HUMAN RIGHTS
Q. 1. Define ‘Human rights’. Discuss briefly various theories relating to Human Rights.
Ans. Human Rights are those fundamental and inalienable rights of individuals, which are essential for the existence of human beings. Human Rights are the rights which are necessary for every person irrespective of his or her nationality, race, religion, sex or place of living etc., simply because he or she is human being. Human Rights are thus inherent in human nature and without which he or she cannot survive as a human being. Human Rights facilitate the steady growth of human personality in physical, mental, spiritual and other fields.
Fawett has explained ‘Human Rights’ are sometimes called fundamental rights or basic or natural rights of individuals. As fundamental or basic rights, they are the rights which cannot, rather must not be taken away by any legislative Act of the Government, and which are often set out in a Constitution. As natural rights, they are seen as belonging to men and women by their vary nature”.
Various theories have been propounded in respect of natural or human rights of individuals. Important theories among them are discussed below:-
(1) Natural Law theory- The natural law theory is the oldest one. The credit of giving birth to natural law theory is given to Greek philosophers, like Socrates and Aristotle. It was further developed by Romans. The early original law of Romans was called “jus civile”. Later on the Romans developed another legal system called “jus gentium”, which was considered to be the law of universal application.
In “jus gentium” Romans enforced natural law. By natural law, Romans meant the sum of those principles which ought to control human conduct. Man by his nature was a rational and social being, thus natural law was based on the rational and reasonable needs of human nature. John Locke has stated that human being existed in a State of nature where men and women were in a State of freedom able to determine their actions and also in a State of equality.
However, the concept of natural law has been changing from time to time according to the needs of society.
(2) The Social Contract Theory. The social contract theory was closely linked with the theory of natural law because the natural law theory was formulated on the same basis on which the social contract theory was based. This theory was based on the writings of political philosophers as Thomas Hobbes, John Locke and Jean Jacques Rousseau. They took the help of the notion of social contract to explain the relationship between individual and society. The upholders of the social contract theory considered human rights as the natural rights for the reason that human rights were based upon the contract concluded by the people with the State. They explained that when men entered into contract to form political society, they renounced some of their natural rights which were previously enjoyed by them as their basic rights, such as, the right to life, freedom and equality were preserved by them. These were natural and inalienable rights of the individual. The State could not interfere with the exercise of these rights.
The teachings of social contract writers strengthened the concept of natural rights.
(3) Positivist theory. The propounders of positivist theory hold the view that the people were bound to obey law if it was created by an appropriate legislative authority or a sovereign. Bynker Shoek was one of the chief exponents of positivist school. According to him the source of human rights lies in the enactment of a system to which sanction has been attached to it. John Austin who is regarded as a great positivist of modern times has said “Law is the command of the sovereign”. Hence a person may be punished for disobedience of law by the sovereign authority. Prof. H.A.L. Hart, who is a modern positivist, has distinguished between invalidity of law and the morality of law. This is the basic difference between natural rights theory and the positivist theory. According to positivists, a law to be valid must be enacted by an appropriate legislature. Such a law remains valid irrespective of its moral authority.
(4) Marxist theory. The profounders of this theory do not conceive of the rights of individuals as distinct from the rights of society as a whole. According to them, only by achieving the upliftment of society and community, the higher freedoms of individuals can be accomplished. This theory explains that even the satisfaction of basic needs of individual are contingent on realisation of social goal. According to these propounders the notion of individual’s rights is an illusion because the rights of individuals are inter-dependent upon rights of the society. They regard concepts of law, morality, democracy, freedom etc., as historical as their contents are determined by the conditions of society or community as a whole.
(5) Theory based on Justice. John Rawl who is the chief exponent of this theory, has propounded “Justice is the first virtue of social institutions”. He says that the role of justice is crucial to the understanding of human rights. Human rights are an end of justice. The concept of justice behind the principles of justice is based on fairness. The concept of fairness and justice helps to determine all social goals, such as liberty and opportunity, wealth and self-respect etc., which are to be distributed equally among the persons composed of the society, with emphasis on lowest privileged people of the society.
(6) Theory based on dignity. According to this theory, the protection of human dignity is the paramount objective of social policy. The propounder of this theory point out that the demands for human rights are demands for protection of human dignity. They are of the view that there are inter-dependent values upon which human rights depends, namely: (i) respect, (ii) power, (iii) enlightenment, (iv) well-being, (v) health, (vi) skill, (vii) affection, (viii) rectitude. The ultimate goal of the exponents of this theory is based on human dignity where the paramount objective of social policy is the protection of human rights.
It may be noted that under Article 21 of the Constitution right to lead a dignified life has been ensured to all the citizens of the country. The Supreme Court has held this principle in number of cases.
To sum up, it can be concluded that all the theories discussed above, deal with the development of human rights. But the natural rights theory based on nature seems to be the most akin to the present concept and development of human rights. Actually natural law rights theory alongwith the theories based on justice and dignity present the trend for respect and protection of human rights.
Q. 2. Discuss the evolution, origin and development of Human Rights.
Or
What is the growth of concept of Human Rights ?
Or
Discuss the importance of American and French Revolution in the development of Human Rights.
Ans. Origin and Development of Human rights:
The notion of natural rights was developed by Greek philosophers for the first time. The Stoic philosophers developed natural law theory and by virtue of it they explained the nature of human rights. The citizen of Greek city States enjoyed certain basic rights even before the formulation of natural law theory by the Stoic philosophers. These were the right to freedom of speech, right to equality before law and right to equal respect for all.
