Human Rights, Development, Challenges and Democracy
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The protection of Human rights act, 1993 of India, in section 2(d) defines Human rights as the “the right relating to life, liberty, equality and dignity of the individual, guaranteed by the Constitution or embodied in the international covenants, enforceable by courts in India”. The paper deals with the conce[pt and history of human rights that how human rights were officially recognized after II world war by United Nations with the primary goal of bolstering international peace and preventing conflict established a Commission on Human Rights and charged it with the task of drafting a document spelling out the meaning of the fundamental rights and freedoms proclaimed in the Charter. The Government of India did realize the need to establish an independent body for promotion and protection of human rights. The establishment of an autonomous National Human Rights Commission (Commission) by the Government of India reflects its commitment for effective implementation of human rights provisions under national and international instruments. The paper contains the major issues of violation of human rights prevalent in India and how the menace of these violations can be curbed through certain responses and strategies.
Every human being has certain interests which he seeks to exercise in the form of entitlements. These claims, liberties, powers and immunities are described under the homonym ‘rights’. These rights do not owe their existence to any law. They are gifts nature. Thomas Jefferson declared that all men are created equally and they are endowed with certain inalienable rights to life, liberty and pursuit of happiness. These rights of men and women compendiously came to be accepted as ‘Human Rights’. These are ‘irreducible minima’ which belong to every member of human race when pitted against the state or other public authorities or group, gangs and other oppressive communities. They are inviolable and cannot be legitimately denied or abrogated by any power of the state. Human rights are those minimum rights against public authority or state or person, which are available to every person by virtue of being a member of human family. They have their origin from natural law which is superior to manmade law.
The protection of Human rights act, 1993 of India, in section 2(d) defines Human rights as the “the right relating to life, liberty, equality and dignity of the individual, guaranteed by the Constitution or embodied in the international covenants, enforceable by courts in India” One of the very first documents, which recognized certain human rights which were to be protected by the sovereign was the ‘Magna Carta’, which was signed by King John of England on 15th June, 1215. The Magna Carta was subsequently reaffirmed by king Edward III in 1354, whereby a further undertaking was given on behalf of the sovereign that no person would be prejudiced by any state action or be harmed, except in due process of law, which has since become one of the major principles relating to the rule of law and the enforcement of Human Rights all over the world and has found nourishment in judicial pronouncements. The expression is also included in Article 21 of the constitution which guarantees the right to life. In the early part of the 20th century the world witnessed two world wars which struck at the very foundation of the concept of protection of human rights and caused the world community to think of a collective mechanism by which such disasters could be prevented in future.
The said deliberations led to the formation of the United Nations in 1945 and the publication of the United Nations charter and in turn drafted the momentous Universal Declaration of Human Rights (UDHR). The protection of Human rights act, 1993, was enacted by the legislature in response to the Universal Declaration of Human Rights, the covenant on civil and political rights and the covenant on economic and social and cultural rights adopted by the U.N general assembly in December, 1965. India being a party to the said covenants promulgated the said act with the object of constituting a National Human Rights Commission, State Human Rights Commission in states and Human Rights Courts for better protection of human rights and for the matters connected therewith or incidental thereto. Section 2(1)(d) of the said act defines “Human Rights” to mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the international covenants and enforceable by courts in India.
Article 21 of the constitution, has often been described as a rather plain statement of the most important of human rights, namely, the fundamental rights to protection of life and personal liberty, except according to procedure established by law. It was left to judicial interpretation and/or innovation to breathe life into those simple words in various judicial pronouncements which have given a new Dimension to Article 21 and transformed it into a vibrant and dynamic source of inspiration to give meaning to the concept of a life of dignity and meaningful existence as a human being. There are certain main issues of violation of human rights in India like Domestic violence, rape, child marriage, child abuse, child labour etc which needs to be curbed. These menaces could be curbed by adopting certain strategies like forming special courts, participation of NGO’s and adopting extraordinary laws and most importantly Judicial Activism.
