obligation of
the State towards the citizens in the discharge of its functions. Resort had by the judiciary to the
directive principles for interpreting the content of the fundamental rights is therefore logical. A
reference to Article 51-A(g) detailing the fundamental duties of the citizens, which reads, "to
protect and improve the natural environment including forests, lakes, rivers and wild life, and to
have compassion for living creatures", is also interesting in this context.

It also needs to be stated that the courts when they deal with cases concerning "environment" do
not by themselves act as experts. They rely upon expert bodies like National Environment
Engineering Research Institute (NEERI) which are requested by the courts to examine the
grievance relating to environmental pollution and submit their report. The courts also call upon
the Pollution Control Boards of the Union or the State, as the case may be, to submit their reports
and then base their judgments on expert opinion. The argument that courts were hithertofore not
entering into this domain, does not mean that courts should not act when called upon by the
citizens to protect the environment so as to make it possible for the citizens to enjoy the right of
healthy and decent life guaranteed by Article 21 of the Constitution. The argument that since it
has not been done before therefore it should not be done now is illogical. If courts do not
interpret the law in a manner consistent with the mandate of Article 21, only because it had not
been done before, then while the society would move, the law would remain static and that
would be bad both for law and the society. Law must move with the society so as to respond to
its hopes and aspirations.

It must, however, be remembered that the Judges in exercise of their power of judicial review,
are not expected to decide a dispute or controversy which is purely theoretical or for which there
are no judicially manageable standards available with them. The courts do not generally speaking
interfere with the policy matters of the executive unless the policy is either against the
Constitution or some statute or is actuated by mala fides. Policy matters, fiscal or otherwise, are
thus best left to the judgment of the executive. However, once it is conceded that right to life
guaranteed by Article 21 includes the right to live decently, the interference by the courts to
ensure the same by making attempts to prevent pollution of environment cannot but be
considered as a legitimate exercise in discharge of the constitutional obligation by the judiciary.
Having talked about human rights and the constitutional obligations of the courts to protect the
same, there is one important aspect which needs to be dealt with by me and that is the need of
"self-restraint" by the Judges while expanding and expounding the law in response to the call and
need of the society in exercise of their power of judicial review.

It is in fact stating the obvious to say that courts must while exercising the power of judicial
review exercise restraint and base their decisions on the recognised doctrines or principles of
law. Judicial activism and judicial restraint are two sides of the same coin. It is therefore
essential to remember that judicial restraint in the exercise of its functions is of equal importance
for the judiciary while discharging its judicial obligations under the Constitution. With a view to
see that judicial activism does not become "judicial adventurism" and lead a Judge going in
pursuits of his own notions of justice and beauty, ignoring the limits of law, the bounds of his
jurisdiction and the binding precedents, it is necessary and essential that "public interest
litigation" which is taken recourse to for reaching justice to those who are for variety of reasons
unable to approach the court to protect their fundamental rights should develop on a consistent
and firm path. The courts must be careful to see that by their overzealousness they do not cause
any uncertainty or confusion either through their observations during the hearing of a case or
through their written verdicts. If unmindful of the expected restraint, the courts make
observations orally or through written decisions, one way or the other, under the cover of judicial
activism, they may consciously or unconsciously cause uncertainty and confusion in the law. In
that event, the law will not only develop along uncertain lines instead of straight and consistent
path but the judiciary's image may also in the bargain get tarnished and its respectability eroded.
That would be a sad day. Judicial authoritarianism cannot be permitted under any circumstances.
The courts, therefore, have to be very careful to see that their exercise of judicial creativity for
attaining social change is not allowed to run amuck and every court functions within the bounds
of its own prescribed jurisdiction. The courts have the duty of implementing the constitutional
safeguards that protect individual rights but they cannot push back the limits of the Constitution
to accommodate the challenged violation. All it means is that Judges are expected to be
circumspect and self-disciplined in the discharge of their judicial functions.

The virtue of humility in the Judges, a constant awareness that the investment of power in them
is meant for use in public interest and to uphold the majesty of rule of law and the realisation that
Judges are not infallible even if final, would ensure the requisite self-restraint in discharge of all
judicial functions because all actions of a Judge must be judicious in character. As Justice
Michael Kirby of the High Court of Australia rightly said, not too long ago, while addressing
Bangalore Advocates Association on 13-1-1997, "of Judges, the community expects honesty,
integrity and learning".