Romans applied the Stoic conception of natural law in the formulation of body of rules for the administration of justice. They made ‘jus civile’ for their own citizens and ‘jus gentium’ for the non- citizens. Jus civile’ contained natural rights for the citizen of Rome.
As a record ‘The Magna carta’ was framed by the British Monarch as a Code of rights of his citizens. The ‘Magna carta’ was framed on 15th June, 1215 as a permanent document regarding the basic rights of British citizens. Later two more ‘Bills of Rights’ were framed each in 1628 and 1689 respectively.
American Revolution:
The American revolution strengthened the growth of natural rights in that country. The American Declaration of Independence on July 4, 1776, promised to fulfil the claim of American people for inalienable rights of individual. Americans incorporated the Bill of Rights in their Constitution in 1791 through amendment in the Constitution. Previously these rights were not meant for Negros but later on civil liberties were extended to them. The 15th Amendment laid down that the citizens’ rights to vote shall not be denied or abridged by the United States or any State on the ground of race, colour or previous condition of servitude. The 19th Amendment provided that these rights shall not be abridged or denied on the ground of sex.
The French Revolution:
The French Revolution was based upon those principles which were setforth by the American Revolution. It differed mainly in that it was basically the result of economic and social inequalities and the injustices of the French regime. The slogan of French Revolution was equality, liberty and fraternity. The writers of French Revolution claimed for the advent of a new era for mankind in general and the upsurge of natural and imprescriptible right to life, liberty and pursuit of happiness of individuals. The propagators claimed that the Government must preserve and safeguard these rights and if it fails to do so, it has no right to remain in power.
However, it were not the writers or philosophers who had influenced the course of events but it was the convening of French Estates Generals which produced the desired results. The National Assembly prepared the list of inalienable rights of free citizens of man and the other citizens. The proclamation of the declaration of the right of man and of other citizen was annexed to the Constitution, when it was adopted in 1791. It can be safely said that the declaration completed one of the most crucial epochs in the development of the concept of human rights. As such, it can be safely concluded that for all practical purposes, the declaration of French Revolution and American Constitutional Bill of Rights assumed positive importance for the development of human rights on the international arena.
Q. 2-A. Discuss stages of development of Human Rights.
Ans. The stages of development of Human Rights which have been described by Louis B. John, are as follows-
(a) Human Rights of First Generation. – The rights contained in international covenant on Civil and Political Rights 1966, are the human rights of first generation. These are traditional rights of individuals which developed in Greek city States after their consistent use for a long time. These rights have found place in the national constitution of all democratic countries besides, in international conventions including Europeon and African convention. Under Part III of Indian Constitution, these rights have been specifically described from Articles 14 to 32.
(b) Human Rights of Second Generation. – The rights contained in international convention on Economic, Social, and Cultural Rights, 1966 are called human rights of second generation. These rights were recognized and developed after accomplishment of Civil and Political Rights. These human rights were developed to make the Civil and Political Rights to be effective, otherwise there would have been no meaning and sense of the rights of first generation. Under Part IV of our Constitution, under the title “Directive Principles of State Policy”, the rights of second generation have been described and it has been directed to the State to take an endeavour to make laws for the enforcement of these rights.
(c) Human Rights of Third Generation. Certain rights which have been incorporated in the Charter of United Nations, may be called human rights of third generation. The right to self- determination, right to development and right to peace and security etc., which have found place in the U.N. Charter are human rights of third generation. The United Nations are working hard for realisation of these rights.
After the French revolution in 1789, human rights were stated to be incorporated in the constitutions of democratic countries. In 1791 United States incorporated 10 amendments in its Constitution in the form of human rights for its citizens. In these amendments, it was proclaimed that human rights were being provided to every citizen without any discrimination on the ground of caste, creed, religion, sex or language.
The Atlantic Charter
The British Prime Minister Winston Churchill and the American President Franklin Roosevelt met at the sea and issued a joint-declaration in August, 1941. It was known as Atlantic Charter. The declaration provided that the two leaders assisted that there are certain common principles in the national policies of their respective countries on which the hope of better future of the world is based. It was agreed that they respect the rights of all peoples to choose the form of Government under which they live, and they wish to see sovereign rights and self-government be restored to those who have been forcibly deprived of them. Since, this declaration was signed by two powerful States, it was bound to have profound effect on the de development of human rights movement. In an editorial comment, Mr. L.H. Woolsey asserted:
“The Atlantic Charter is a statement of principles which is a statement of human rights and freedoms, to which both nations are committed for post-war guidance and achievements.” This declaration was later on affirmed by Soviet Union also.
In the Philadelphia Declaration, the International Labour Organisation adopted the following resolution at its 26th Session as follows:
“All human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity of economic security and equal opportunity.”
Besides, a large number of organisations raised their voices for the international recognition and protection of human rights. In this way, there emerged an over whelming consensus of worl community for the establishment of international organisation with the task of formulating and implementing a Bill of Rights for the whole international community. Finally, at the San Fransisco Conference, from 25th April to 26th June, 1945, the U.N. Charter was adopted, in which numerous provisions for encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion was incorporated. The General Assembly has been assigned the duty of initiating studies and making recommendations for the purpose of assisting in the realisation of human rights and fundamental freedoms. The Economic and Social Council is authorised to make recommendations to the General Assembly and other specialised agencies for the purpose of promoting respect for and observance of human rights and fundamental freedoms for all.
