AL-AMEEN COLLEGE OF LAW

IV SEMESTER 3 YEARS LL.B., COURSE &

VIII SEMESTER 5 YEARS B.A., LL.B.

HUMAN RIGHTS LAW AND PRACTICE

MODEL ANSWER PAPER- 2020/

IMORTANT QUESTIONS WITH ANSWERS

Prepared By:
Ms. Sahana Florence
Asst. Prof.
Al-Ameen College of Law.
 UNIT-1

Q.N0.1. what is meant by Human rights? Trace the origin and development of Human
Rights.

Human rights may be regarded as those fundamental and inalienable rights which are
essential for life as human being. Human rights are the rights which is possessed by every
human being, irrespective of his or her nationality, race, religion, sex, etc. because he or she
is a human being.

Definition

According to HOLLAND :- it is the capacity residing in one man or controlling,

with the assent and assistance of the state the action of others.

According Section 2(1) (d) the protection of Human rights Act 1993, human rights
“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”.

According to Universal Declaration of Human Rights, the expression ‘human

rights’ denotes all those rights which are inherent in our nature and without which we cannot
live as human beings.

Origin of Human Rights:

The roots for the protection of the rights of man may be traced as far back as in the
Babylonian laws.

The Golden Rule, Cyrus Cylinder (539 BC)

In 539 BC, the armies of Cyprus, the great, the First King of Ancient Persia (today known as
Iran,) conquered the city of Babylon. He freed the slaves, declared that all people had the
right to choose their own religion, and established racial equality.
These were recorded on a baked clay cylinder known today as the Cyrus Cylinder.

Early Islamic Caliphate.

Many reforms in Human rights took place under Islam between 610-661. Including the period
of Muhammad’s Mission and his successors.

The constitution of Madina established the security of the community, freedom of religion,
the security of women, tax system, a system for granting protection of individual, a judicial
system for resolving disputes,
The spread of Human rights
Babylonian king Hammurabi had issued a set of law to his people which is called
Hammurabi’s codes established fair wages, offered protection of property and required
charges to be proved at trial.

Assyrian laws, Hittiti laws and the Dharma of the Vedic period in India also devised different
sets of standards by which obligations of one was provided to another. Jurisprudence of Lao-
Tze and Confucius in China also protected human rights.

Thus the world’s all major religions have a humanist perspective that supports human rights
despite the difference in the contents.

Human rights are also rooted in ancient thought and in the philosophical concepts of natural
law and natural rights.

Plato was one of the earliest writers to advocate a universal standard of ethical conduct.

Aristotle wrote in politics that justice, virtue and rights change in accordance with different
kinds of constitution and circumstances.

Cicero a Roman Statesman laid down the foundations of natural law and human rights in his
work “The Laws”. He believed that there should be universal human rights laws that would
transcend customary and civil laws.

Sophocles was one of the 1st to promote the idea of freedom of expression against the state.

The origins of the concept of human rights are usually agreed to be found in the Greco-
Roman natural law doctrines of stoicism, which held that a universal force pervades all
creation and that human conduct should therefore be judged according to the law of nature.

The Magna Carta or the great charter of the liberties of England granted by King John of
England in 1215.

The theme of this charter was protection against arbitrary acts by the king. Land and property
could no longer be sized, judges had to know and respect law, taxes could not be imposed
without common council, there would no imprisonment without trial and merchants were
granted the right to travel freely within England and outside.

It stated the principle that the power of the king was not absolute.

The expression “fundamental rights” of man was stated in the declaration and constitutional
rights of man was stated in the declarations and constitutional instruments of many states.

 The Virginia Declaration

 The constitution of the US of 1787
  The French declaration of the Rights of Man and the Citizen of 1789.

Thus the term was 1st used by Thomas Paine in the English Translation of the French
Declaration of the Rights of man and citizen.

The United Nations.

After the impact of World War 2 between 1939-1945, millions of people were dead, millions
more were homeless, starving.
In 1945 delegates from 50 nations met at San Francisco with a hope. They agreed to create a
new body the Unites States to promote peace and prevent future wars.

The Charter of United Nations came into effect in 1945.

The universal Declaration of Human Rights (1948)

On 10th December 1948 this declaration was adopted. A first international legal effort to limit
the behavior of states and press them duties to their citizens following the model of the rights
and duties.

The document was structured to include the basic principles of dignity, liberty, equality and
brotherhood in the first 2 decades followed successively by rights pertaining to individuals;
groups, spiritual, public, political, economic, social and cultural rights.

Q.No.2. Define Human Rights. What are the sources of International Human Rights
Law?

International human rights law is part of public international law. Human Rights can
be defined as basic rights and freedoms to which all humans are entitled such as civil and
political rights, the right to life and liberty, freedom of thought and expression, equality
before the law, social, cultural and economic rights, including the right to participate in
culture, the right to food, the right to work, and the right to education.
International Court of Justice
Article 38 of the International Court of Justice Statute outlines the sources of law as follows:

1. International conventions recognized by contesting states (includes treaties)

2. International custom
3. General principles of law recognized by civilized nations
4. Judicial decisions and teachings of the most highly qualified publicists (academic
writings)

A. International conventions:-
 International treaties are contracts signed between states. They are legally binding and
impose mutual obligations on the states that are party to any particular treaty (states parties).
The main particularity of human rights treaties is that they impose obligations on states about
the manner in which they treat all individuals within their jurisdiction.

Even though the sources of international law are not hierarchical, treaties have some
degree of primacy. More than forty major international conventions for the protection of
human rights have been adopted. International human rights treaties bear various titles,
including ‘covenant’, ‘convention’ and ‘protocol’; but what they share are the explicit
indication of states parties to be bound by their terms.

Human rights treaties have been adopted at the universal level (within the framework
of the United Nations and its specialised agencies, for instance, the ILO and UNESCO) as
well as under the auspices of regional organisations, such as the Council of Europe (CoE), the
Organisation of American States (OAS) and the African Union (AU) (formerly the
Organisation of African Unity (OAU)). These organisations have greatly contributed to the
codification of a comprehensive and consistent body of human rights law.

Universal conventions for the protection of human rights

The UDHR, was adopted by a resolution of the United Nations General Assembly
(UNGA), although not a treaty, is the earliest comprehensive human rights instrument
adopted by the international community. On the same day that it adopted the Universal
Declaration, the UNGA requested the UN Commission on Human Rights to prepare, as a
matter of priority, a legally binding human rights convention. Wide differences in economic
and social philosophies hampered efforts to achieve agreement on a single instrument, but in
1954 two draft conventions were completed and submitted to the UNGA for consideration.

Twelve years later, in 1966, the International Covenant on Economic, Social and Cultural
Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were
adopted, as well as the First Optional Protocol to the ICCPR, which established an individual
complaints procedure. Both Covenants and the Optional Protocol entered into force in 1976.

A Second Optional Protocol to the ICCPR, on the abolition of the death penalty, was
adopted in 1989 and entered into force in 1991. The ‘International Bill of Human Rights’
consists of the Universal Declaration of Human Rights, the ICESCR and the ICCPR and its
two Optional Protocols. The International Bill of Rights is the basis for numerous
conventions and national constitutions. The ICESCR and the ICCPR are key international
human rights instruments. They have a common Preamble and Article 1, in which the right to
self-determination is defined. The ICCPR primarily contains civil and political rights.

