Download Human Right violation of India and more Lecture notes Law in PDF only on Docsity!
KLE LAW ACADEMY BELAGAVI
(Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai)
STUDY MATERIAL
for
HUMAN RIGHTS LAW
Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi
Compiled by
Sharada K.S., Asst. Prof.
Zeenia S, Asst. Prof.
Reviewed by
Jomy George, Asst. Prof.
K.L.E. Society's Law College, Bengaluru
This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided.
DISCLAIMER: THIS IS A WORK OF COMPILATION FROM DIFFERENT SOURCES, THE
DUE CREDITS OF WHICH ARE ACCORDED BY THEIR MENTION IN THE BIBLIOGRAPHY.
CONTENTS
THE ROLE OF NGOS IN THE PROTECTION OF HUMAN
- Syllabus Sl. No. Particulars Page No.
- Unit - 1 Introduction - Jurisprudence of Human Rights 3 - - NATURAL LAW AND NATURAL RIGHTS^4 - - DEFINITION ON HUMAN RIGHTS^7 - - 9 - New attitude to the concept of human rights in 20thcentury - THEORIES 15 - - CLASSIFICATION OF HUMAN RIGHTS 19,
- Unit - 2 UDHR, ICCPR & ICESCR 21 - - UDHR 21 - - ICCPR 37 - - ICESCR 43 -
- Unit - 3 Regional Protection of Human rights 57 - - EUROPEAN SYSTEM 57 - - AMERICAN SYSTEM 77 - - AFRICAN SYSTEM 96 -
- Unit - 4 Protection of Human Rights at national level 106 - - Origin and development of human rights in India 107 - - Human rights guaranteed under the Constitution of India 110 - - Judicial expansion of rights 120 - - PROTECTION OF HUMAN RIGHTS ACT, 1993^134 - - HUMAN RIGHTS COURTS IN INDIA 141 - - NHRC & SHRC 149 -
- Unit - 5 Human Rights and Vulnerable Groups 172 - - RIGHTS OF WOMEN 172 - - RIGHTS OF CHILDREN 185 - - RIGHTS OF DISABLED 206 - - RIGHTS OF THE SCHEDULED TRIBES 215 - - RIGHTS OF THE SCHEDULED CASTE 223 - - RIGHTS OF AGED 228 - - RIGHTS OF MINORITIES 248 - - 255 - RIGHTS
HUMAN RIGHTS LAW AND PRACTICE
UNIT I – JURISPRUDENCE OF HUMAN RIGHTS
Synopsis
Introduction NATURAL LAW AND NATURAL RIGHTS o Natural law and natural rights in ancient times o Natural law and natural rights in middleages o Natural law and natural rights in 17th^ and 18thcentury o Natural rights and doctrine of humanitarian intervention in 19thcentury DEFINITION ON HUMAN RIGHTS New attitude to the concept of human rights in 20thcentury The leagues of nations and human rights Human rights provisions under the UN Charter THEORIES OF HUMAN RIGHTS o The theory of natural rights o The legal theory of rights o The anti-utilitarian theory of rights o The legal realist theory of rights o The Marxist theory of rights CLASSIFICATION OF HUMAN RIGHTS a. Natural rights b. Moral rights c. Fundamental rights d. Legal rights e. Civil and political rights f. Economic, social and cultural rights.
Introduction
The philosophy of Human Rights is reflected in the following popular version “Loka Samastha Sukhino Bhawanthu ” which means that the entire humanity be happy. The greatest gift of classical and contemporary human thought to culture and civilization is the notion of Human Rights. The struggle to preserve, protect and promote basic Human Rights continues in every generation in every society. New rights arise from the womb of the old. Today we widen the sphere of Human Rights thought and action to new areas andconstituencies. Human Rights are rooted in the culture and values of every nation of the world. To understand the true significance of the concept of Human Rights, we must know its historical context. The development of Human Rights and then recognition and protection at the international level can be divided into different periods. It would therefore be logical to start with the concept of natural right which eventually led to the formulation of HumanRights.