Development of human rights on universal basis
Universal Declaration of Human Rights- The first important step in the direction of human rights on universal basis was adoption of ‘Universal Declaration of Human Rights’ by United Nations General Assembly on 10th December, 1948. This document reflects the boldness of United Nations to provide human rights to all people of the world to live in peace and tranquillity. Since then every year on 10th December, ‘Human Rights Day’ is observed in all the countries of the world.
Covenants on Human Rights– Thereafter, two important International Covenants viz. International Covenant on Civil and Political Rights and International Covenant on Economic and Cultural Rights were also adopted in 1966 by the United Nations General Assembly. These two Covenants were enforced on 3rd January 1976 and 23rd March, 1976 respectively. At the present, Human Rights Commission with 43 members along with a sub- committee consisting of 26 members has been established. An independent United Nations High Commissioner for Human Rights has also been appointed to look after the working of Human Rights Commission.
International Conventions on Human Rights
Following other important International Conventions of Human Rights have also been adopted by the General Assembly of the United Nations-
(1) International Convention on Prevention and Punishment of the Crime of Genocide, 1948;
(2) International Convention Relating to Humanitarian Laws of war.
(3) International Convention on Elimination of All Forms of Racial Discrimination, 1963.
(4) International Convention on the Rights of the Child, 1990.
(5) International Convention on the Protection of Rights of Migrant Workers and Members of Their Families, 1990.
(6) International Convention for the Suppression of the Financing of Terrorism, 1999.
(7) Convention on Elimination of All Forms of Discrimination Against Women, 1979.
(8) International Convention for the Suppression of Traffic in Person and Exploitation of Prostitution of Others, 1949.
(9) Convention on Status of Refugees, 1951.
(10) Convention on the Right of Persons of Disabilities, 2006.
Q. 3. Examine the nature and scope of Universal Declaration of Human Rights 1948.
OR
Explain the significance of Universal Declaration of Human Rights.
Ans. Universal Declaration of Human Rights was adopted by U.N. General Assembly on 10th December 1948. This Declaration has been hailed as the mine from which other conventions as well as national constitutions protecting these rights have been and are being quarried.
The Universal Declaration consists of preamble and 30 Articles covering both Civil and Political Rights as well as economic, social, and cultural rights. The preamble refers to the faith in fundamental human rights in the dignity and worth of the human persons and equal rights of men and women, which the peoples of the world have reaffirmed in the Charter of the United Nations.
Main provisions of Universal Declaration of Human Rights
The Universal Declaration consists of both Civil and Political Rights and economic, social and cultural rights. Preamble of the Declaration deals with “the faith of the peoples in fundamental human rights, in dignity and worth of the human person and equal rights of men and women.” The Universal Declaration declares a common standard of achievements for peoples of all nations, that every individual and every organ of the society, shall strive by teaching, educating and promoting respect for these rights and freedoms by progressive measures, national and international, to secure their universal recognition and observance, both among the peoples of members States themselves as well as among the territories under their jurisdiction.
Following human rights have found place in the Universal Declaration-
(A) Civil and Political Rights.- Civil and Political Rights which have been recognized by the Universal Declaration are as follows-
(1) Right to life, liberty and security of person.
(2) Prohibition of slavery and slavery trade.
(3) Prohibition of torture, cruel, inhuman or degrading treatment or punishment.
(4) Right to be recognized as a person before law.
(5) Equality before law and equal protection of law.
(6) Right to effective remedy by the competent national tribunals.
(7) Prohibition of arbitrary arrest, detention or exile.
(8) Right to full and fair public hearing by an independent and impartial tribunal.
(9) Right to be presumed innocent until proved guilty.
(10) Freedom from ex-post facto laws.
(11) Right to privacy, family, home, correspondence or attack on honour of reputation and right to protection of law against such interference.
(12) Right to freedom of movement and residence.
(13) Right to leave any country, including his own and to return to his country.
(14) Right to seek asylum in other countries.
(15) Right to nationality.
(16) Freedom from arbitrary deprival of nationality.
(17) Right to marry and to found a family as equal rights as to marriage.
(18) Right to own property.
(19) Right to freedom of thought, conscience and religion.
(20) Right to freedom of opinion and expression.
(21) Right to freedom of peaceful assembly and association.
(22) Right to take part in the government of his country.
(23) Right to equal access to public service in his country.
(B) Economic, Social and Cultural Rights. The Universal Declaration proclaims following economic, social, and cultural rights-
(1) Right to social security, and right to realisation of the economic, social and cultural rights indispensable for his integrity.
(2) Right to work, free choice of employment, just and favourable conditions of work and protection against unemployment.
(3) Right to equal pay for equal work.
(4) Right to just and favourable remuneration.
(5) Right to form and to join trade unions.
(6) Right to rest and leisure.
(7) Right of living adequate for the health and well being of himself and his family.
(8) Right of all children to enjoy same social protection.
(9) Right to education.
(10) Right of parents to choose the kind of education for their children.
(11) Right to participate in cultural life of the community.
(12) Right to protection of moral and material interests resulting from any scientific, literary or artistic production, of which he is the author.
After the adoption of Universal Declaration, these human rights have become universalized and in this context, European Convention on Human Rights, 1950 is the glaring example for adoption by European countries. European community has not only adopted this convention but has also established European Court of Human Rights for enforcement of these human rights of their convention.