The Universal Declaration of Human Rights
The idea of human rights emerged stronger after World War II. The extermination by Nazi Germany of over six million Jews, Sinti and Romani (gypsies), homosexuals, and persons with disabilities horrified the world. Trials were held in Nuremberg and Tokyo after World War II, and officials from the defeated countries were punished for committing war crimes, “crimes against peace,” and “crimes against humanity.” Governments then committed themselves to establishing the United Nations, with the primary goal of bolstering international peace and preventing conflict. People wanted to ensure that never again would anyone be unjustly denied life, freedom, food, shelter, and nationality. The essence of these emerging human rights principles was captured in President Franklin Delano Roosevelt’s 1941 State of the Union Address when he spoke of a world founded on four essential freedoms: freedom of speech and religion and freedom from want and fear (See Using Human Rights Here & Now).
The calls came from across the globe for human rights standards to protect citizens from abuses by their governments, standards against which nations could be held accountable for the treatment of those living within their borders. These voices played a critical role in the San Francisco meeting that drafted the United Nations Charter in 1945. Member states of the United Nations pledged to promote respect for the human rights of all. To advance this goal, the UN established a Commission on Human Rights and charged it with the task of drafting a document spelling out the meaning of the fundamental rights and freedoms proclaimed in the Charter. The Commission, guided by Eleanor Roosevelt’s forceful leadership, captured the world’s attention. On December 10, 1948, the Universal Declaration of Human Rights (UDHR) was adopted by the 56 members of the United Nations.
The vote was unanimous, although eight nations chose to abstain. The UDHR, commonly referred to as the international Magna Carta, extended the revolution in international law ushered in by the United Nations Charter – namely, that how a government treats its own citizens is now a matter of legitimate international concern, and not simply a domestic issue. It claims that all rights are interdependent and indivisible. Its Preamble eloquently asserts that: Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world. The influence of the UDHR has been substantial. Its principles have been incorporated into the constitutions of most of the more than 185 nations now in the UN. Although a declaration is not a legally binding document, the Universal Declaration has achieved the status of customary international law because people regard it “as a common standard of achievement for all people and all nations.” The Human Rights Covenants
With the goal of establishing mechanisms for enforcing the UDHR, the UN Commission on Human Rights proceeded to draft two treaties: the International Covenant on Civil and Political Rights (ICCPR) and its optional Protocol and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Together with the Universal Declaration, they are commonly referred to as the International Bill of Human Rights. The ICCPR focuses on such issues as the right to life, freedom of speech, religion, and voting. The ICESCR focuses on such issues as food, education, health, and shelter. Both covenants trumpet the extension of rights to all persons and prohibit discrimination. As of 1997, over 130 nations have ratified these covenants. The United States, however, has ratified only the ICCPR, and even that with many reservations, or formal exceptions, to its full compliance. (See From Concept to Convention: How Human Rights Law Evolves). Subsequent Human Rights Documents
In addition to the covenants in the International Bill of Human Rights, the United Nations has adopted more than 20 principal treaties further elaborating human rights. These include conventions to prevent and prohibit specific abuses like torture and genocide and to protect especially vulnerable populations, such as refugees (Convention Relating to the Status of Refugees, 1951), women (Convention on the Elimination of All Forms of Discrimination against Women, 1979), and children (Convention on the Rights of the Child, 1989). As of 1997 the United States has ratified only these conventions: The Convention on the Elimination of All Forms of Racial Discrimination The Convention on the Prevention and Punishment of the Crime of Genocide The Convention on the Political Rights of Women
The Slavery Convention of 1926
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Government officials who understand the human rights framework can also effect far reaching change for freedom. Many United States Presidents such as Abraham Lincoln, Franklin Roosevelt, Lyndon B. Johnson, and Jimmy Carter have taken strong stands for human rights. In other countries leaders like Nelson Mandela and Vaclev Havel have brought about great changes under the banner of human rights. Human rights are an idea whose time has come. The Universal Declaration of Human Rights is a call to freedom and justice for people throughout the world. Every day governments that violate the rights of their citizens are challenged and called to task. Every day human beings worldwide mobilize and confront injustice and inhumanity. Like drops of water falling on a rock, they wear down the forces of oppression and move the world closer to achieving the principles expressed in the Universal Declaration of Human Rights.