The ICESCR consists of a catalogue of economic, social and cultural rights in the same vein
as the ‘social’ part of the UDHR. Besides the International Bill of Human Rights, a number
of other instruments have been adopted under the auspices of the UN and other international
agencies. They may be divided into three groups:

a) Conventions elaborating on certain rights, inter alia:

 The Convention on the Prevention and Punishment of the Crime of Genocide
(1948)
 ILO 98 concerning the Right to Organise and to Bargain Collectively (1949)
 The Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984)
 International Convention for the Protection of All Persons from Enforced
Disappearance (2006)

b) Conventions dealing with certain categories of persons which may need

special protection, inter alia:
 The Convention relating to the Status of Refugees (1951), and the 1967 Protocol
thereto
 The Convention on the Rights of the Child (1989)
 Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflicts (2000)
 Optional Protocol to the Convention on the Rights of the Child on the sale of
children,child prostitution and child pornography (2000)
 ILO 169 concerning Indigenous and Tribal Peoples in Independent Countries
(1989)
 The International Convention on the Protection of the Rights of All Migrant
Workers andMembers of Their Families (1990)
 The Convention on the Rights of Persons with Disabilities (2006)

c) Conventions seeking to eliminate discrimination

 ILO 111 concerning Discrimination in respect of Employment and

Occupation (1958)
 UNESCO Convention against Discrimination in Education (1960)
 The International Convention on the Elimination of All Forms of Racial
Discrimination (1965)
 The International Convention on the Suppression and Punishment of the
Crime of Apartheid(1973)
 The Convention on the Elimination of All Forms of Discrimination Against
Women (1979)and its Optional Protocol (2000)

C. Regional conventions for the protection of human rights

 The UN Charter encourages the adoption of regional instruments for the
establishment of human rights obligations, many of which have been of crucial importance
for the development of international human rights law. The American Convention on Human
Rights was adopted in 1969, under the auspices of the Organisation of American States. This
Convention has been complemented by two protocols, the 1988 Protocol of San Salvador on
economic, social and cultural rights and the 1990 Protocol to abolish the death penalty.

In 1981, the Organisation of African Unity, now the African Union, adopted the
African Charter on Human and Peoples’ Rights. Three protocols to the Charter have been
adopted: the Additional Protocol on the Establishment of the African Court on Human and
Peoples’ Rights (1998), the Protocol on the Rights of Women in Africa (2003) and the
Protocol on the Statute of the African Court of Justice and Human Rights (2008).

B. International custom:-

Customary international law plays a crucial role in international human rights law.
The Statute of the International Court of Justice refers to ‘general practice accepted as law’.
In order to become international customary law, the ‘general practice’ needs to represent a
broad consensus in terms of content and applicability, deriving from a sense that the practice
is obligatory (opinion juris et necessitatis). Customary law is binding on all states (except
those that may have objected to it during its formation), whether or not they have ratified any
relevant treaty. One of the important features of customary international law is that
customary law may, under certain circumstances, lead to universal jurisdiction or application,
so that any national court may hear extra-territorial claims brought under international law.

In addition, there also exists a class of customary international law, jus cogens, or
peremptory norms of general international law, which are norms accepted and recognized by
the international community of states as a whole as norms from which noderogation is
permitted. Under the Vienna Convention on the Law of Treaties (VCLT) any treaty which
conflicts with a peremptory norm is void. Many scholars argue that some standards laid down
in the Universal Declaration of Human Rights (which in formal terms is only a resolution of
the UNGA and as such not legally binding) have become part of customary international law
as a result of subsequent practice; therefore, they would be binding upon all states. Within the
realm of human rights law the distinction between concepts of customary law, treaty law and
general principles of law are often unclear.

C. General principles of law

In the application of both national and international law, general or guiding principles are
used. In international law they have been defined as ‘logical propositions resulting from
judicial reasoning on the basis of existing pieces of international law’.

At the international level, general principles of law occupy an important place in case-law
regarding human rights. A clear example is the principle of proportionality, which is
important for human rights supervisory mechanisms in assessing whether interference with a
human right may be justified.

D. Subsidiary means for the determination of rules of law

According to Article 38 of the Statute of the International Court of Justice, judicial

decisions and the teachings of the most qualified publicists are ‘subsidiary means for the
determination of rules of law’. Therefore, they are not, strictly speaking, formal sources, but
they are regarded as evidence of the state of the law.
As for the judicial decisions, Article 38 of the Statute of the International Court of
Justice is not confined to international decisions (such as the judgements of the International
Court of Justice, the Inter-American Court, the European Court and the future African Court
on Justice and Human Rights); decisions of national tribunals relating to human rights are
also subsidiary sources of law.

UNIT-II

Q.No.4. State the Human Rights that are provided under the U.N. Charter.

Universal Protection of Human Rights

The protection of human rights under modern International law has been tackled both at
Universal as well as regional level. At the Universal level, it is the United Nations which
started this benign work. Subsequently the example of the United Nations was emulated at
the regional level. Universal Protection of human rights as follows.

United Nations and Human Rights:

The Charter of the United Nations represents a significant advancement so far as faith
in and respect for human rights is concerned. The signing charter of the United Nations also
marks the formal recognition that human rights is the matter of international concern. The
appalling atrocities caused by the Nazis on the Jews and other races during the II world war
led to a strong movement for the International protection of fundamental human rights, and
the Charter contains numerous references to them.

The signing of the United Nation Charter which incorporates several provisions
concerning human rights has done much to stimulate the large amount of International human
rights which are respected today. The provisions concerning human rights runs throughout
the U.N. Charter “like a golden thread”. Much of the credit goes to the determined lobbying
by Non Governmental Organisations at the San Francisco were in favour of the adoption of
even stronger provisions concerning human rights. An attempt, which proved abortive, was
also made to incorporate in the U.N. Charter an International Bill of Human Rights.

 Provisions of the Charter Concerning Human Rights: concern for human rights is
woven into the U.N. Charter “like a golden thread”. Human rights would occupy a
significant chapter in any story of the U.N. their place in the original conception of
 the U.N. is underlined and highlighted in the Charter and there are as many as seven
references. They are:
Firstly, the preamble of the U.N. Charter begins with the words” We the people of the
United Nations”. These words are neither superfluous nor have crept in the preamble
incidentally. The framers of the Charter were so serious that they did not rest or stop
with the using of these words in the preamble but went on to give content to these
words in numerous provisions concerning human rights, elimination of colonialism,
non-self governing territories, economic and social co-operation etc. In this context,
the words, “We the people of the United Nations” are very meaningful. They indicate
the objections which the framers of the Charter wanted to achieve. After having made
this significant innovation in an international treaty, the preamble further reaffirms,
“faith in fundamental human rights, in the dignity and worth of human person, in the
equal rights of men and women.
Secondly, Article 1(3) provides that it is one of the purpose of the U.N. “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 for the fundamental freedoms for all without distinction as to race,
sex, language or religion”.
Thirdly, it is one of the responsibilities of the General Assembly to initiate studies and
make recommendations for the purpose of “promoting international cooperation in the
economic, social, cultural, education and health fields and assisting in the realisation
of human rights and fundamental freedoms for all without any distinction as to race,
sex, language or religion.”
Fourthly, Article 55 charges the United Nations to promote “universal respect for and
observance of human rights and fundamental freedoms for all without distinction as to
race, sex, language or religion”.
Fifthly, the Charter of the U.N. has empowered the Economic and Social Council to
make recommendations for the purpose of promoting respect for, and obligation of,
human rights and fundamental freedom for all.
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 functions.
Seventhly, one of the basic objectives of the Trusteeship Council in accordance with
the purposes of the U.N. laid down in Article 1 of 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 to encourage recognition of the interdependence of
the peoples of the world.
Thus the provisions of the U.N. Charter concerning human rights provide a
foundation and an impetus for further improvements in the protection of human
rights. They indicate the wide responsibilities of the international recognition of
human rights.
 Human Rights and Domestic Jurisdiction: one of the problems that arise in the
implementation of the human rights programme is the question of domestic
jurisdiction. This is because of Article 2(7) of the U.N. Charter which prohibits the
 U.N. “to intervene in matters which are essentially within the domestic jurisdiction of
any state” nor the U.N. “shall require the members to submit such matters to
settlement under the present Charter”. In any case, the question of domestic
jurisdiction does not arise in the case of implementation of the provisions of the
human rights covenants. Human Rights and Fundamental Freedoms, having become
the subject of a solemn international obligation and a fundamental purpose of the
Charter are not any longer a matter which is essentially within domestic jurisdiction
of the members of the United Nations.
 U.N. Bodies Primarily Concerned with Human Rights: followings are the U.N.
bodies mainly concerned with human rights:
i. Human Rights Council
ii. Sub-Commission on Prevention of Discrimination and Protection of
Minorities
iii. Commission on the status of women
iv. U.N. Commission for Human Rights
v. U.N. Centre for Human Rights
vi. Other U.N. Bodies primarily concerned with human rights.