Now it is well settled that human rights which have been proclaimed in Universal Declaration, have become legal rights of the peoples of the United Nations. These rights have been recognized in the Constitutions of all democratic States. These human rights are enforceable in the courts of every democratic State of the world.
Q. 4. Discuss the role of the United Nations in the development and promotion of Human Rights.
Or
How does United Nations promote human rights? Discuss.
Ans. With the exception to the pursuit of peace, there is no cause why the United Nations is more closely identified with the cause of human rights. Human Rights occupy a significant place in the Charter of United Nations which are discussed as under:
(1) U.N. Charter-Principle for achievement of Human Rights.- Under the preamble the Charter deals with the principle of United Nations to achieve Human Rights:
It provides that “We the peoples of the United Nations ———- declare our faith in fundamental human rights in the dignity and worth of human person, in the equal rights of men and women.” The framers of the Charter did not stop only upto the preamble rather they went to provide content to these words in numerous provisions concerning human rights, elimination of colonization, non-self governing territories, economic and social co-operation etc., among the members of United Nations.
(2) Article 1(3) of the Charter-Purposes of the United Nations relating to Human Rights. – According to this Article one of the purposes of United Nations is “to achieve international co- operation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” Thus, Article 1 (3) promotes respect for human rights.
(3) Responsibility of General Assembly. –Third important aspect of the Charter is the responsibility of General Assembly to initiate studies and make recommendations for the purpose of “promoting international co-operation in the economic, social cultural, educational and health fields and assisting in the realisation of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
(4) United Nations charged to promote universal respect for Human Rights and Fundamental Freedoms.- Fourth important aspect of the Charter in respect of human rights has been described under Article 55 of the Charter which charges the United Nations to promote universal respect for, an observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. This provision has been strengthened by Article 56 which provides “All members pledge themselves to take joint and separate action in co-operation with the organisation for the achievement of the purposes described in Article 55.
(5) Economic and Social Council to make recommendations.- Fifthly the Charter has empowered the Economic and Social Council to make recommendations for the purpose of promoting respect for, and obligation of human rights and fundamental freedoms for all. [Article 62 (3)].
(6) Economic and Social Council to set up Commissions.- Sixthly, the Charter imposes upon the Economic and Social Council to set up Commission in economic and social fields for the promotion of human rights, and such other Commissions as may be required for the performance of its function. [Article 68].
(7) Objectives of Trusteeship. – Seventhly, one of the basic objectives of the Trusteeship Council as provided in the Charter shall be “to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion and to encourage recognition of inter-dependence of the peoples of the world.” [Article 76 (c)).
In this way, it is clear that United Nations has made very specific provisions for the protection and promotion of human rights. The abovementioned provisions of the Charter provide impetus to the promotion and protection of human rights to the people of all Nations.
Q. 5. Write an essay on the European Convention on Human Rights.
Ans. The European Convention on Human Rights, 1950 was signed in November, 1950 in Rome. This convention became effective since September, 1953. There are 22 countries of Europe which are signatory parties to this convention. Only a member of European Council can become party to this convention.
According to Article 1 of the convention, the State parties to the convention undertake to secure to every one within their jurisdiction the rights and freedoms defined in Section 1 of the convention. Section 1 enlists and defines the following rights and freedoms of the people of signatory parties to the convention:
(1) Right to life [Article 2].
(2) Freedom from torture or inhuman or degrading treatment or punishment. [Article 3]
(3) Freedom from slavery or servitude. [Article 4, Para 1].
(4) Freedom from forced or compulsory labour. [Article 4, Para 2].
(5) Right to liberty and security of person. [Article 5, Para 1].
Under this right following rights are included-
(a) Right to an arrested person to be informed of the reasons of his arrest and of any charge against him. [Article 5, Para 2)
(b) Right to be brought before a Judge and to be entitled to trial within reasonable time [Article 5, Para 3].
(c) Right to victim of arrest or detention in contravention of the provisions of this Article to an enforceable right to compensation. [Article 5, Para 5].
(6) Right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. [Article 6, Para 1].
This right includes the following rights:
(a) Right to presumption of innocence of a person charged with a criminal offence until proved guilty according to law. [Article 6, Para 2].
(b) Certain specified rights to every person charged with an offence according to criminal law. [Article 6, Para 31.
(7) Non-retroactive application of criminal law under national or international law. [Article 7].
(8) Right to respect for private and family life, home and correspondence. [Article 8, Para 1].
(9) Right to freedom of thought, conscience and religion including freedom to change religion. [Article 9].
(10) Right to freedom of expression including freedom to hold opinions and to receive and impart information and ideas. [Article 10, Para 1]
(11) Right to freedom of peaceful assembly and to freedom of association with others. [Article 11, Para 1].
(12) Right of men and women of marriageable age to marry and to found a family. [Article 12].
(13) Right to have an effective remedy before a national authority against violation of rights and freedoms set forth in the convention Article 13]
(14) Right of every natural or legal person to the peaceful enjoyment of his possessions Article 1, Protocol 1].
(15) Right to education. [Article 2, Protocol 1].
(16) Right to have free elections at reasonable intervals by secret ballot to ensure the free expression of the opinion of the people in the choice of the legislature. (Article 3, Protocol 1].
(17) Right not to be expelled from a State of which a person is a national. [Article 3, Protocol 4].
(18) Freedom from collective expulsion from a State. [Article 4, Protocol 4]
(19) Abolition of death penalty [Article 7, Protocol 6].