Role of National Human Rights Commission of India
The Government of India did realize the need to establish an independent body for promotion and protection of human rights. The establishment of an autonomous National Human Rights Commission (Commission) by the Government of India reflects its commitment for effective implementation of human rights provisions under national and international instruments. The Commission came into effect on 12 October 1993, by virtue of the Protection of Human Rights Act 1993. Fourteen Indian States have also set up their own human rights commissions to deal with violations from within their states. The Act contains broad provisions related with its function and powers, composition and other related aspects. The Indian Constitution provides certain rights for individuals in Part III of the Constitution, which are known as the fundamental rights. Part IV sets out the Directive Principles of State Policy. While the former guarantees certain rights to the individual, the latter gives direction to the State to provide economic and social rights to its people in specified manner.
The word fundamental means that these rights are inherent in all the human beings and basic and essential for the individual. However, the rights guaranteed in the Constitution are required to be in conformity with the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights in view of the fact that India has become a party to these Covenants by ratifying them. The justifiability of fundamental rights is itself guaranteed under the Indian Constitution. The responsibility for the enforcement of the fundamental rights lies with the Supreme Court by virtue of Article 32 and by Article 226 to the High Courts. The Constitution of the Commission dealt with in Chapter II of the Act. Section 3 of the Act says:, “ the Central government shall constitute a body to be known to the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act. 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 Court; (c) One Member who is, or has been the Chief Justice of the High Court; (d) Two members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights. The headquarters of the Commission shall be Delhi and the Commission may, with the previous approval of the Central Government, establish offices at other places in India. Wide powers and functions have been given to the Commission under section12 of the Act. The paragraph (a) of section 12 provides, that the Commission can enquire suo motu action against any public servant against whom a complaint has been registered for violation of human rights. Section 12(b) provides that the Commission can intervene in any proceeding involving any allegation of a violation of human rights pending before a Court with the approval of such Court. Section 12(c) empowers the Commission to visit any jail or other institution prior intimation to the State Government, for the purpose of mainly monitoring prison or custodial jurisprudence.
The Commission can make recommendations to State Governments on the basis of such visits. The Commission found after visiting many jails that pathetic conditions prevailed in jails in which prisoners are forced to live. In its view this is not due to a lack of ideas but due to apathy and lack of priority accorded to prison conditions and the rights of prisoners and under trials. The Commission has already initiated action to improve prison conditions in India, and started studying all prevailing reports related with prisons. The Commission has recommended the preparation of a new All India Jail Manual and also suggested the revision of the old Indian Prison Act of 1894. The Commission sought help from all who believe that human dignity must not be left when a person enters the gates of a prison. Section 12(d) empowers the Commission to review the safeguards provided under the Constitution or any law for the time being in force for the protection of human rights and also to recommend measures for their effective implementation.
Under Section 12(e) there is a separate provision to review the causes of terrorism, which inhibits the enjoyment of human rights, and to recommend appropriate remedial measures. Section 12(f) provides for the study of all treaties related with international human rights instruments and the making of recommendations for their effective implementation. Section 12 (g) provides for promotion of research in the field of human rights. Section 12(h) empowers the Commission to spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publication, the media, seminars and other available means. Section 12(i) empowers the Commission to encourage the efforts of Non- governmental organisations (NGOs) working in the field of human rights. Lastly, Section 12(j) provides, such other functions as it may consider necessary for the promotion of human rights.
A MAPPING OF HUMAN RIGHTS ISSUES IN INDIA
This section sets out the issues which inhabit the human rights landscape in areas of ordinary governance. Custodial Violence
Custody deaths, torture in custody and custodial rape have been subjects of much concern. Custodial violence has been on the agenda of civil rights groups for over two decades, and reports documenting instances of violence and its systemic occurrence, have been instrumental in the campaigns against custodial violence. Although custody deaths have found an acknowledgment from the state, and the NHRC has issued directions to the states • To report of the NHRC any death in custody within 24 hours of the occurrence, and • To videotape the post-mortem proceedings,
it is difficult to assess if this has resulted in any reduction in the incidence of custody deaths. NHRC reports show a marked increase in the reported cases of custody deaths each year. This is attributed, by the NHRC, to increased reporting and not to increased incidence of the crime; this, however, needs to be further investigated. The incidence of custody deaths demonstrates more undeniably the brutalization of the processes of law enforcement by the police and armed forces. However, custodial torture (not resulting in death) is not at the focus of campaigns to reduce custodial violence. There are few places which have taken up the treatment of the victims of torture as victims of torture. The Indian state, in the meantime, has resisted attempts (including that of the NHRC) to have it ratify the Torture Convention.