Conclusion :-
Thus the provisions of the U.N. Charter concerning Human rights provisions provide a
foundation and an impetus for further improvement in the protection of human rights.

Q.No.5. Explain the importance provisions of the Universal Declaration of Human

Rights.

The Universal Declaration of Human Rights (UDHR) is a historic document. On

10 December 1948 the General Assembly of the United Nations adopted and proclaimed the
Universal Declaration of Human Rights. The Assembly called upon all Member countries to
publicize the text of the Declaration and “to cause it to be disseminated, displayed, read and
expounded principally in schools and other educational institutions, without distinction based
on the political status of countries or territories.” It consists of 30 articles which have been
elaborated in subsequent international treaties, regional human rights instruments, national
constitutions and laws. . In 1966 the General Assembly adopted the two detailed Covenants,
which complete the International Bill of Human Rights; and in 1976, after the Covenants had
been ratified by a sufficient number of individual nations, the Bill took on the force of
international law. The Universal Declaration of Human Rights is the cornerstone for modern
day human rights within the framework of the United Nations.

Article 1:- Right to equality

 All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood.
Article 2:- No Discrimination on the ground of race, colouretc
 Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
Article 3-21:- civil and political rights
Article 3:- right to Life, liberty and security
 Everyone has the right to life, liberty and security of person.
Article 4:- Prohibition of Slavery
 No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
Article 5:- Prohibition of torture and inhuman treatment
 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.
Article 6:- Right to recognition as a person before law
 Everyone has the right to recognition everywhere as a person before the law.
Article 7:- Equality before law and equal protection of law
 All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such discrimination.
Article 8:- Remedy for violation of fundamental rights
 Everyone has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the constitution or by law.
Article 9:- Prohibition against arbitrary arrest or detention
 No one shall be subjected to arbitrary arrest, detention or exile.
Article 10:- Right to have fair and public hearing
 Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him.
Article 11:- Presumption of innocence
 (1) Everyone charged with a penal offence has the right to be presumed
 innocent until proved guilty.
 (2) No one shall be held guilty of any penal offence on account of any act or
omission which did not constitute a penal offence, under national or international law,
at the time when it was committed. Nor shall a heavier penalty be imposed than the
one that was applicable at the time the penal offence was committed.
Article 12:- Right of privacy
 No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation.
Article 13:- Right to freedom of movement and residence
 (1) Everyone has the right to freedom of movement and residence within the borders
of each state.
 (2) Everyone has the right to leave any country, including his own, and to return to his
country.
Article 14:- Right to seek asylum
 (1) Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
 (2) This right may not be invoked in the case of prosecutions genuinely arising from
non-political crimes or from acts contrary to the purposes and principles of the United
Nations.
Article 15:- Right to Nationality
 (1) Everyone has the right to a nationality.
 (2) No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.
Article 16:- Right to marry
 (1) Men and women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution.
 (2) Marriage shall be entered into only with the free and full consent of the intending
spouses.
 (3) The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
Article 17:- Right to own property
 (1) Everyone has the right to own property alone as well as in association with others.
 (2) No one shall be arbitrarily deprived of his property.
Article 18:- right to freedom of thought, conscience and religion
 Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.
Article 19:- Right to freedom of opinion and expression
 Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.
Article 20:- Right to freedom of peaceful assembly
 (1) Everyone has the right to freedom of peaceful assembly and association.
 (2) No one may be compelled to belong to an association.
Article 21:- right to participate in the government
 (1) Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.
 (2) Everyone has the right of equal access to public service in his country.
 (3) The will of the people shall be the basis of the authority of government; this will
shall be expressed in periodic and genuine elections which shall be by universal and
equal suffrage and shall be held by secret vote or by equivalent free voting
procedures.
Article 22- 27 : Economic , social and cultural rights
Article 22:- Right to social security
 Everyone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international co-operation and in accordance
with the organization and resources of each State, of the economic, social and cultural
rights indispensable for his dignity and the free development of his personality.
Article 23:- Right to work
 (1) Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
 (2) Everyone, without any discrimination, has the right to equal pay for equal work.
 (3) Everyone who works has the right to just and favourable remuneration ensuring
for himself and his family an existence worthy of human dignity, and supplemented,
if necessary, by other means of social protection.
 (4) Everyone has the right to form and to join trade unions for the protection of his
interests.
Article 24:- right to rest and leisure
 Everyone has the right to rest and leisure, including reasonable limitation of working
hours and periodic holidays with pay.
Article 25:- Right to a standard of living
 (1) Everyone has the right to a standard of living adequate for the health and well-
being of himself and of his family, including food, clothing, housing and medical care
and necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.
 (2) Motherhood and childhood are entitled to special care and assistance. All children,
whether born in or out of wedlock, shall enjoy the same social protection.
Article 26:- Right to education
 (1) Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available and higher
education shall be equally accessible to all on the basis of merit.
 (2) Education shall be directed to the full development of the human personality and
to the strengthening of respect for human rights and fundamental freedoms. It shall
promote understanding, tolerance and friendship among all nations, racial or religious
groups, and shall further the activities of the United Nations for the maintenance of
peace.
 (3) Parents have a prior right to choose the kind of education that shall be given to
their children.
Article 27:- Right to enjoy culture
 (1) Everyone has the right freely to participate in the cultural life of the community, to
enjoy the arts and to share in scientific advancement and its benefits.
 (2) Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is the author.
Article : 28:- Right to enjoy human rights
  Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realized.
Article 29:- Right to free development of personality
 (1) Everyone has duties to the community in which alone the free and full
development of his personality is possible.
 (2) In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic
society.
 (3) These rights and freedoms may in no case be exercised contrary to the purposes
and principles of the United Nations.
Article 30:- duty to honour other’s rights
Nothing in this Declaration may be interpreted as implying for any State, group or person any
right to engage in any activity or to perform any act aimed at the destruction of any of the
rights and freedoms set forth herein

Q.No.6. Discuss Economic, Social and Cultural Rights under International Covenant on
Economic, Social and Cultural Rights.

The International Covenant on Economic, Social and Cultural Rights (ICESCR)

is a multilateral treaty adopted by the United Nations General Assembly on 16 December
1966 through GA. Resolution 2200A (XXI), and came in force from 3 January 1976. It
commits its parties to work toward the granting of economic, social, and cultural
rights (ESCR) to the Non-Self-Governing and Trust Territories and individuals,
including labour rights and the right to health, the right to education, and the right to an
adequate standard of living. As of September 2018, the Covenant has 169 parties. A further
four countries, including the United States, have signed but not ratified the Covenant.