(20) Right of review of a conviction by a higher court. [Article 2. Protocol 7]
Implementation of Rights and Freedoms Recognized by European Convention on Human Rights
The rights and freedom recognised by European Convention are implemented by the following institutions, namely:
(1) European convention on Human Rights; and
(2) European Court of Human Rights:
Following important cases relating to violation of human rights, were decided by the European Court of human rights-
(1) Lawless v. Ireland, (1961) ECHR, Series A, Vol. 3.
(2) Broghan v. United Kingdom, (1988) (11) ECHR 117.
(3) Handyside v. United Kingdom, (1968) ECHR, Series, A.Vol.24.
(4) Lingens v. Austria, (1986) 8 ECHR 407.
(5) Golder v. United Kingdom, (1975) ECHR Series A, Vol. 18.
(6) Ireland v. United Kingdom, (1978) ECHR Series A, Vol. 25.
(7) Soeing v. United Kingdom, (1989) 11 ECHR 439.
(8) Wemhoff v. Federal Republic of Germany, (1968) ECHR Series A, Vol. 8.
Judicial pronouncements in the above cases were praise worthy and hailed by the people who were victims of violation of human rights.
Q. 6. Discuss the importance and role of the U. N. High Commissioner for Human Rights.
Ans. On 20th December, 1993, the U. N. General Assembly created the post and position of a U.N. High Commissioner for Human Rights by passing a resolution. High Commissioner is to be appointed by the Secretary-General of the U.N. for a period of four years subject to the approval of the General Assembly. The High Commissioner will report annually to the Commission on Human Rights and through the Economic and Social Council to the General Assembly with a branch office at New York. The High Commissioner’s principal location will be at Geneva. While creating the post of High Commissioner for Human Rights, the resolution of General Assembly specified that for “impartial, objective, non-selective performance of the duties, the person to be appointed to this august office, must be “a person of high moral standing and personal integrity and must possess expertise in the human rights field and an understanding of diverse culture under the direction and authority of the Secretary-General. The High Commissioner will “promote and protect the effective enjoyment by all of all cultural, economic, political and social rights,” and will play an active role in removing the current obstacles and in meeting the challenges to the full realisation of all human rights and will prevent violations throughout the world.”
Mr. Jose Ayala Lasso was appointed the First High Commissioner for Human Rights, who assumed his office on 5th April, 1994. The High Commissioner for Human Rights has been entrusted with the following responsibilities:
(1) strengthening and streamlining existing human rights mechanism;
(2) engaging in dialogue with all governments to secure respect for all human rights;
(3) co-ordinating human rights, promotion and protection of activities throughout the U.N. systems including U.N. education and public information programmes,
(4) supervising the centre for Human Rights;
(5) to promote and protect the effective enjoyment by all of civil, cultural, economic political and social rights;
(6) to play an active role in removing the current obstacles and in meeting the challenges to the full realisation of all human rights;
(7) to provide advisory services, technical and financial assistance in respect of the human rights to the States at their request, and
(8) to take steps for the enhancement of international co- operation for the promotion and protection of human rights.
In view of the above, it is evident that the function of U.N. High Commissioner for Human Rights is to co-ordinate the human rights activities of the States with those of the United Nations. It is significant to note that the situation and position of the U.N. High Commissioner for Human Rights is very important so far as protection and promotion of human rights are concerned. His functions are decided by the U.N. General Assembly for strengthening the human rights activities of the member States in their respective areas. It is imperative that the High Commissioner for Human Rights should win the confidence of the Governments of the Member-States to protect and promote human rights in the world at large.
Q. 7. Discuss the various measures for the implementation of Human Rights.
Ans. Following measures have been undertaken for the implementation of Human Rights on international level:
(1) Implementation under U.N. Centre for Human Rights.- U.N. Centre for Human Rights has been established at Geneva for co-ordinating human rights activities on international level. It performs the function of preparing studies and reports and gets them published. It provides advisory services and renders technical assistance to governments. It also provides staff for the Commission, the Sub-Commission, the Human Rights Committee, the Committee on the Elimination of Racial Discrimination. It oversees implementation of programme of action concerning human rights adopted by General Assembly. The Centre provides substantive services and documentation on human rights to the concerned U.N. Organs rgans including the General Assembly and Economic and Social Council.
(2) Implementation under the International Covenant on Economic and Social Council.-Implementation of Economic Covenant consists of a system of reporting. State parties to the Economic Covenant have undertaken the obligation to submit reports on measures adopted by them and the progress made in achieving the general observance of the rights recognised therein. All reports are submitted to the Secretary-General of the U.N. who shall transmit copies to ECOSOC for consideration in accordance with the provisions of the Covenant. The Secretary-General will also transmit the copies of the reports to the Specialised Agencies or relevant part thereof from State parties to the Covenant, who are also members of these specialised Agencies. The State parties to the Covenant are required to furnish these reports in stages in accordance with a programme to be established by ECOSOC within an year. The Specialised Agencies may transmit report to the Commission on Human Rights for study and general recom- mendation.
In this way, the system of reporting is the only measure of implementation and also the only machinery provided by the Economic Covenant. State Parties agree that international action for the achievement of rights recognised in the Covenant includes such methods as conclusion of conventions, the adoption of recommendation the furnishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organised in conjunction with the governments concerned.