Sexual Harassment at the Workplace
This issue acquired visibility with the decision of the Supreme Court in “Vishaka v. State of Rajasthan”. The Supreme Court of India in its 1977 judgment in Vishakha and others vs. State of Rajasthan and others makes it obligatory for every employer and other responsible persons to follow the guidelines laid down by the Court and to evolve a specific policy to combat sexual harassment in the workplace. Educational institutions are bound by the same directive. The right of women to protection from sexual harassment and the right to work with dignity are recognized as universal human rights by international instruments such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which has been ratified by India.
The Supreme Court in the Vishakha judgment has held that each incident of sexual harassment results in the violation of the fundamental rights of Gender Equality and the Right to Life and Liberty. Sexual harassment is a clear violation of woman’s right to gender equality as guaranteed under Articles 14 and 15, her right to live with dignity under Article 21 and her right to work with dignity in a safe environment under Article 19 (1) (g) of the Constitution of India. Sexual harassment accompanied by violence has become a common feature with cases of acid throwing where there is unrequited love, and harassment which has culminated in the murder of a hounded girl. Rape
In the ‘80s and into the early ‘90s,
• The definition of rape
• The meaning of consent in the context of rape
• Marital rape
Was widely discussed, and alternative drafts and definitions essayed. In 1994, the National Commission for Women (NCW) was asked by the Supreme Court to propose a scheme for establishing Rape Crisis Centers, and for a Criminal Injuries Compensation Board, which could care for victims of crime. This is yet to materialize. In the meantime, the women’s movement in Rajasthan has got the administration to provide monetary relief to victims of rape, unconnected with trial and conviction. Though this has, at least occasionally, resulted in the veracity of the accusation being challenged as having been made so as to obtain the sum in compensation, it is seen as a move to helping the woman recover. The low rates of conviction for rape, and the protest from women’s groups, were held out to justify a proposed amendment to criminal law to provide death penalty for the offence of rape. The conflict between provisions of the death penalty and human rights has surfaced, even if gradually, and the groups we met, as well as the National Commission for Women, have rejected the proposal for death penalty for the offence of rape. Domestic Violence
The US Office on Violence Against Women (OVW) defines domestic violence as a “pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner”. The definition adds that domestic violence “can happen to anyone regardless of race, age, sexual orientation, religion, or gender”, and can take many forms, including physical abuse, sexual abuse, emotional, economic, and psychological abuse.. There has been a concerted effort to bring in a law to deal with domestic violence. A Bill prepared, debated and presented to the government by a women’s organization has been adopted by Parliament for discussion, which is a significant step in a non-governmental role in law making. S.498 A was introduced into the Penal Code in 1983. It makes cruelty to a woman within the matrimonial home punishable with imprisonment up to three years and fine. It is a cognizable, non-bailable, offence. Widespread violence against women, and increasing evidence of women dying unnatural deaths in the matrimonial homes provoked the women’s movement to demand a change in the criminal law.