PREAMBLE:
The Preamble to the Covenant states that state parties to the Covenant, in accordance
with the principles proclaimed in the Charter of the United Nations, should recognize the
inherent dignity and of the equal and inalienable rights of all members of the human family
which is the foundation of freedom, justice, and peace in the world. Article 1 of the ICESCR
states that all peoples have the right of self-determination, by virtue of which they can freely
determine their political status and freely pursue their economic, social and cultural
developments.
Preamble: The States Parties to the present Covenant, Considering that, in accordance with
the principles proclaimed in the Charter of the United Nations, 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, Recognizing that these rights derive
from the inherent dignity of the human person, Recognizing that, in accordance with the
Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom
from fear and want can only be achieved if conditions are created whereby everyone may
enjoy his economic, social and cultural rights, as well as his civil and political rights,
Considering the obligation of States under the Charter of the United Nations to promote
universal respect for, and observance of, human rights and freedoms, Realizing that the
individual, having duties to other individuals and to the community to which he belongs, is
under a responsibility to strive for the promotion and observance of the rights recognized in
the present Covenant, Agree upon the following articles:

STRUCTURE OF THE COVENANT:

The Covenant follows the structure of the UDHR and the ICCPR, with a preamble
and thirty-one articles, divided into five parts.
PART I
Article 1
1. All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic co-operation, based
upon the principle of mutual benefit, and international law. In no case may a people be
deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall promote the realization of
the right of self-determination, and shall respect that right, in conformity with the provisions
of the Charter of the United Nations.

PART II
Article 2
1. Each State Party to the present Covenant undertakes to take steps, individually and through
international assistance and co-operation, especially economic and technical, to the maximum
of its available resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means, including particularly the
adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated
in the present Covenant will be exercised without discrimination of any kind as to race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status. 3. Developing countries, with due regard to human rights and their
national economy, may determine to what extent they would guarantee the economic rights
recognized in the present Covenant to non nationals.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and
women to the enjoyment of all economic, social and cultural rights set forth in the present
Covenant.
Article 4
The States Parties to the present Covenant recognize that, in the enjoyment of those rights
provided by the State in conformity with the present Covenant, the State may subject such
rights only to such limitations as are determined by law only in so far as this may be
compatible with the nature of these rights and solely for the purpose of promoting the general
welfare in a democratic society.
Article 5
1. Nothing in the present Covenant may be interpreted as implying for any State, group or
person any right to engage in any activity or to perform any act aimed at the destruction of
any of the rights or freedoms recognized herein, or at their limitation to a greater extent than
is provided for in the present Covenant.
2. No restriction upon or derogation from any of the fundamental human rights recognized or
existing in any country in virtue of law, conventions, regulations or custom shall be admitted
on the pretext that the present Covenant does not recognize such rights or that it recognizes
them to a lesser extent.
PART III
Article 6
1. The States Parties to the present Covenant recognize the right to work, which includes the
right of everyone to the opportunity to gain his living by work which he freely chooses or
accepts, and will take appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full
realization of this right shall include technical and vocational guidance and training
programmes, policies and techniques to achieve steady economic, social and cultural
development and full and productive employment under conditions safeguarding fundamental
political and economic freedoms to the individual.
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment
of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal
remuneration for work of equal value without distinction of any kind, in particular women
being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for
equal work; (ii) A decent living for themselves and their families in accordance with the
provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate
higher level, subject to no considerations other than those of seniority and competence;
(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay,
as well as remuneration for public holidays.
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject
only to the rules of the organization concerned, for the promotion and protection of his
economic and social interests. No restrictions may be placed on the exercise of this right
other than those prescribed by law and which are necessary in a democratic society in the
interests of national security or public order or for the protection of the rights and freedoms of
others;
(b) The right of trade unions to establish national federations or confederations and the right
of the latter to form or join international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations other than those
prescribed by law and which are necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the
particular country.
2. This article shall not prevent the imposition of lawful restrictions on the exercise of these
rights by members of the armed forces or of the police or of the administration of the State.
3. Nothing in this article shall authorize States Parties to the International Labour
Organisation Convention of 1948 concerning Freedom of Association and Protection of the
Right to Organize to take legislative measures which would prejudice, or apply the law in
such a manner as would prejudice, the guarantees provided for in that Convention.

Article 9
The States Parties to the present Covenant recognize the right of everyone to social security,
including social insurance.
Article 10
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is
the natural and fundamental group unit of society, particularly for its establishment and while
it is responsible for the care and education of dependent children. Marriage must be entered
into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and
after childbirth. During such period working mothers should be accorded paid leave or leave
with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and
young persons without any discrimination for reasons of parentage or other conditions.
Children and young persons should be protected from economic and social exploitation.
Their employment in work harmful to their morals or health or dangerous to life or likely to
hamper their normal development should be punishable by law. States should also set age
limits below which the paid employment of child labour should be prohibited and punishable
by law.
Article 11
1. The States Parties to the present Covenant recognize the right of everyone to an adequate
standard of living for himself and his family, including adequate food, clothing and housing,
and to the continuous improvement of living conditions. The States Parties will take
appropriate steps to ensure the realization of this right, recognizing to this effect the essential
importance of international cooperation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone
to be free from hunger, shall take, individually and through international co-operation, the
measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full
use of technical and scientific knowledge, by disseminating knowledge of the principles of
nutrition and by developing or reforming agrarian systems in such a way as to achieve the
most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to
ensure an equitable distribution of world food supplies in relation to need.
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the
healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other
diseases; (d) The creation of conditions which would assure to all medical service and
medical attention in the event of sickness.
Article 13
1. The States Parties to the present Covenant recognize the right of everyone to education.
They agree that education shall be directed to the full development of the human personality
and the sense of its dignity, and shall strengthen the respect for human rights and fundamental
freedoms. They further agree that education shall enable all persons to participate effectively
in a free society, promote understanding, tolerance and friendship among all nations and all
racial, ethnic or religious groups, and further the activities of the United Nations for the
maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to achieving the full
realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary
education, shall be made generally available and accessible to all by every appropriate means,
and in particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by
every appropriate means, and in particular by the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those
persons who have not received or completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, an
adequate fellowship system shall be established, and the material conditions of teaching staff
shall be continuously improved.
3. The States Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to choose for their children schools, other than
those established by the public authorities, which conform to such minimum educational
standards as may be laid down or approved by the State and to ensure the religious and moral
education of their children in conformity with their own convictions.
4. No part of this article shall be construed so as to interfere with the liberty of individuals
and bodies to establish and direct educational institutions, subject always to the observance of
the principles set forth in paragraph I of this article and to the requirement that the education
given in such institutions shall conform to such minimum standards as may be laid down by
the State.
Article 15
1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for the conservation, the development
and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable
for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the
encouragement and development of international contacts and co-operation in the scientific
and cultural fields.
Q.No.7. Discuss the International Covenant on Civil and Political

The United Nations International Covenant of Civil and Political Rights (ICCPR) attempts to
ensure the protection of civil and political rights. It was adopted by the United Nations’
General Assembly on December 19, 1966, and it came into force on March 23, 1976. The
International Covenant on Economic Social and Cultural Rights, the Universal Declaration of
Human Rights, and the ICCPR and its two Optional Protocols, are collectively known as the
International Bill of Rights.