(3) Implementation under International Covenant on Civil and Political Rights, 1966.- This Covenant after its adoption by State parties, has elected 18 members for the Human Rights Committee. The Human Rights-Committee implements its report in the following three ways:
(a) by reporting,
(b) by inter-State communications system (including conciliation procedure); and
(c) by other methods of implementation.
(4) Implementation under first optional protocol to the International Covenant on Civil and Political Rights, 1966.- In addition to the aforesaid three methods for the implementation of the rights recognised under the covenants, there is another system which is available under Protocol to Covenant on Civil and Political Rights which is known as ‘individual communication system. This system is also available to the State parties to the Civil and Political Rights Covenant, 1966.
For the implementation of the report under individual communication system, following conditions must be satisfied:
(a) The competence of the committee to receive and consider communication is limited to the individuals whose State parties have adopted the optional protocol as well as covenant on Civil and Political Rights, 1966.
(b) The communication of the said individual must concern the rights enumerated in the Covenant.
(c) Before submitting a written communication to the Committee the individual must have exhausted all available domestic remedies.
(d) A communication submitted under the optional protocol must not be anonymous nor must be an abuse of the rights of submission or be incompatible with the provisions of the Civil Covenant.
(e) The Committee shall not consider any communication from any individual unless it has been ascertained that the same matter is not being examined under another procedure of international investigation for settlement.
The Human Rights Committee shall transit the report to that State party who is alleged to have violated the provisions of the covenant. Thereafter, within 6 months the receiving party shall submit to the Committee its written explanation or Statements clarifying the matter and the remedy, if any, that may have been taken by that State. The Committee shall consider the communication received under the optional protocol in the light of the written informations made available to it by the individual and the State party concerned, and shall hold closed door meetings when examining communications under the optional protocol.
Q. 8. Discuss various Civil and Political Rights embodied in the International Covenant on Civil and Political Rights, 1966.
Or
Write an essay upon the Civil and Political Rights recognised under International Law.
Or
Discuss various procedures as adopted for implementation of Human Rights under International Covenant on Civil and Political Rights and the Optional Protocol thereto.
Ans. International Covenant on Civil and Political Rights, 1966 was adopted by U.N. General Assembly on 19th December, 1966 and was enforced on 3rd January, 1976. At present 162 Member-States are parties to this Covenant. Its Optional Protocol has been adopted by 12 Member-States and this protocol was enforced on 23rd March, 1976.
This covenant consists of 53 Articles which has been divided into 6 parts. These Articles may be classified into following categories:
(a) Preambles
(b) General Provisions (Articles 1 to 3);
(c) Rights in emergency (Article 4);
(d) Substantive Rights (Articles 6 to 27);
(e) Implementation or Enforcement machinery (Articles 28 to 45);
(f) Interpretation or saving provisions (Articles 46 to 47);
(g) Final or concluding provisions, regarding ratification or accession of the covenant, amendments etc.
Following rights have been recognised under the International Covenant on Civil and Political Rights, 1966-
(1) Right to life (Article 6);
(2) Prohibition of torture or cruel, inhuman or degrading treatment or punishment and prohibition of medical or scientific experimentation without free consent (Article 7);
(3) Prohibition of slavery, slave trade, servitude, forced or compulsory labour (Article 8);
(4) Right to liberty and security of person and freedom from arbitrary arrest or detention (Article 9),
(5) Right to all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (Article 10);
(6) Prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation (Article 11),
(7) Right to liberty of movement and freedom to choose residence and right not to be arbitrarily deprived of entering his own country (Article 12);
(8) Freedom of aliens lawfully in the territory of a State party to the covenant from arbitrary expulsion (Article 13);
(9) Right to equality before courts and tribunals, right to a fair and public hearing and right of everyone charged with a criminal offence to be presumed innocent till proved guilty according to law (Article 14);
(10) Non-retroactive application of criminal law (Article 15);
(11) Right to be recognised everywhere as a person before law (Article 16);
(12) Right of everyone not to be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence and freedom from unlawful attacks on his honour and reputation (Article 17);
(13) Freedom of thought, conscience and religion (Article 18);
(14) Right to freedom of opinion and expression (Article 19);
(15) Prohibition of propaganda of war and advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence (Article 20);
(16) Right of peaceful assembly (Article 21);
(17) Right to freedom of association including the right to form and join trade unions for the protection of interest (Article 22);
(18) Right to marry and to found a family (Article 23);
(19) Right of every child to be protected according to his status as minor on the part of the family, society and the State; and the right of every child to acquire a nationality (Article 24);
(20) Right of every citizen to take part in the conduct of public affairs to vote and to be selected, and to have access, on general terms of equality, to public service to his country (Article 25);
(21) Equality before law; (Article 26);
(22) Right of ethinic, religious and linguistic minority to enjoy their own culture, to profess and practice their own religion or to use their own language (Article 27).
Rights enumerated under International Covenant on Civil and Political Rights are not absolute rather they are subject to certain restrictions.
Enforcement Machinery of Rights under International Covenant on Civil and Political Rights-(Articles 28 to 45).- The implementation or enforcement machinery is provided under Part IV of the Covenant. The Covenant provides for the establishment of an Eighteen Member Human Rights Committee. The Committee performs the functions of implementation on the human rights in following ways-
(i) Reporting procedure.
(ii) The Inter-State communication system (including conciliation commission).
(iii) Individual’s communication system.