Natural Law and Natural Rights
Natural Law and Natural Rights in Ancient times The idea of Natural Rights is very old. In the classical literature of Ancient Greece from 5th^ century B.C. we come across a striking expression of the belief in the power exercised by the gods on human society, based on law. According to the Ancient Greece writers, the god establishes a law which stand above the obligations and interdictions imposed by the rules of the community.In Roman law there was a distinction between national law (jus civile) and the law which is actually common to all nations (Jus gentium). Jus natural was the law of nature which is fixed and immutable, higher to all human laws derived from the dictates of right reason.
Natural Law and Natural Rights in 17th^ and 18thCentury
The key notion of the social contract theory implied the existence of rights which the individual possessed before entering organised society. The contributions of Hugo Grotius, Vattel, Pufendorfand Wolff in the development of the concept of natural rights arecommendable. There were other factors which emphasised the vitality of the natural rights of man. Milton’s appeal to the natural freedom of man was the basis of his claim to be ruled by law and not by the arbitrary whim of man; the insistence in the course of the puritan revolution, on natural rights in support of political freedom, social equality and universal suffrage; the place which Blackstone assigned to the natural rights of man are some of the examples of the factors which gave force to the doctrine of natural rights in 16th^ century. The Virginian Declaration of Rights of 1776; other similar Constitutional enactments in the same year; the Constitution of New York and of New Georgia of 1777, and that of Marsacheselts of 1780; the declaration of independence of 1776 and the Bill of Rights in the form of the first ten Amendments to the Constitution of America; the declaration of the Rights of Man and of the Citizen adopted in 1789 by the French National Assembly and prefixed to the Constitution of 1793 and 1795: all these expressly acknowledged the inherent rights of Man. All these enactments, the formal incorporation of the inherent Human Rights and the possibility of their consequent protection not only against the tyranny of kings but also against the intolerance of democratic majorities were a new idea. This was the first attempt to derive Human Rights from natural rights.
Natural Rights and Doctrine of Humanitarian Intervention in
19 thCentury
At the turn of the century after the French revolution the doctrine of natural law was a doctrine of abstract and immutable principles and of eternal and inviolable Human Rights. In England, Burke launched his attack against the assertion of the Natural Law doctrines.
In Germany, reaction against the philosophy of natural law emerges with “ Historical School ” of jurisprudence. But we come across the occasions in this century on which the doctrine of humanitarian intervention has been involved on behalf of countries. Such, for example was the intervention in 1827 by great Britain, France and Russia on behalf of the Greek revolutionaries, the numerous interventions protecting Turkish treatment of Armenians and other Christians and the protests by the United States in 1891 and 1905 against anti-Semitic outrages in Russia. From the beginning of the 19th^ century, attention was directed more to the rights of the individual than to the objective norms. But states have persistently claimed supreme authority over all persons with in their respective territories. Traditional international law recognized only states as the appropriate subjects of international law. In consequence, subject to permissible exception, relation between a state and its subject according to traditional prescriptions are a matter of domestic concern of law, not covered by rules of international law. Under this prescription, therefore an individual can not claim international rights as against his own state and in the absence of international agreements, he has no locus standi before an international court for demanding redress against the violation of rights by his home states. It is pertinent to note here that in spite of the inadequacies of traditional international law an increasing number of treaties were entered into the purpose of which was to protect the rights of certain classes of persons. Then there was A.V. Dicey’s concept of Rule of law as opposed to the influence of arbitrary power or wide discretionary powers. These developments of 18th^ and 19th^ century culminated the idea of HumanRights.
Definition on Human Rights
Although volumes have been written about human rights for ages, yet it is hard to define the term as it is a dynamic concept and endeavors to adopt itself to the needs of the day. It is for this reason that understanding and definition of the term depend heavily on the opinions and conditions prevailing in the given society at a given time. Since the socio-economic environment with which the question of and
D.D. Basu : “Human Rights as those minimal rights which every individual must have against the State or other public authority by virtue of his being a member of the human family, irrespective of any other consideration” Apart from the definitions provided by scholars, the Universal Declaration of Human Rights, 1948, refers Human Rights as inalienable rights of all members of the human family. The above definitions generally focus upon the idea that Human Rights apply to all human beings because they are human beings. D.D. Raphael : “Human Rights constitute those very rights which one has precisely because of being a human being”. Marting Golding : “Human Rights as act of claiming, performed on the level of the human community”.