The offence is non-bailable, that is a complaint under s.498 A, once registered as an FIR, would result in the arrest of the members of the matrimonial family of the woman. They would have to be granted bail by a court before release, and this could keep them in custody for varying periods of time. In matters of remission of sentence, too, offenders convicted under s.498 A may be excluded. On the one hand, there have been complaints of the misuse of this provision, and the consequent harassment, often incarceration, of many members of the family complained against. On the other, there is little scope to deny that the incidence of cruelty, including physical cruelty, which leads even to death, is extraordinarily high. This is an issue yet unresolved; the Domestic Violence Bill may have some impact on it. In the meantime, an activist lawyer asserts that the phenomenon of violence and death in the matrimonial home should not need to be linked invariably with the phenomenon of dowry; violence and cruelty are independent entities within many homes. An activist also told us: when a man beats his wife regularly, and the wife gets him soundly thrashed by the police, civil liberties groups are sometimes confused on what stand to take. Child Marriage
Though a law prohibiting child marriage has been in the statute books since 1929, it is still performed in many parts of India. For instance, the practice of performing child marriages on Akha Teej, it is reported, has not stopped in Rajasthan. According to UNICEF, 47% of girls are married by 18 years of age, and 18% are married by 15 years of age. India has made child marriage illegal, but it is still widely practiced across the nation. The highest rates are seen particularly in the rural states of Andhra Pradesh, Bihar, Madhya Pradesh, Rajasthan, and Uttar Pradesh. Coming into effect on November 1, 2007, the Prohibition of Child Marriage Act (PCMA) was put into place to address and fix the shortcomings of the Child Marriage Restraint Act. The change in name was meant to reflect the prevention and prohibition of child marriage, rather than restraining it. Child Labour
The Constitution of India in the Fundamental Rights and the Directive Principles of State Policy prohibits child labor below the age of 14 years in any factory or mine or engaged in any other hazardous employment (Article 24). Apart from the employment of children in work, including those classified as hazardous, it is reported that • Child workers employed in homes and in commercial workplaces were subjected to ill-treatment. The chaining of bonded child labour in the carpet industry near Varanasi so that they could not escape was reported. Injuries on the person of domestic child workers in Delhi sometimes resulting in death have been reported intermittently in the press. In Maharashtra, a civil liberties organization took the state and a contractor to court when the latter ill-treated, resulting in death, one of the young boys he had brought with him from Tamil Nadu. These manifestations of violence against the child disguised as child labour calls to be addressed.
In 2001, out of a 12.6 million, about 12 million children in India were in a hazardous job. UNICEF estimates that India with its larger population, has the highest number of labourers in the world under 14 years of age, while sub-saharan African countries have the highest percentage of children who are deployed as child labour. In 1993, the Supreme Court declared that education is a fundamental right till a child reaches the age of 14 years. Education for the child has got tangled with the issue of child labour; sending the child to school is projected as a necessary step to ending the practice of child labour. In Andhra Pradesh, an organisation working in the area of education for children has done away with the uncertainties of definition by working on the premise that every child out of school is child labour. They have therefore arrived at a non-negotiable: that every child must belong in a school. In this view, NFE (non-formal education) centres, for instance, would be a means of perpetuating child labour. So, too, with the adjusting of school timings to accommodate the working child. Child Abuse
There has been increasing evidence of child abuse, and more particularly child sexual abuse, being pervasive. The perpetrator is often a near relative or someone close to the family. This adds to the vulnerability of the abused child, and, apart from the confusion and sense of shame which the child experiences, it is also that there is a problem with a refuge which the child can access. The dependence on the family as a support structure in times of abuse breaks down when the offending event occurs in the home. Following what is widely considered as a useful intervention in the Supreme Court in the Vishaka guidelines regarding sexual harassment in the workplace, the matter of child abuse has also been taken to the court, and the Law Commission has been inducted into setting the parameters for care and action in cases of child sexual abuse.
The fear of AIDS, it is perceived, has given the issue of prostitution a visibility. This has, however, led to attributing to women in prostitution the trait of being a ‘high risk group’, even as it has been contended that it is high risk behaviour and not high risk groups that should be targeted. It appears that patterns of funding have impacted on this identification of the prostitute woman as belonging to a high-risk group. The demand for prostitution to be recognised as ‘sex work’ has been raised, with dignity of the woman in prostitution as its basis. There are differing perceptions about prostitution – one which sees it as exploitative of women, and another that views it as representing the ‘agency’ of the women in the profession. There are various shades of meaning given to ‘exploitation’ and ‘agency’ which lies in the spaces between these two positions.