PURPOSE:

The ICCPR recognizes the inherent dignity of each individual and undertakes to promote
conditions within states to allow the enjoyment of civil and political rights. Countries that
have ratified the Covenant are obligated “to protect and preserve basic human rights… [and]
“Compelled to take administrative, judicial, and legislative measures in order to protect the
rights enshrined in the treaty and to provide an effective remedy.” There are currently 74
signatories and 168 parties to the ICCPR.
STRUCTURE OF THE COVENANT:

The ICCPR has 53 Articles divided into 6 parts. Which define in much greater detail
than the UDHR and imposing an absolute and immediate obligation on each of the state
parties to respect and ensure these rights to all individuals within its territories and subject to
its jurisdiction.
Part 1
(Article 1) recognizes the right of all peoples to self-determination, including the right
to "freely determine their political status", pursue their economic, social and cultural goals,
and manage and dispose of their own resources. It recognises a negative right of a people not
to be deprived of its means of subsistence, and imposes an obligation on those parties still
responsible for non-self governing and trust territories (colonies) to encourage and respect
their self-determination.
Part 2 (Articles 2 – 5)
Obliges parties to legislate where necessary to give effect to the rights recognised in
the Covenant, and to provide an effective legal remedy for any violation of those rights. It
also requires the rights be recognised "without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or
other status," and to ensure that they are enjoyed equally by women. The rights can only be
limited "in time of public emergency which threatens the life of the nation," and even then no
derogation is permitted from the rights to life, freedom from torture and slavery, the freedom
from retrospective law, the right to personhood, and freedom of
thought, conscience and religion.
Part 3 (Articles 6 – 27) lists the rights themselves. These include rights to:
 Physical Integrity, in the form of the right to life and freedom from torture and
slavery (Articles 6, 7, and 8)
Article 6 of the Covenant recognises the individual's "inherent right to life" and requires it to
be protected by law. It is a "supreme right" from which no derogation can be permitted, and
must be interpreted widely. It therefore requires parties to take positive measures to
reduce infant mortality and increase life expectancy, as well as forbidding arbitrary killings
by security forces. While Article 6 does not prohibit the death penalty, it restricts its
application to the "most serious crimes" and forbids it to be used on children and pregnant
women or in a manner contrary to the Convention on the Prevention and Punishment of the
Crime of Genocide. The UN Human Rights Committee interprets the Article as "strongly
suggesting that abolition is desirable", and regards any progress towards abolition of the
death penalty as advancing this right. The Second Optional Protocol commits its signatories
to the abolition of the death penalty within their borders.
Article 7 prohibits torture and cruel, inhuman or degrading punishment. As with Article 6, it
cannot be derogated from under any circumstances. The article is now interpreted to impose
similar obligations to those required by the United Nations Convention Against Torture,
including not just prohibition of torture, but active measures to prevent its use and a
prohibition on refoulement. In response to Nazi human experimentation during WW2 this
article explicitly includes a prohibition on medical and scientific experimentation without
consent.
Article 8 prohibits slavery and enforced servitude in all situations. The article also
prohibits forced labour, with exceptions for criminal punishment, military service and civil
obligations.

 Liberty and Security of the person (Articles 9 – 11)

Article 9 recognises the rights to liberty and security of the person. It prohibits arbitrary
arrest and detention, requires any deprivation of liberty to be according to law, and obliges
parties to allow those deprived of their liberty to challenge their imprisonment through the
courts. These provisions apply not just to those imprisoned as part of the criminal process,
but also to those detained due to mental illness, drug addiction, or for educational or
immigration purposes.
Articles 9.3 and 9.4 impose procedural safeguards around arrest, requiring anyone arrested
to be promptly informed of the charges against them, and to be brought promptly before a
judge. It also restricts the use of pre-trial detention, requiring that it not be 'the general rule'.
Article 10 requires anyone deprived of liberty to be treated with dignity and humanity. This
applies not just to prisoners, but also to those detained for immigration purposes or
psychiatric care. The right complements the Article 7 prohibition on torture and cruel,
inhuman or degrading treatment. The article also imposes specific obligations around
criminal justice, requiring prisoners in pretrial detention to be separated from convicted
prisoners, and children to be separated from adults. It requires prisons to be focused on
reform and rehabilitation rather than punishment.
 Article 11 prohibits the use of imprisonment as a punishment for breach of contract.
 Procedural fairness and rights of the accused (Articles 14, 15, and 16)
Article 14 recognizes and protects a right to justice and a fair trial. Article 14.1 establishes
the ground rules: everyone must be equal before the courts, and any hearing must take place
in open court before a competent, independent and impartial tribunal, with any judgment or
ruling made public. Closed hearings are only permitted for reasons of privacy, justice, or
national security, and judgments may only be suppressed in divorce cases or to protect the
interests of children. These obligations apply to both criminal and civil hearings, and to all
courts and tribunals. Article 14.3 mandates that litigants must be informed promptly and in
detail in a language which they understand.
The rest of the article imposes specific and detailed obligations around the process of
criminal trials in order to protect the rights of the accused and the right to a fair trial. It
establishes the Presumption of innocence and forbids double jeopardy. It requires that those
convicted of a crime be allowed to appeal to a higher tribunal, and requires victims of
a Miscarriage of justice to be compensated. It establishes rights to a speedy trial, to counsel,
against self-incrimination, and for the accused to be present and call and examine witnesses.
Article 15 prohibits prosecutions under Ex post facto law and the imposition of retrospective
criminal penalties, and requires the imposition of the lesser penalty where criminal sentences
have changed between the offence and conviction. But except the criminal according
to general principles of law recognized by international community.
Article 16 requires states to recognize everyone as a person before the law

 Individual liberty, (Articles 12, 13, 17 – 24)

Article 12 guarantees freedom of movement, including the right of persons to choose their
residence, to leave and return to a country. These rights apply to legal aliens as well as
citizens of a state, and can be restricted only where necessary to protect national security,
public order or health, and the rights and freedoms of others. The article also recognises a
right of people to enter their own country; the right of return. The Human Rights
Committee interprets this right broadly as applying not just to citizens, but also to those
stripped of or denied their nationality. They also regard it as near-absolute; "there are few, if
any, circumstances in which deprivation of the right to enter one's own country could be
reasonable".
Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to be
able to be appealed and reviewed.
Article 17 mandates the right of privacy. This provision, specifically article 17(1), protects
private adult consensual sexual activity, thereby nullifying prohibitions on homosexual
behaviour, however, the wording of this covenant's marriage right (Article 23) excludes the
extrapolation of a same-sex marriage right from this provision. Article 17 also protects people
against unlawful attacks to their honor and reputation. Article 17 (2) grants the protection of
the law against such attacks.
Article 18 mandates freedom of religion or belief.
Article 19 mandates freedom of expression.
Article 20 mandates sanctions against inciting war and hatred
Article 21 mandates freedom of assembly and
Article 22 mandates freedom of association. These provisions guarantee the right to freedom
of association, the right to trade unions and also defines the International Labour
Organization.
Article 23 mandates the right of marriage. The wording of this provision neither requires nor
prohibits same-sex marriage.
Article 24 mandates special protection, the right to a name, and the right to a nationality for
every child
Article 25 political participation, including the right to the right to vote
Article 26 & 27 mandates the Non-discrimination, minority rights and equality before the
law and rights of ethnic, religious and linguistic minority to enjoy their own culture, to
profess their own religion, and to use their own language
.

UNIT-III

Q.No.8. Discuss the European Court of Human Rights.

The European Convention on Human Rights has played an important role in the
development and awareness of Human Rights in Europe. The development of a regional
system of human rights protection operating across Europe can be seen as a direct response to
twin concerns. First, in the aftermath of the Second World War, the convention, drawing on
the inspiration of the Universal Declaration of Human Rights can be seen as part of a wider
response of the Allied Powers in delivering a human rights agenda through which it was
believed that the most serious human rights violations which had occurred during the Second
World War could be avoided in the future. Second, the Convention was a response to the
growth of Communism in Central and Eastern Europe and designed to protect the member
states of the Council of Europe from communist subversion. This, in part, explains the
constant references to values and principles that are "necessary in a democratic society"
throughout the Convention, despite the fact that such principles are not in any way defined
within the convention itself.

The Convention established the European Court of Human Rights (ECHR). Any
person who feels his or her rights have been violated under the Convention by a state party
can take a case to the Court. Judgments finding violations are binding on the States concerned
and they are obliged to execute them. The Committee of Ministers of the Council of
Europe monitors the execution of judgements, particularly to ensure payment of the amounts
awarded by the Court to the applicants in compensation for the damage they have sustained
The European Court of Human Rights is an international court set up in 1959. It rules on
individual or State applications alleging violations of the civil and political rights set out in
the European Convention on Human Rights. Since 1998 it has sat as a full-time court and
individuals can apply to it directly. In almost fifty years the Court has delivered more than
10,000 judgments. These are binding on the countries concerned and have led governments to
alter their legislation and administrative practice in a wide range of areas. The Court's case-
law makes the Convention a powerful living instrument for meeting new challenges and
consolidating the rule of law and democracy in Europe. The Court is based in Strasbourg, in
the Human Rights Building designed by the British architect Lord Richard Rogers in 1994 –
a building whose image is known worldwide. From here, the Court monitors respect for the
human rights of 800 million Europeans in the 47 Council of Europe member States that have
ratified the Convention.