New Attitude to the concept of Human Rights in 20th^ Century
Great importance has been attached in the 20th century to the Human Rights issue in the international arena and tremendous efforts have been made, through the formulation of new principles and procedures to transfer the promotion and protection of basic rights, from the hands of the states to an authoritative super national organization. The uncompromising acceptance of the principle that “all men are born free and equal in dignity” has emerged pragmatically from the crucible of experience as the most valid of all working hypothesis of human relations. By the end of First World War, apart from political and civil rights the concepts of economic, social and cultural rights have also been developed. The idea that workers needed special safeguards was beginning to take hold in many industrial countries. Labour unions were establishing the right to collective bargaining; wages were being increased and hours were being reduced. The idea that the citizens had certain basic economic and social rights had been recognized in the Constitutions and Legislations of democratic countries.
The Leagues of Nations and Human Rights
After the First World, War the provisions of League of National Charter came into force. The covenant of the League of Nations reflected Human Rights. The phrase “Human Rights and Fundamental Freedoms” did not appear in the covenant. The
drafters of the covenant were pre-occupied with the maintenance of international peace and security, the pacific settlement of disputes, the establishments of a mandates system for former German and Ottoman territories and the protection of Minorities in central Europe. Neither the Council nor Assembly of the League subsequently dealt with the question of Human Rights. The wholesale and systematic suppression of Human Liberty in communist Russia, Fascist Italy and Nazi Germany were officially unnoticed by the League, although the implication of these acts of tyranny were recognized by many of its member States In collaboration with League of Nations the International Labour Organization which was set up in 1919 rendered signal service in the field of Human Rights. The ILO was established on the basis of the realization that universal peace could be achieved only if it were based on social justice. The Assembly of the League endorsed in 1925 the Geneva Declaration of the Rights of the Child. The international action to eliminate the worst social evils like slavery, forced labour, the traffic in narcotics and the traffic in women and children was greatly strengthened under the League. In particular the development of conventions and recommendations by the ILO emphasized a new international concern in labour problems, wages, working hours, working conditions and social security. These activities of the League reflect the growing acceptance of the concept that the affairs of labour were matters of international as well as national concern. In two fields of Human Rights, the League of Nations made a significant advance over the past. These fields are regulation of mandated territories and minorities system. The activities of the League in both these fields represented apart international concern with the Human Rights of individuals living in territories formerly governed by the enemy powers, and in part, the growing international concern with the right of self-determination of peoples and nations. The International Labour Organisation and the League of Nations thus touched some aspects of the fields of Human Rights. Concern was shown especially in the fields of slavery, forced labour, mandated territories and minorities. The major work of the League and the ILO has provided an efficient system for developing and coordinating new international machinery for economic and social cooperation rather than to define rights and to device measures for promoting them.