Decriminalisation is also proposed, and disputed, on differing understandings of what decriminalising will mean, and do. Most of the people we spoke to on the issue of prostitution, however, felt after a discussion emphasizing the difference, that the practice of prostitution should be delinked from the issue of trafficking. In this context, trafficking is seen to be the sale and purchase of women and girls, and, more recently, boys, into prostitution. While ‘voluntariness’ is a term with graded meanings, especially since economic compulsions and social exclusion are not uncommon causes for entering into the practice of prostitution, it is the distinctly involuntary nature of trading in human beings that is at the hub of trafficking. Trafficking in minors is a scourge that is commonly referred to as a crime to be curbed. The issue has been invisibilised over the years, and with people in high places being involved, it has helped to send it further underground. In the matter of trafficking, it was pointed out that proposals for checking all women travelling on their own, particularly across borders was a move detrimental to the interests of women and could end up curbing their right to free movement and achieve little else.
While trafficking in women is rampant in many parts of the country, and also across borders, it is Kerala that the sexual exploitation of women and trafficking has been exposed, and the accused brought to trial and conviction. The Surinelli case, the Ice Cream Parlour case and the Vidhura case are undiluted narratives of sexual exploitation. In the Surinelli case, forty persons, including prominent political figures and persons from the establishment among them, were convicted after a prolonged trial in 2000. They are now on bail while their appeal is pending. Some women’s activists have been studying the issue of migration and trafficking – whether for prostitution, labour in sweat shops, domestic work which is often ill-paid and oppressive, or as mail order brides — while recognising that while migration makes women vulnerable to exploitation – and violence, migration is often not wholly involuntary. Women, for instance, migrate to escape violent domestic situations too. Shorn of its moral content, activists say, the law regarding trafficking could actually help women trafficked into situations for which they did not bargain. Bonded Labour
Though the Bonded Labour Act is of 1976 vintage, it was not till the Supreme Court’s judgment in December 1983 that the recognition of bonded labour acquired a national reach. As the champion of the bonded labour said it, it is
• Minimum wages
• Minimum guarantees of employment
• Child labour
• Land rights and
That needs to be dealt with to get people an experience of human rights. Identification, release and rehabilitation of bonded labour have happened essentially by court supervision. In Tamil Nadu, there is a separate ministry that has been set up to deal with bonded labour; this was following a report given to the Supreme Court of the extent of bonded labour prevalent in the state. The issue of bonded labour has been handed over by the court to the NHRC, which has set up a committee including activists, advocates and bureaucrats with experience, to find a means of dealing with the issue. Corruption and Criminalisation of Politics
Corruption has been at the centre of attention in various arenas in public life. In the recent past, criminalisation and corruption in politics has affected adversely the character, thinking process and inter-relationship of those constituents of the national elites, whose role matters the most in the development of the nation. Entry of criminals in politics, directly or indirectly has resulted in fragmentation of politics and erosion of rule of law. In rural areas, criminals and extortionists have strong political backing or feudal roots. Common man, especially the illiterate ones, who do not understand the complex and unpredictable behaviour of such politicians, are easily swept away by false promises or assurances or threats given to them during elections by politicians or their supporters. For them, politicians are their ‘mai baap’, who control their destiny. The criminalisation of politics brought out in the Vohra Committee report (1997), only confirmed what is commonly known to be a fact. The everyday corruption of the petty potentate will have to be understood in this larger context of institutionalized corruption and crime. The extent to which such corruption leads to every day violations of rights is popular knowledge; documenting instances, and the effect of such corruption, would help understand the human rights dimension of corruption as it affects the everyday person.