The Court is responsible for ensuring that member states comply with their
obligations under the Convention. The Court hears the following types of cases:

 Private Petitions - brought by an individual against a state party alleging a violation

of one or more rights guaranteed by the Convention.
 Interstate Complaints - brought by one state party against another.
 Requests for Advisory Opinions - issued by the Committee of Ministers of the
Council of Europe.

Prior to 1999, private petitions initially were reviewed by a Commission on Human

Rights, which determined whether or not a petition would be referred to the Court for
adjudication on the merits. Since the Commission was abolished in 1999, individuals may
petition the Court directly. However, a petitioner must obtain a preliminary finding of
admissibility from the Court in order for the petition to be considered on the merits. Most
adjudications on the merits are heard by a chamber of seven judges. Under certain
circumstances, a judgment may be reviewed by grand chamber of 17 judges. The Court
issues substantive judgments in both English and French (initially in one language before
being translated into the other).

Composition of European Court of Human Rights:

The full-time European Court of Human Rights is composed of a number of judges
equal to that of the High Contracting States whose number in the year 2013 was 47. There is
no restriction on the number of judges of the same nationality. Judges who are totally
independent are elected by the Parliamentary Assembly of the Council of Europe for a term
of six years. The term of office of one-half of the judges elected at the first election shall
expire after three years, so as to ensure that the term of office of one-half of the judges is
renewed every three years. The judges shall be high moral character and must either possess
qualifications required for the appointment of high judicial office or be juris-consults of
recognised competence. Judges sit on the court in their individual capacity and do not
represent any states. They cannot engage themselves in any activity which is incompatible
with their independence or impartiality or with the demand of full-time office. Their terms of
office expire when they reach the age of 70. No judge may be dismissed from his office
unless the other judges decide by a majority of two-thirds that he has ceased to fulfil the
required conditions.

Jurisdiction of the Court:

The Court shall have jurisdiction to decide the cases brought either by the High Contracting
Parties or by Individuals.
(1) Inter-State Applications: A State Party to the Convention may refer to the Court any
alleged breach of the provisions of the Convention and Protocols thereto by another
Contracting party. The above implies that the system of inter-state cases for the
breaches of the provisions of the European Convention shall apply automatically for
the Contracting Parties.
(2) Individual Applications: The Court is empowered to receive individual applications
for the violations of human rights. It may receive applications from any person, non-
governmental organisations or group of individuals claiming to be the victim of a
violation by one of the High Contracting Parties of the rights set forth in the
Convention or to the Protocols thereto. The question of admissibility of the cases
brought by the individuals is decided by three judges of the Court. It is to be noted
that since the establishment of the court almost all applications have been lodged by
individuals who have brought their cases directly to the Court alleging one or more
violations of the Convention.
Examination of the Case and Friendly Settlement Proceedings:
If the Court declares the application admissible, it shall pursue the examination of the
case and if need be, undertake an investigation for the effective conduct of the case. The
Court may place itself at the disposal of the parties concerned with a view to securing a
friendly settlement of the matter on the basis of respect for human rights. The proceedings
conducted for the friendly settlement of the matter shall be confidential. Where an application
is not admissible, the Court encourages the parties to reach a friendly settlement. If this
proves impossible, the Court rules on the case in a chamber of seven judges or, in
exceptionally important cases, in a Grand Chamber made up of 17 judges.

Judgement of the Court:

The judgement of the Court is final. The judgement shall contain reasons for the
judgements. The final judgement of the Court is transmitted to the Committee of Ministers,
which supervises its execution. It verify whether the State found guilty of a violation have
indeed adopted the necessary general measures such as amendments to legislations, legal
doctrine, regulations etc. to avoid any other violations of same kind.

Advisory Jurisdiction:
Advisory jurisdiction was introduced by Protocol 2 which came into force in the year
1970. The Protocol provided that the Court may, at the request of the Committee of
Ministers, gives advisory opinion on legal questions concerning the interpretation of the
Convention and Protocols thereto. Decision of the Committee of Ministers to request an
advisory opinion of the Court shall require a majority of the representatives entitled to sit on
the Committee or not. The Court shall give reasons for the advisory opinion. Advisory
opinion given by the Court is not binding. Since the introduction of advisory jurisdiction only
three requests have been brought before the Court and two opinions have been delivered.

Cases Decided by the European Court of Human Rights:

 Lawless Case (Lawless vs. Ireland)
 Soering vs. United Kingdom
 Brogan vs. United Kingdom
 Lingens vs. Austria
 Handyside vs. United Kingdom

Q.No.9. Explain the functions of American Commission and American Court of Human
Rights.

The American Convention on Human Rights, also known as the Pact of San Jose,
is an international human rights instrument. It was adopted by many countries in the Western
Hemisphere in San Jose Costa Rica, on 22 November 1969. It came into force after the
eleventh instrument of ratification (that of Grenada) was deposited on 18 July 1978. The
bodies responsible for overseeing compliance with the Convention are the Inter-American
Commission on Human Rights and the Inter-American Court of Human Rights, both of
which are organs of the Organization of American States (OAS).
1. Inter American Commission of Human Rights
The Inter-American Commission on Human Rights (IACHR) addresses human
rights conditions and violations in the 35 Member States of the OAS (Organization of
American States). Established by an OAS resolution in 1959. OAS Member States
recognized the IACHR as the region’s principal human rights body through a protocol to
the OAS Charter which was adopted in 1967 and entered into force in 1970.
The Commission is composed of seven members who are elected by the OAS
Member States and who serve part-time and in their individual capacities for four-year terms
that may be renewed once. The commissioners are supported by the staff of the Executive
Secretariat. In June 2019, four seats on the Commission will be filled in an election.
The IACHR began operating in 1960, observing human rights conditions via on-site
visits, and in 1965 was authorized to begin processing specific complaints of human rights
violations. In addition to carrying out country visits and receiving complaints, the
Commission also holds thematic hearings on specific topical areas of concern, publishes
studies and reports, requests the adoption of precautionary measures to protect individuals at
risk, and has established several thematic rapporteurships to more closely monitor certain
human rights themes or the rights of specific communities in the hemisphere.
Individuals, groups of individuals, and non-governmental organizations recognized in
any OAS Member State may submit complaints (“petitions“) concerning alleged violations
of the American Declaration of the Rights and Duties of Man, American Convention on
Human Rights, and other regional human rights treaties The Commission receives
approximately 1,500 petitions every year.
The Commission’s Statute and Rules of Procedure outline its structure, objectives,
and procedures, although some aspects of the day-to-day processing of cases are determined
by the legal staff of the Executive Secretariat.

2. Inter-American Court of Human Rights

The Inter-American Court of Human Rights is the judicial organ of the Inter-
American human rights system. The Court’s mandate is more limited than that of the
Commission because the Court may only decide cases brought against the OAS Member
States that have specifically accepted the Court’s contentious jurisdiction and those cases
must first be processed by the Commission. Additionally, only States parties and the
Commission may refer contentious cases to the Court.
The Organization of American States established the Court in 1979 to enforce and
interpret the provisions of the American Convention on Human Rights. Its two main
functions are thus adjudicatory and advisory. Under the former, it hears and rules on the
specific cases of human rights violations referred to it. Under the latter, it issues opinions on
matters of legal interpretation brought to its attention by other OAS bodies or member states.