The third implementation method i.e. ‘individual’s communication system’ does not find mention in the Covenant on Civil and Political Rights. It finds mention in Section 2 of Optional Protocol to the International Covenant on Civil and Political Rights. This method is available to those individuals whose State is a party to this Covenant as well as to the Optional Protocol to the Covenant on the Civil and Political Rights. Besides, any individual whose human right has been violated wants to utilise this method has to satisfy that he has exhausted all available domestic remedies and has to submit a written communication to the Committee for consideration of his case for relief.
Optional Protocol to the International Covenant on Civil and Political Rights.- This protocol enables an aggrieved person to find a relief from the Human Rights Committee for redressal of violation of human rights. In the preamble of this protocol, it has been provided that the aggrieved person whose State is a party to this covenant, has a right to move for redressal of his grievance against his State from whom he had to suffer violation of his Civil and Political Rights. Every State who has adopted this covenant as well as the Optional Protocol is duty bound to provide relief to the aggrieved person of his State The Human Rights Committee considers the case of the aggrieved person and after due consideration, if it finds that the concerned fitate is actually Hable for violation of human right of that person it is asked to mend itself and provide relief to the aggrieved person
The Human Rights Committee sends annual report of the cases dealt by it and also about the reliefs provided to the aggrieved persons in individual cases.
Second protocol to the International Covenant on Civil and Political Rights. This protocol has been framed by the U.N. General Assembly mainly for the abolition of death penalty by member-States. This protocol is associated to the Covenant on Civil and Political Rights in the same way as the optional protocol of this covenant. This protocol was enforced on 11th July 1991 and at present its membership is 54 States
Q. 9. Write an essay on the role of Human Rights Committee in the promotion and protection of Human Rights.
Or
Describe the powers and functions of Human Rights Committee.
Ans. Human Rights Committee- This Committee has been established under the Civil Covenant consisting of eighteen members. These members are nationals of State parties to the covenant “having high moral character and recognised competence in the field of human rights” preferably having legal experience The members of the Committee are elected and serve in their personal capacity. The members of the Committee are elected by secret ballot from list of persons possessing the above qualifications as prescribed under Article 28, and nominated for the purpose by the State parties to the covenant. Each State party to the covenant may nominate not more than two persons who are its nationals and such persons shall be eligible for re-nomination. The Committee may not include more than one national of the same State. In election of members of Committee, consideration shall be given to the equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principle of legal systems.
The members of the Committee are elected for a term of four years and shall be eligible for re-election in case they are re-nominated. But the term of nine members at the first election shall expire at the end of two years, the names of such nine members shall be chosen by lot by the Chairman of the meeting referred in Article 30.
Methods of Implementation.- The 18 member Human Rights Committee implements the human rights recognised under the Civil Covenant in following three ways
(a) The system of Reporting,
(b) Inter-State Communications system (including conciliation procedure),
(c) Other methods of implementation.
(a) The System of Reporting or Reporting Procedure.- Article 40 of the Civil Covenant, which deals with the Reporting procedure, provides that State parties to the Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognised in the Covenant and on the progress made in the enjoyment of these rights. State parties are required to submit the said reports within one year of the entry into force of the covenant and thereafter whenever the Committee so requests Secretary-General studies the report and may after consultation with the Committee, transmit to the specialised agency concerned copies of such reports as may fall within the field of competence The Committee may also transmit to the Economic and Social Council these comments alongwith the copies of the reports to the State parties.
The reports submitted by the State parties to the Committee are required to indicate the factors and difficulties, if any. affecting the implementation of the Covenant so as to enable the Committee to keep in touch with the State party regarding the implementation of the rights recognised in the Covenant.
(b) Inter-State communication system. – Besides the aforesaid reporting system, the Civil Covenant also provides for the system of inter-State communication. This system is based on the concern of all State parties to the Covenant that the right recognised by the Covenant are implemented. If one State party finds that some other State party is not implementing the provisions of the Covenant, it may send a communication to the Human Rights Committee in this connection. But this system is optional and operates only if a State declares that it recognises the competence of the Human Rights Committee to receive and consider communication that a State party claims that another State is not fulfilling its obligations under the Covenant.
The trend of States in respect of Reporting system. The trend of States in sending the report to Human Rights. Committee is not very encouraging. In 2002 it was found that 93 State parties had made undue delay in sending the report to the Committee. Thirty five States were such where delay for sending report was committed for more than 5 years while there were such States which had sent reports after over 10 years of violations of human rights.
(c) Conciliation Procedure.- Inter-States communication system is observed in those specified cases where the concerned parties do not get settlement. In such cases, Conciliation Commission is established for full settlement of the matter. The Commission consists of five members who are acceptable to all concerned State parties.
(d) Individuals’ communication with Human Rights Committee.- In case of violation of Human Rights, the individuals have a right to file petition even against their own State in case of violation of their human rights. Although this right has not been mentioned in the Covenant yet this provisions finds place in the Optional Protocol of the Civil and Political Rights Covenant. Those States who have adopted the Covenant and the optional protocol are bound for implementation of this provision.
Q. 10. Explain the relationship between Human Rights and the Indian Constitution.
Or
Explain the impact of Universal Declaration of Human Rights and the two International Covenants on Human Rights on the framing of Indian Constitution.