Responses and Strategies to curb the violations of Human Rights A. Courts
The setting up of human rights courts at the district level has begun, and activists have engaged with the process of establishing rules and guidelines in terms of the procedure to be adopted by these courts. These don’t seem to have become functional yet, and they remain sidelined and hazily constructed within the dominant judicial system. Mahila Courts, or courts for women, have been set up in some states, including Karnataka. The appointment of women as judges to person Mahila Courts, and the setting up of all women police stations, are measures that are expected to make the system more accessible, and sympathetic, to women. B. Compensation
Like the NHRC, the state too uses compensation as a remedial tool. Ex gratia payments made to victims is a response that has got standardised especially in areas of conflict. The state generally provides compensation for victims of ‘terrorist violence’. Victims of violence practised by the security forces, or state violence, is not accorded this recognition. C. Extraordinary Laws
While using the language of ‘law and order’, ‘public order’ and of ‘terrorism’, the state, at the centre and the states, has enacted extraordinary laws. These represent an assumption of extraordinary powers premised on security and safety of the state and of the population at large. D. Other Laws
The state has enacted, re-enacted, or amended, laws which deal with rights of populations considered vulnerable. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 is one instance. More recently, the Juvenile Justice Act 1986 was replaced by the Juvenile Justice (Care and Protection of Children) Act 2000. Both these laws have been through the process of consultation. In the case of the Persons with Disabilities Act, in 1998, the government set up a committee to review the legislation. The Committee held regional consultations where interested persons could state their position before the committee. No changes have, however, been brought into the legislation since then. Consultations were sponsored by the government and other agencies when changes to the JJ Act were being considered. A division of opinion on children in conflict with the law was discernible at a stage in the consultation. This was not investigated further, nor resolved. The government instead consulted with a closer group of professionals and the Juvenile Justice (Care and Protection of Children) Act 2000 was enacted as a result. E. Counselling
The setting up of Crimes Against Women cells in Delhi, for instance, is intended to provide a place for registering complaints seeking help, providing counselling and, where relevant, reconciliation. Violence in the home has been the primary target. F. National Commission for Women
Established by statute in 1990, this was one of the consequences of the demand of women’s groups that women be given a space in intervening on their own behalf. The NCW has, over the years
• intervened where women’s rights have been violated, as in the case of custodial rape, or where young women have been kept confined by their families to prevent them from going away with a man they choose to marry and live with; • constructed laws, with regard to domestic violence for instance, to be lobbied for acceptance by parliament; • conducted surveys, of women’s views on the imposition of death penalty for rape, for instance. • held consultations on a separate criminal code for women, for instance, or on the issue of cross-border trafficking; • organised meetings to mount pressure on issues such as the reservation of seats for women in parliament and the legislatures; The Supreme Court has on occasion, asked the NCW to prepare a scheme for the care of victims of rape. Some states, such as Kerala, have also set up a State Commission for Women. Judicial Activism
In so far as India is concerned, Judicial Activism and Human Rights are interconnected inexorably. In the context of human Rights, the Government had in the case of State of Maharastra v. Prabhakar Pandurang Sanzgiri, refused the publication of a manuscript of a book written by detenu under preventive detention. The Supreme Court held that this violated his personal liberty as no restriction other then those pescribed in the detention rule could be imposed . However this was not directly an issue of human rights but more an issue of condition of preventive detention. However, in some measure the seed of human rights litigation had been implanted. Sunil Batra v. delhi Administration is the harbinger of judicial activism in the context of human rights in the Supreme Court. In this case a convict under sentence of death was put in the solitary confinement. The post card was treated as a writ petion as amicus curiae were appointed who visited the jail, viewed the conditions of the solitary cell and filled a formal writ petiotion under article 32.
In Fertilizer Corporation Kamgar Union, Sindri v. Union of India, highlighted- “law is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction. In a society where freedoms suffer from atrophy and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public-minded citizen to rely on the legal process and not be repelled, from it by narrow pendency now surrounding locus standi”
The traditional locus standi doctrine in the context of public interest litigation, was formally and finally given a go bye in S.P. Gupta v. President of India, in the following terms- “(w)here a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under article 226 and in case of breach of any fundamental right of such persons, in this court under article 32 seeking judicial redress for legal wrong or injury caused to such person or determinate class of persons” Justice Bhagwati further observed-
“(I)t must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it. Today, a fast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning.”