The seven judges of the Court are independent, but are chosen by States through the
OAS General Assembly. Judges are elected for a six-year term, once renewable. The Court
and its judges convene several times per year for sessions lasting up to two weeks, but its
staff works year-round.

Currently, 23 OAS Member States are States parties to the American Convention on
Human Rights, and 20 have opted to accept the Court’s contentious jurisdiction in accordance
with Article 62 of the American Convention. The Court began operating in 1979, and soon
issued several advisory opinions, but did not begin exercising its contentious jurisdiction until
1986, when the Commission submitted the first contentious case: Velasquez Rodriguez v.
Honduras, regarding which the Court issued a judgment on the merits in 1988.

The Court's advisory function enables it to respond to consultations submitted by

OAS agencies and member states regarding the interpretation of the Convention or other
instruments governing human rights in the Americas; it also empowers it to give advice on
domestic laws and proposed legislation, and to clarify whether or not they are compatible
with the Convention's provisions. This advisory jurisdiction is available to all OAS member
states, not only those that have ratified the Convention and accepted the Court's adjudicatory
function. The Court's replies to these consultations are published separately from its
contentious judgments, as advisory opinions.

Over the Court’s first several decades in operation, its annual case load has more than
doubled; many more States have found themselves before the Court; and the Court has
adjudicated a significant range of rights protected by the American Convention and ancillary
agreements, from extrajudicial execution and forced disappearance cases, to labour, land, and
freedom of expression rights.

The American Convention on Human Rights 1969, provides for two specialised enforcement
mechanism or as Article 33 of the American Convention provides they are organs having
“competence with respect to matters relating to the fulfilment of the commitments made by
the State Parties to this Convention”.
1. Inter American Commission of Human Rights; and
2. Inter American Court of Human Rights.
Inter American Commission of Human Rights

The Inter-American Commission on Human Rights (IACHR) addresses human

rights conditions and violations in the 35 Member States of the OAS (Organization of
American States). Established by an OAS resolution in 1959. OAS Member States
recognized the IACHR as the region’s principal human rights body through a protocol to
the OAS Charter which was adopted in 1967 and entered into force in 1970.
The Commission is composed of seven members who are elected by the OAS
Member States and who serve part-time and in their individual capacities for four-year terms
that may be renewed once. The commissioners are supported by the staff of the Executive
Secretariat. In June 2019, four seats on the Commission will be filled in an election.
The IACHR began operating in 1960, observing human rights conditions via on-site
visits, and in 1965 was authorized to begin processing specific complaints of human rights
violations. In addition to carrying out country visits and receiving complaints, the
Commission also holds thematic hearings on specific topical areas of concern, publishes
studies and reports, requests the adoption of precautionary measures to protect individuals at
risk, and has established several thematic rapporteurships to more closely monitor certain
human rights themes or the rights of specific communities in the hemisphere.
Individuals, groups of individuals, and non-governmental organizations recognized in
any OAS Member State may submit complaints (“petitions“) concerning alleged violations
of the American Declaration of the Rights and Duties of Man, American Convention on
Human Rights, and other regional human rights treaties The Commission receives
approximately 1,500 petitions every year.
The Commission’s Statute and Rules of Procedure outline its structure, objectives,
and procedures, although some aspects of the day-to-day processing of cases are determined
by the legal staff of the Executive Secretariat.

3. Inter-American Court of Human Rights

The Inter-American Court of Human Rights is the judicial organ of the Inter-
American human rights system. The Court’s mandate is more limited than that of the
Commission because the Court may only decide cases brought against the OAS Member
States that have specifically accepted the Court’s contentious jurisdiction and those cases
must first be processed by the Commission. Additionally, only States parties and the
Commission may refer contentious cases to the Court.
 The Organization of American States established the Court in 1979 to enforce and
interpret the provisions of the American Convention on Human Rights. Its two main
functions are thus adjudicatory and advisory. Under the former, it hears and rules on the
specific cases of human rights violations referred to it. Under the latter, it issues opinions on
matters of legal interpretation brought to its attention by other OAS bodies or member states.

The seven judges of the Court are independent, but are chosen by States through the
OAS General Assembly. Judges are elected for a six-year term, once renewable. The Court
and its judges convene several times per year for sessions lasting up to two weeks, but its
staff works year-round.

Currently, 23 OAS Member States are States parties to the American Convention on
Human Rights, and 20 have opted to accept the Court’s contentious jurisdiction in accordance
with Article 62 of the American Convention. The Court began operating in 1979, and soon
issued several advisory opinions, but did not begin exercising its contentious jurisdiction until
1986, when the Commission submitted the first contentious case: Velasquez Rodriguez v.
Honduras, regarding which the Court issued a judgment on the merits in 1988.

The Court's advisory function enables it to respond to consultations submitted by

OAS agencies and member states regarding the interpretation of the Convention or other
instruments governing human rights in the Americas; it also empowers it to give advice on
domestic laws and proposed legislation, and to clarify whether or not they are compatible
with the Convention's provisions. This advisory jurisdiction is available to all OAS member
states, not only those that have ratified the Convention and accepted the Court's adjudicatory
function. The Court's replies to these consultations are published separately from its
contentious judgments, as advisory opinions.

Over the Court’s first several decades in operation, its annual case load has more than
doubled; many more States have found themselves before the Court; and the Court has
adjudicated a significant range of rights protected by the American Convention and ancillary
agreements, from extrajudicial execution and forced disappearance cases, to labour, land, and
freedom of expression rights.

Q.No.10. State the important features of African Charter on Human and

People’s Rights

Charter on Human and People's Rights, also popularly known as Banjul Charter is a
regional treaty, was adopted on June 27, 1981 and entered into force in October 1986. A
Charter is the only treaty, which does not contain derogation clause. The reason has not been
published. African Charter despite having certain strong similarities to the covenants and the
European and American Conventions, it has notable differences too Not only civil, political,
economic and social rights, it also contains some of the new third generation rights. It is
argued that can this absence be interpreted in the sense that no right could be derogated from,
or could it mean that all rights can be derogated. This logical position has been adopted by
some African States.
 Due to the complex nature of the African Charter, no agreement was reached over the
inclusion of a derogation clause. Its absence however leaves the African charter in an
uncertain situation regarding derogations in emergencies. They constitute general
international law. It is clear that customary law impose international obligations in the area of
human rights treaties.

A special feature of the African Charter is that along with rights, it also lays down the
duty of the individuals. The African Charter enumerates the duties in detail laying greater
emphasis on the duties of the individuals. This is evident from the preamble of the African
Charter.
The African Charter on Human and People's Rights includes preamble, 3 parts, 4
chapters, and 63 articles. The Charter followed the footsteps of the European and Inter-
American systems by creating a regional human rights system for Africa. The Charter shares
many features with other regional instruments, but also has notable unique characteristics
concerning the norms it recognizes and also its supervisory mechanism.
The preamble commits to the elimination of Zionism, which it compares
with colonialism and apartheid, caused South Africa to qualify its 1996 accession with the
reservation that the Charter fall in line with the UN's resolutions "regarding the
characterization of Zionism."
Human Rights and Peoples Rights:
Chapter 1 of Part 1 of the African Charter contains the following rights:
Article 1: Obligations of Member States
Article 2: Right to Freedom from Discrimination
Article 3: Right to Equality before the Law and Equal Protection of the Law
Article 4: Right to Life
Article 5: Prohibition of Torture and Cruel, Inhuman and Degrading Treatment
Article 6: Right to Personal Liberty and Protection from Arbitrary Arrest
Article 7: Right to Fair Trial
Article 8: Right to Freedom of Conscience Egypt
Article 9: Right to Receive Information and Free Expression Egypt
Article 10: Right to Freedom of Association
Article 11: Right to Freedom of Assembly
Article 12: Right to Freedom of Movement
Article 13: Right to Participate in Government Zambia
Article 14: Right to Property
Article 15: Right to Work
Article 16: Right to Health
Article 17: Right to Education
Article 18: Protection of the Family and Vulnerable Groups Egypt
Article 19: Right of All Peoples to Equality and Rights
Article 20: Right to Self-Determination
Article 21: Right to Free Disposal of Wealth and Natural Resources
Article 22: Right to Economic, Social and Cultural Development
 Article 23: Right to National and International Security and Peace
Article 24: Right to a General Satisfactory Environment
Article 25: Duty to Promote Human Rights
Article 26: Duty to Guarantee Independence of Courts