Ans. There appears a lot of impact on the framing of Indian Constitution. The formation of Fundamental Rights and Directive Principles have been immensely influenced by the Human Rights declared by Universal Declaration of Human Rights, 1948 and two international covenants on Human Rights. In a number of cases, Supreme Court has held that Indian Constitution has been deeply influenced by the Universal Declaration of Human Rights and the courts can take recourse to human rights to decide cases to Universal Declaration and the two international Covenants of human rights. Under the Indian Constitution, following three kinds of Human Rights have been incorporated:
(a) Specifically enumerated rights;
(b) Other Rights not specifically enumerated;
(c) Unenumerated rights which have not been recognised.
(a) Specifically Enumerated Rights.- These rights are those which have been mentioned in Universal Declaration of Human Rights as well as both international Covenants i.e., Covenant on Civil and Political Rights and Covenant on Economic, Social and Cultural Rights.
There are, however many other directive principles such as, equal justice and free legal aid, organisation of village Panchayats uniform civil Code and promotion of educational and economic interest of Scheduled Castes and Scheduled Tribes and other weaker sections, protection and improvement of environment and safeguarding of wildlife which are found in Indian Constitution but these rights are conspicuous of their absence in the International Covenant on Economic Social and Cultural Rights.
(b) Not specifically Enumerated Rights. – Following rights have been recognised by the Supreme Court under many articles of the Constitution, but they have not been specifically enumerated under our Constitution: These rights are as follows-
(i) Right to go abroad,
(ii) Right to privacy:
(iii) Right against solitary confinement;
(iv) Right against bar-fetters;
(v) Right to legal aid;
(vi) Right to speedy trial;
(vii) Right against handcuffing,
(viii) Right against delayed execution;
(ix) Right against custodial violence;
(x) Right against public hanging:
(xi) Right to doctor’s assistance;
(xii) Right to shelter.
(c) Unenumerated and unrecognised Human Rights.- There are various rights which have been recognised under International Covenant on Civil and Political Rights but they have not been recognised under Part III of the Constitution These are as follows-
(i) Right of self not to be used for medical and scientific experiment (Article 7 of the Covenant)
(ii) Right of non-execution of death punishment to persons below 18 years or right of freedom of a pregnant woman from death punishment (Article 6 (5) of the covenant)
(iii) Special protection to minors and youths [Article 10 (2) and Article 14 (4)].
(iv) Right to marry and found a family [Article 23 (2)].
(v) Right of self-determination [Article 1 (1) of the covenant].
(vi) Restriction from making rumour of war [Article 20 (1) of the covenant).
Supreme Court has held in large number of cases such as, Jolly George Verghese v. Bank of Cochin; AIR 1980 SC 470; Vishakha v. State of Rajasthan, AIR 1997 SC 3011; Apparel Export Promotion Council v. A.K. Chopra and others, AIR 1999 SC 625, that the provisions of the International Covenant on Civil and Political Rights as well as International Covenant on Economic, Social and Cultural Rights besides Universal Declaration of Human Rights can be used while interpreting the fundamental rights of the citizens, as these rights have been directly and indirectly mentioned in our Constitution.
Q. 11. Distinguish between Fundamental Rights and Human Rights.
Ans. No definition of fundamental rights has been provided in our Constitution. In England those rights which have been declared in the Magna carta as Bill of Rights, are fundamental rights of the realm. In United States as well as France, natural rights which are inalienable are fundamental rights of those countries. In Golak Nath v. State of Punjab, AIR 1967 SC 1643, the Supreme Court has held that fundamental rights are natural and inalienable rights, and that they cannot be taken away by any Act of legislature.
Under Part III of our Constitution, there is vast description of fundamental rights which have been provided against the State.
Similarly, no definition of human rights has been provided in the Universal Declaration of Human Rights. But it can be said that human rights are those rights which are essential for the dignity of an individual. Generally no clear cut definition of human rights can be provided but it can be said that these are such rights which are inherent in the nature of a person and are essential for the maintenance of his dignity. These Rights are essential for the development of his personality and are also necessary for fulfilment of his needs. Human Rights are sometimes called natural rights. This is why they cannot be taken away by any Act of the legislature or the Parliament.
All Human Rights are not fundamental rights but as fundamental rights can be called human rights which have been described in the Universal Declaration of Human Rights.
Human Rights are also subject to certain restrictions like those of fundamental rights. Although necessary steps can be taken for violation of human rights under the International law yet Acts of legislature framed in violation of human rights, can be challenged in the High Courts and Supreme Court to get them struck down.
Human Rights are far more extensive than the fundamental rights. The fundamental rights have been described in Part III of the Constitution, and Article 32 can be used to invoke the Supreme Court for enforcement of fundamental rights. Under the category of human rights, more rights than declared in the category of fundamental rights, have been included. So the area of human rights is far more extensive. Under Article 21 of the Constitution, Supreme Court has expounded many human rights to be part and parcel of the fundamental rights. As such, the area and ambit of human rights is very extensive and day-by-day they are increasing in view of the demands of the humanity.
Before the Constitution of India was adopted by the Constituent Assembly, the United Nations had adopted Universal Declaration of Human Rights. The list of Fundamental Rights in the Constitution of India is not as broad as Human Rights at international level but all Fundamental Rights fall in the list of Human Rights. Fundamental Rights are justiciable rights but Directive Principles of State Policy enumerated in the Constitution of India are not justiciable rights although they are also as necessary rights of human beings as Fundamental Rights. It is by judicial interpretation that ambit of Fundamental Rights is expanding day by day and some of the Directive Principles have been raised to the level of Fundamental Rights. Besides, Directive Principles along with Fundamental Rights have been interpreted to be of equal importance.