coming into force of the U.N. Charter, Human Rights were expressed in pious terms in treaties. Prior to coming into force of the U.N. Charter Human Rights movement was confined to abolition of slavery, humanitarian laws of welfare, and protection of Minorities. The brutality committed by the Nazis and fascists during the second world war made it imperative for a world organization to proclaim and advocate the protection of Human Rights. The U.N. Charter proclaims sacrosanct of Human Rights and Fundamental Freedoms. The United Nations Organization was primarily concerned with evolving a mechanism to maintain international peace and security. The first documentary uses of expression “Human Rights are to be found in the Charter of the United Nations”. In its preamble, the Charter interalia reaffirms its “Faith in Fundamental Human Rights….” and Article thereafter stated that the purposes of the United Nations shall be, amongothers, “To achieve international co-operation… in promoting and encouraging respect for Human Rights and for Fundamental Freedoms for all without distinction as to race, sex, languages, orreligion….”. The U.N Charter, however was not a binding instrumentand merely stated the idea which was later developed by the different agencies and organs. The Universal Declaration of Human Rights, which was adopted by the UN General Assembly on 10th December, 1948, has been proclaimed “as a common standard of achievement for all peoples and all nations”. It incorporates not only the traditional Civil Liberties but also Social, Economic and Cultural Rights. Together with it, the two principal international Human Rights instruments, namely the International Covenant on Civil and Political Rights, 1966 and the International Covenant on Economic, Social and Cultural Rights 1966 have given very wide connotation to the concept of Human Rights and fundamental freedoms. At regional level the European Convention on Human Rights was adopted in 1950, the Inter- American Convention on Human Rights in 1969, the African Charter on Human and Peoples‟ Rights in 1981; in 1994 the Council of the Arab League passed the Arab
Charter on Human Rights. In order to add emphasis upon all those categories of Human Rights contained therein and to exemplify them, a number of international Human Rights instruments have been concluded. Some of them may be mentioned here, such as, the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Conventional on the Elimination of All Forms of Discrimination Against Women; the Declaration on the Right to Development; the Convention on the Rights of Child; the Convention on the Rights of Persons with Disabilities; the Convention for the protection of all Persons from Enforced disappearance and many more. The question that, how far, the rights contained in the Universal Declaration of Human Rights, the two International Covenants and other Conventions have been translated into real rights of individuals, can be answered only after the examination of the individual legal system of the respective States. In the field of Human Rights, international conferences have been held, in the past, on specific issues of Human Rights. For instance, to deal with the problems of women, four international conferences have been convened under the auspices of the United Nations. Similarly, conferences have also been arranged to discuss other issues of Human Rights such as minorities, racial discrimination, crime and torture. These consequences have pushed the international community to focus on economic and social issues in their programmes. In addition to the above, international conferences have been convened to discuss all the aspects relating to Human Rights. Such conferences covered a variety of issues relating to the protection and promotion of Human Rights. The recognition and protection of Human Rights is nothing but the acknowledgement of the dignity of the human race, and are designed to enable each human individual to lead a life of fulfilment and achieve the maximum potential of the talents imbued by nature upon that individual. It is by the faithful and unstinted enforcement of these rights that civilization of the world can truly qualify to be called human civilizations, bereft of barbarism, cruelty and conduct shocking to the human conscience. It would also be the best
International conferences on Human Rights have also been arranged from time to time to discuss various issues of Human Rights issues relating to minorities, racial discrimination, crime, population, development and torture and many more. These conferences have pushed the International community to focus on economic and social issues in their programmes. So far as the protection and promotion of Human Rights are concerned the NGOs have rendered signal services since 1863 when the International Counsel of Red Cross was established. It is also clear that, in India, the movement for the protection of Human Rights started during British rule. Indian people demanded these rights from British Government. After independence, Fundamental Rights are incorporated in part-III of the Indian Constitution which bears close resemblance with Human Rights. In accordance with the mandate of International Covenants on Human Rights as well as the provisions of the Indian Constitution the government had enacted the protection of Human Rights Act 1993 to provide for the Constitution of National Human Rights Commission, State Human Rights Commissions in the States and Human Rights Courts at district level for better protection of Human Rights and for matters connected therewith or incidental thereto. In addition to the protection of Human Rights Act, 1993 there are certain legislations which directly or indirectly protect the Human Rights and Fundamental Freedoms of mankind in multidimensional approach. All these are in accordance with the mandate of Human Rights instruments as well as in accordance with the Constitutional provisions.