Olga Tellis v. Bombay Municipal Corporation, the Court admitted at the abstract level that
everyone had the right to shelter as part of his right to live. But the court was faced with persons
who were living on footpaths and they had to be removed in order to clear footpaths for
pedestrians. Therefore, the court said that the Bombay Municipal Corporation could evict them
by issuing a notice and following the procedure laid down under the Bombay Municipal
Corporation Act. So the right to shelter, as a fundamental right, turned out to be a platitude when
it could be dispensed with by the corporation after following proper procedure.

Mohini Jain v Karnataka[33]: In this case, the Supreme Court held that the right to education was
included within right to life. The court realizing the impracticability of such a proposition, tried
to narrow down the dictum in Unni Krishnan v. A.P.[34], where it said that the right to live
included the right to primary education. Here again, we find that the court has verged on
populism. The Constitution in one of the directive principles of state policy specifically enjoins
on the state to provide within a period of ten years free and compulsory primary education for all
children below the age of fourteen years[35]. It is not for the Court to convert a directive
principle of State policy into a fundamental right. Where the literacy rate has been around fifty
percent, to say that all Indian people have a fundamental right to primary education is an exercise
of romanticism. These are second generation human rights, which consist of social and economic
rights of a positive nature and have to be backed up by political action. The rights such as right to
education or right to livelihood can be a reality only when the state allocates resources for
providing education or jobs to people. This will depend on the economic policies the State
pursues.

Justice P.B. Sawant speaking in Delhi Development Horticulture Employees’ Union v. Delhi
Administration[36] observed: “This country has so far not found it feasible to incorporate the
right to livelihood as a fundamental right in the Constitution. This is because the country has so
far not attained the capacity to guarantee it and not because it considers it any the less
fundamental to life. Advisedly, therefore, it has been placed in the chapter on Directive
Principles”.

Right to electricity is right to life: In K. Aacharya v C.M.D.W.B.S.E. Distribution Co. Ltd.[37],

the Court held that the right to electricity is right to life and liberty in terms of art.21 of the
Constitution. In modern days no one can survive without electricity. This is another example of
judicial populism. How can the Court provide electricity to people? Providing electricity depends
on the policies and measures taken by the State. It depends on the state policies and development
in the area where such demand arises.

Right to Sleep: In Ram Lila Maidan Case[38], Justice B.S. Chauhan in his opinion wrote that
when police disturbed the crowd in night at 1:00 AM their right to sleep was violated. He holds
that right to sleep forms an essential part of Article 21 which guarantees personal liberty and life
to all. It was observed: “Sleep is essential for a human being to maintain the delicate balance of
health necessary for its very existence and survival. Sleep is, therefore, a fundamental and basic
requirement without which the existence of life itself would be in peril.” Undoubtedly, sleep is
absolutely necessary; it is an essential requirement. But granting it the status of a right at par with
right to food is stretching the concept of right to a preposterous level. Such a judgment can lead
to Diwali revelers being jailed for infringing upon the right to sleep when they burst firecrackers
closer to the midnight hour. It will have factory workers on night shift manufacture excuses like
lack of sleep as reason for inefficient performance. As a society, we shall begin to discourage
most nocturnal activities because those might interfere with our sleeping habit.

CONCLUSION

Judicial activism is not an aberration. It is an essential aspect of the dynamics of a constitutional

court. It is a counter-majoritarian check on democracy. Judicial activism, however, does not
mean governance by the judiciary. It also must function within the limits of the judicial process.
Within those limits, it performs the function of legitimizing or, more rarely, stigmatizing the
actions of the other organs of government. The judiciary is the weakest organ of the State. It
becomes strong only when people repose faith in it. Such faith of the people constitutes the
legitimacy of the Court and of judicial activism. Courts have to continuously strive to sustain
their legitimacy. They do not have to bow to public pressure, rather they have to stand firm
against any pressure.
While it is imperative to exercise justifiable restraint and caution to ensure that judicial activism
does not become judicial adventurism or tyranny, this power should be exercised only in
exceptional circumstances and that too, only in public interest. Truly, judicial activism “is the
oxygen of the rule of law”. The constitutional revolution, which was the vision of the Founding
Fathers, was entrusted to the judiciary, giving it powers to enforce, through “writ power”, the
socio economic liberation implicit in the fundamental rights and other avant-garde provisions of
the Indian Constitution- the oasis of our democracy. “It is the courts, which have stood the test of
time and served the cause of social-economic justice only to preserve the fundamental rights and
duties of the citizen. When the executive violates these rights, the court cannot abdicate its
responsibility or jurisdiction, oath bound as it is, to uphold the Constitution.”