H. Public Interest Litigation (PIL)
In Indian law, public-interest litigation is litigation for the protection of the public interest. PIL may be introduced in a court of law by the court itself (sumoto), rather than the aggrieved party or another third party. At its inception, the PIL jurisdiction of the High Courts and the Supreme Court, with a relaxed rule of standing and simplified procedure, where even a postcard sent to the court highlighting human rights violations could be converted into a petition was a means of asserting the court’s relevance in the human rights arena. The court has used • commissioners to do fact finding
• expert agencies to assist in deciding upon a course of action • the issuance of directions, and the monitoring of their implementation by the court through report-back methods • the involvement of all governments, at the state and the centre, since many of the issues have been systemic, and widespread, e.g., the condition of undertrial populations, or the cleaning up of cities. I. Commissions of Inquiry
The appointment of judges to constitute commissions of inquiry under the Commissions of Inquiry Act 1952 is a commonly used device to quell immediate protest and agitation, and to provide a veneer of impartiality to the investigation. This process has lost quite significantly in terms of credibility, since most commission reports come long after the event, and all too often gives a clean chit to the government. The Srikrishna Commission of Inquiry into the Bombay riots of 1992-93 following the demolition of the Babri Masjid is held out by activists as an exception. There is an appropriation by human rights activists of the device of ‘Commissions of Inquiry’, and this device has been resorted to regularly in the past decade. The legal aid system, now established under the Legal Services Authorities Act 1987, is one potential intervention in the arena of human rights. It however remains litigation-dominated, and is unavailable at the points in the system where human rights violations may occur. The dearth, near-absence, of legal aid available for the victims of the Union Carbide disaster in Bhopal has been represented as one instance of the incapacity, or neglect, of the legal aid system in responding to counselling, litigative and consultative needs of a victim-population. J. The Role of Nongovernmental Organizations
Globally the champions of human rights have most often been citizens, not government officials. In particular, nongovernmental organizations (NGOs) have played a cardinal role in focusing the international community on human rights issues. For example, NGO activities surrounding the 1995 United Nations Fourth World Conference on Women in Beijing, China, drew unprecedented attention to serious violations of the human rights of women. Organizational independence and operational self-sustainability of an NGO can be achieved by an emphasis on their mediation and consultation roles, but without disregarding the social welfare role. * The Social Welfare Role – where relief and charity are key actions. NGOs in this role can be seen as initiating internal programmes and projects. Major secondary actors who would support the NGO in this role include international donor agencies and other charity institutions. * The Mediatory Role – where communication as a skill is important for development and social action. NGOs in this role can be seen as participating or taking up external programmes and projects. Major secondary actors include government agencies and other formal institutions. * The Consultative Role – where support, documentation and dissemination of information and expertise is critical. NGOs in this role can be seen as working in collaborative programmes. Local experts/professionals/resource persons play major secondary roles
* Pravin H. Parekh.”Human rights yearbook 2010”, Universal Law Publishing Co. Pvt. Ltd. * Pravin H. Parekh.”Human rights yearbook 2009”, Universal Law Publishing Co. Pvt. Ltd. * AIR 1995
* Constitutional Law of India- H.M. Seervai.4th edition,Vol -3, Pub. By
Universal Law Publishing Co. PVT. LTD. * Dr. Ambedkar and the Indian Constitution – Prof. G. Manoher Rao, Pub. By Asia law house. * Commentary on the Constitution of India- D.D. Basu, Justice CK Thakker, Justice SS Subramani,Justice TS Doabia, Justice BP Banerjee. Pub. By Lexis Nexis. * Public Interest Litigation- P.M. Bakshi, 3rd edition, Pub. By Ashoka Law House.
[ 2 ]. Pravin H. Parekh.”Human rights yearbook 2010”, Universal Law Publishing Co. Pvt. Ltd. P.19 [ 3 ]. Pravin H. Parekh.”Human rights yearbook 2009”, Universal Law Publishing Co. Pvt. Ltd. Pp 8-9 [ 4 ]. Ibid p.12
[ 5 ]. Ibid p.13
[ 6 ]. The Commission was constituted by an Act of Parliament. The Act is divided into eight Chapters consisting of 43 Articles. Special powers conferred to the Commission under Article 10 ( c) which says, “the Commission shall regulate its own procedure.” There are 19 Articles under Procedural Regulations. [ 7 ]. India ratified both instruments on 10th April 1979.
[ 8 ]. Delhi Domestic Working Women’s Forum v. union of India (1995) 1 SCC 14.No scheme has yet emerged from the exercise that must have followed from the 1994 order.