Theories of Human Rights
In order to have a comprehensive understanding of human rights, a look at the various theories becomes necessary to observe the shifting of priority of rights during the different phases of history. These theories provide the basis to determine the precise subject matter upon which there could be an agreement. An incisive insight into the major theories of rights is as follows:-
The Theory of Natural Rights
This is the earliest theory of rights.Its origin can be traced back to the ancient Greeks. According to this theory, rights belong to the man by nature and thus are self-evident truths. They are considered as inborn absolute, pre-civil and according to some, they are even pre-social. They can be asserted anywhere and everywhere. Thomas Paine, Grotius, Tom Paine and John Locke, to name a few, are the main exponents of this theory. These theorists derived their ideas about right from God, reason or a prior moral assumption. To them, every individual possesses a unique identity and is expected to account for his actions as per his own conscience. However, the critics of the natural rights theory argue that rights are abstract, absolute, or unidentified phenomenon. Liberty, as they argue, lives within restraints. So, restraints upon rights create social conditions where everyone has a share to develop his personality and ’correspondingly has his obligations to others. Rights and obligations, in fact, are the two sides of the same coin. Despite the above the theory of natural rights inspired the idea that any kind of unjust, arbitrary or oppressive treatment to human beings is an assault upon humanity itself. Apart from this, it also provided the basis, for the English, French and American revolutions, thereby resulting in the Bill of Rights. In order to have a comprehensive understanding of human rights, a look at the various theories becomes necessary to observe the shifting of priority of rights during the different phases of history. These theories provide the basis to determine the precise subject matter upon which there could be an agreement. An incisive insight into the major theories of rights is as follows:-
The Legal Theory of Rights
This theory is a reaction against the theory of natural rights. Advocates of this theory argue that the ideas of natural law and natural rights are an abstract and ridiculous phenomenon. Hence, the existence and enjoyment of the fundamental rights of an individual could be better maintained and practiced by the state rather than by the individual himself. Thomas Hobbes, John Austin, and Jeremy Bentham are the main propounders of this theory.
of the existing laws does not prescribe any solution in the form of super-value of a human being.
The Marxist Theory of Rights
Rights, according to Marx are simply concept and a product of bourgeois capitalist society primarily designed to maintain and reinforce the predominant position of the ruling class. This theory of rights is very simple and to a certain extent convincing too. Marx regards the state as a coercive agency to uphold the particular type of social organization and law is a tool of the state that perpetuates and safeguards the interest of the dominant group in the society. He firmly believes that rights can exist and flourish only in a classless society where all are equal and no one is an exploiter. Social and economic rights are, thus, the main concern of this theory. However, the contribution of Marxist thought to the development of international covenant on economic, social and cultural rights has been found in the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966. This theory, however, does not include religion, customs, traditions and mortality as integral components of human rights. To sum up, “There is not a single theory which can adequately explain the origin and nature of rights. Each theory is the product of its own time and in conformity with the genius of the people with whom the propounders of the theory were associated. There is some element of in all these theories. But there is one eternal truth which cannot be ignored that individual good and social good go together. Society is an organic unit and welfare of the community is built upon the welfare of the individuals, and both go hand in hand. Hence ,a good theory of rights should take into consideration the most conductive variable essential for the welfare of all members of a society.
CLASSIFICATION OF HUMAN RIGHTS
Human Rights broadly can be classified from two different perspectives: Firstly, from the perspective of different aspects of human life, civil, political moral, social, economical; and secondly from the perspective of the ways of securing them. The human rights can be classified asunder:
Natural Rights
Natural rights are those rights which are considered to be inherent and integral to human nature. In fact, every individual, by nature, is given an individual property of his own which cannot be taken away by any authority. Such rights include intellectual rights, rights of the mind and also rights of acting as an individual for his own comfort and happiness, provided they are not injurious to the natural rights of others.
Moral Rights
These rights are based on the general principles of fairness and justice. These are simply aspirations and ideals of the people who claim for it. Sometimes, people justify these rights on the ground of the role they perform or the position they occupy in society. For example, the mother of a family might complain that she has the right to be consulted about what is going on in her family. In this case, she is applying the principle that parents are entitled to be consulted when family decisions affect the members. So it is them oral duty of other members to do the same.
Fundamental Rights
There are certain rights which are more important and basic than the others. For example, right to life is the most basic of all rights upon which the enjoyment of other rights depends. Among other basic rights to be recognized as a person before the law, the right to equal protection under law, and freedom from illegal arrest or detention. These rights never be restricted or taken away by any authority. That is why, every society has a fundamental duty to protect these at all times.
Legal Rights