Q.14 EXPLAIN THE VARIOUS MODES FOR THE IMPLEMENTATION OF HUMAN

RIGHTS UNDER COVENANT ON ECONOMIC AND SOCIAL AND CULTURAL
RIGHTS.

ANS. INTRODUCTION

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. Although some economic,
social, and cultural rights cannot be immediately implemented, States that have ratified the
relevant treaties nonetheless have the obligation to guarantee these rights.

Specifically, States have an obligation to respect, protect, and fulfill economic, social, and
cultural rights. The obligation to respect means States cannot interfere with enjoyment of the
right. The obligation to protect requires the State to reasonably prevent other actors from
interfering with enjoyment of the right. The obligation to fulfill mandates that the State actively
take steps to create the conditions necessary for individuals’ full enjoyment of the right.

Legal Protections

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).

International human rights law recognizes that the “full realization of all economic, social and
cultural rights will generally not be able to be achieved in a short period of time.”

States parties to the ICESCR have the obligation “to take steps, individually and through
international assistance and co-operation,” to the “maximum of available resources, with a view
to achieving progressively the full realization of the rights recognized.”

States must initiate such steps within a reasonably short time. In the understanding of the
CESCR, these steps should be “deliberate, concrete, and targeted as clearly as possible” toward
meeting the obligations. See id. States should use legislative measures to progressively realize
the rights; however, doing so will not automatically fulfill the obligations under the ICESCR if
other “appropriate” measures are still available. Those may include judicial, administrative,
financial, educational, and social measures.

Immediate Implementation

While many ESC rights are subject to progressive realization, the UN Committee on Economic,
Social and Cultural Rights (CESCR) has identified certain rights and obligations that the State
should immediately implement, including:

 undertaking to ensure the equal right of men and women in their enjoyment of economic,
social, and cultural rights (art. 3);
 providing all workers with fair wages and equal remuneration for work of equal value
without any distinction, particularly guaranteeing that women’s conditions of work are
not inferior to men’s work conditions (art. 7(a)(1));
 ensuring the right to form and join trade unions, and to go on strike (art. 8);
 protecting children from economic and social exploitation, including enacting legislation
that provides a minimum age for employment and punishes dangerous working
conditions for children (art. 10(3));
 providing free and compulsory primary education (art. 13(2)(a));
  allowing parents and legal guardians to choose their children’s schools, and respecting
the liberty of individuals and bodies to establish educational institutions (arts. 13(3),
13(4)); and,
 respecting the freedom indispensable for scientific research and creative activity (art.
15(3)).

Justiciability

In order for a right to be “justiciable,” meaning capable of being evaluated or enforced under the
law, States must incorporate the content of the right into domestic law and the law must provide
individuals with an effective remedy for addressing alleged violations. The effective remedy
does not have to be judicial, and in certain circumstances an administrative remedy may be
appropriate.

Economic, social, and cultural rights are often mistakenly considered non-justiciable. Some
argue that courts should not determine how resources are allocated, and that political authorities
are better equipped to address such matters. The CESCR has rejected this argument, stating that
courts are already involved with decision-making that involves resource allocation. Domestic and
international case law demonstrates that economic, social, and cultural rights are justiciable.

The CESCR has identified two aspects of the implementation of ESCR that are always
justiciable:
 Minimum Core Obligations: States must meet the minimum core obligation of the
right. For example, States must ensure the general availability of essential food,
primary health care, basic shelter, and basic education. Otherwise, the State will be
considered to be failing to meet its obligations under the ICESCR unless it
demonstrates it has taken every effort to use all its resources to satisfy the minimum
obligations.

The State’s total available resources are taken into account when evaluating its minimum core
obligation. For example, if one State operates 100 primary schools but has very few resources,
that State might be meeting its minimum core obligation. Conversely, if another State has ample
resources and 100 schools, it might not be meeting its minimum core obligation if it is not using
its “maximum available resources” to secure basic education. The “minimum core” is considered
the baseline of the obligation to progressively realize rights.
  Retrogressive Measures: States may not take deliberately retrogressive measures, which are
actions that hinder the realization of an economic, social, or cultural right. Since States are
obligated to progressively realize ESCR, they must fully justify any government action that
impedes or reduces enjoyment of these rights.

For example, if a State implements a policy or practice that further limits access to water, the
burden is on the State to prove that the measures were only justified based on “the most careful
consideration of all alternatives” and taking into account all economic, social, and cultural rights
in deciding how to use its maximum available resources.

The reasonableness standard is another way to measure State compliance with ESCR
obligations. This standard is sometimes used instead of or in conjunction with the core
minimum obligation standard. When using the reasonableness model, adjudicatory bodies
determine if States are taking steps toward fulfilling their obligations, and if so, whether these
measures are reasonable. If the measures are found to be unreasonable, the State is required to
revise them.

The Inter-American system has established standards that guide States in strengthening the
judicial protection of economic, social, and cultural rights, focusing on: the State’s obligation to
remove economic obstacles to ensure access to the courts, due process of law in administrative
and judicial proceedings, and effective judicial protection of individual and collective rights.

Adequate access to information is essential for individuals to effectively participate in the

development and implementation of public policies concerning ESCR. In this regard, the Inter-
American Commission on Human Rights has stated that governments must make such
information available, especially when citizens have no other way of accessing it.

The following Special Procedures monitor and promote economic, social and cultural
rights:
 Independent Expert on the effects of foreign debt and other related international
financial obligations of states on the full enjoyment of all human rights, particularly
economic, social and cultural rights
 Independent Expert on human rights and the environment
 Intergovernmental Working Group on the right to development
 Special Rapporteur on adequate housing as a component of the right to an adequate
standard of living, and on the right to non-discrimination in this context
 Special Rapporteur on extreme poverty and human rights
 Special Rapporteur in the field of cultural rights
 Special Rapporteur on the human right to safe drinking water and sanitation
  Special Rapporteur on the right to education
 Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health
 Special Rapporteur on the right to food
 Special Rapporteur on the rights of indigenous people

Q. 15 WHAT ARE HUMAN RIGHTS,HOW DO THEY HELP US AND FROM WHERE

THEY CAME FROM?

Human rights are the basic rights and freedoms that belong to every person in the world, from
birth until death. They apply regardless of where you are from, what you believe or how you
choose to live your life.

They can never be taken away, although they can sometimes be restricted – for example if a
person breaks the law, or in the interests of national security.

These basic rights are based on shared values like dignity, fairness, equality, respect and
independence. These values are defined and protected by law. In Britain our human rights are
protected by the Human Rights Act 1998.

How do human rights help you?

Human rights are relevant to all of us, not just those who face repression or mistreatment. They
protect you in many areas of your day-to-day life, including:

• your right to have and express your own opinions

• your right to an education

• your right to a private and family life

• your right not to be mistreated or wrongly punished by the state

Where do human rights come from?

The idea that human beings should have a set of basic rights and freedoms has deep roots in
Britain. Landmark developments in Britain include:
• the Magna Carta of 1215

• the Habeas Corpus Act of 1679

• the Bill of Rights of 1689

The atrocities of the Second World War made the protection of human rights an international
priority. The United Nations was founded in 1945. It allowed more than 50 Member States to
contribute to the Universal Declaration of Human Rights, adopted in 1948. This was the first
attempt to set out at a global level the fundamental rights and freedoms shared by all human
beings.

The Declaration formed the basis for the European Convention on Human Rights, adopted in
1950. British lawyers played a key role in drafting the Convention, with Winston Churchill
heavily involved. It protects the human rights of people in countries that belong to the Council of
Europe, including the UK.

The Human Rights Act 1998 made these rights part of our domestic law. The Act means that
courts in the United Kingdom can hear human rights cases. Before it was passed, people had to
take their complaints to the European Court of Human Rights in Strasbourg, France.