Duties:

The Charter not only awards rights to individuals and peoples, but also
includes duties incumbent upon them. These duties are contained in Articles 27 to 29 and are
as follows:

 Duties towards family and society, the state and other legally recognised communities
and international community.
 Each individual to exercise the rights and freedoms with due regard to the rights of
others, collective security, morality and common interest.
 Duty to respect and consider his fellow beings without discrimination and to maintain
relations aimed at promoting safeguarding and reinforcing mutual respect and tolerance.
 The duty to preserve the harmonious development of the family.
 To serve the national community by placing both physical and intellectual abilities at its
service.
 Not to compromise the security of the State.
 To preserve and strengthen social and national solidarity.
 To preserve and strengthen national independence and the territorial integrity of one's
country and to contribute to its defence.
 To work to the best of one's abilities and competence and to pay taxes in the interest of
society.
 To preserve and strengthen positive African cultural values and in general to contribute to
the promotion of the moral well-being of society.
 To contribute to the best of one's abilities to the promotion and achievement of African
unity.

UNIT-IV

Q.No.11. what are the Human Rights guaranteed and protected under the Indian
Constitution.

India is the biggest democracy in the world. Being a democratic country one of the
main objectives is the protection of the basic rights of the people. Government of India has
given due consideration to the recognition and protection of human rights.

The Constitution of India was adopted on 26 November 1949, some provisions came
into force immediately and the remaining provisions of it came into force on 26 January
1950. India has a written Constitution and it is the fundamental law of the land. This would
suggest that all its creations such as Governments, its legislative, judicial and executive
organs and other institutions of the Government derive their powers from the Constitution
and they must adhere to the suprema lex. The Constitution has purposive existence and it is
not ephemeral in nature as it serves as a social, legal and moral document having legal
sanctity.

The Preamble of the Constitution sets out the important resolutions, promises and
declarations that the people have made for themselves. The important promises includes
securing to all citizens justice: social, economic and political, liberty of thought, expression,
belief, faith and worship, fraternity to be promoted among all while assuring the dignity of
the individual, unity and integrity of the nation, most of which are the broad concepts under
the Declaration. The principles laid out in Preamble have been realised through the
provisions, especially those contained in Parts III and IV of the Constitution.

The Constitution of India is a ‘transformative’ document. Provisions of it provide for

principles of administration, rights and limitation of State power. “They aim ‘to spark and
shape social and economic revolutions within India,” especially the Parts III and IV of the
Constitution, namely, the Fundamental Rights and the Directive Principles of State Policy,
comprise ‘the conscience of the Constitution.’ They allow for the simultaneous achievement
of ‘massive social and economic transformation’ and the preservation of individual liberties,
including the international human rights standards. The foundation for human rights
protection in India is its Constitution. With an intention to provide better protection to human
rights, the Government enacted a special legislation called the Protection of Human Rights
Act, 1993. Both of these are considered as national level protection-mechanisms for human
rights in India.

The philosophy and objective of the Constitution of India is enshrined in the preamble
which include the protection of the dignity of an individual. For the fulfillment of this
objective Part III of the constitution guarantees fundamental rights to people which are
essential for the development of an individual personality, these rights include right to
equality, the right to freedom, the right against exploitation, the right to freedom of religion,
cultural and educational rights and the right to constitutional remedies. It is the duty of the
central as well as state Governments to provide adequate conditions to each individual to
enjoy their human rights. The constitution through Directive Principles of State Policy
enshrined in the Part IV of the Constitution, ascertains the duties on the government to work
for the welfare of the people and protection of human rights of the people. These are guiding
principles for the state to make policies regarding distributive justice, right to work, right to
education, social security, just and humane conditions of work, for promotion of interest of
weaker section, raise the standard of nutrition and standard of living and to improve public
health, protection and improvement of environment and ecology etc. so that each individual
can enjoy rights to the fullest.

Classification of Human Rights under Indian Constitution:

 The Constitution of India recognizes these rights of the people and shows deep
concern towards them. The Universal Declaration of Human Rights contains civil, political,
economic, social and cultural rights. Constitution guarantees most of the human rights
contained in Universal Declaration of Human Rights. Part III of the constitution contains civil
and political rights, whereas economic, social and cultural rights have been included in Part
IV of the Constitution. All the statutes have to be in concurrence of the provisions of the
Constitution.

Comparative Chart of UDHR and Indian Constitution:

Civil and Political Rights in the Universal Declaration of Human Rights and in
the Indian Constitution
Constitutio
Article Declaration
n
Equality before law Article 7 Article 14
Prohibition of
Article 7 Article 15(1)
discrimination
Article
Equality of opportunity Article 16(1)
21(2)
Freedom of speech and Article
Article 19
expression 19(1)(a)
Freedom of peaceful Article Article
assembly 20(1) 19(1)(b)
Freedom to form Article Article
associations or unions 23(4) 19(1)(c)
Freedom of movement Article Article
within border 13(1) 19(1)(d)
Protection ion respect of Article
Article 20
conviction for offences 11(2)
Protection of life and
Article 3 Article 21
personal liberty
Protection of slavery and
Article 4 Article 23
forced labour
Freedom of conscience and
Article 18 Article 25(1)
religion
Remedy for enforcement of
Article 8 Article 32
rights

Right against arbitrary

Article 9 Article 22
arrest and detention
 Economic, Social and Cultural Rights in the Universal Declaration of Human
Rights and in the Indian Constitution
Article Declaration Constitution
Right to work, to
just and favourable Article 23(1) Article 41
condition of work
Right to equal pay
Article 23(2) Article 39(d)
for equal work
Article
Right to education Article 26(1)
21(a),41,45,51A(k)
Right to just and
Article 23(3) Article 43
favourable remuneration
Right to rest and
Article 24 Article 43
leisure
Right of everyone
to a standard of living
Article 25(1) Article 39(a), 47
adequate for him and
family
Right to proper
Article 28 Article 38
social order

Civil and Political Rights:

The Civil and Political Rights are enumerated in the Indian Constitution in Part-III,
Articles 14 to 35

Article 14. Equality before Law:

The state shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India.

Article 15. Prohibition of discrimination on the grounds of religion, race, caste, sex or place
of birth.
1. The state shall not discriminate against any citizen on grounds of religion, race, caste, sex,
and place of birth or any of them.
2. No citizen shall, on grounds of religion, race, caste, sex place of birth or any of them, be
subject to any disability, liability restriction or condition with regard to :
(a) Access to shops, public restaurants, hotels and places of public entertainment
(b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of state funds or dedicated to the use of general public.
3. Nothing in this article shall prevent the state from making any special provision for women
and children.

Article.16. Equality of opportunity in matters of public employment:

1. There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the state.
2. No citizen shall, on ground of religion, race, caste, sex, descent place of birth, residence or
any of them, be ineligible for, or discriminated against in respect of any employment or office
under the state.
3. Nothing in this article shall prevent parliament from making any law prescribing, in regard
to a class of employment or appointment to an office prior to such employment or
appointment.
4. Nothing in this article shall prevent the state from making any provision for the reservation
of appointments or posts in favour of any backward class of citizens which in the opinion of
the state is not adequately represented in the services under the state.
5. Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of governing body there of shall be a person professing a particular
religion or belonging to a particular denomination.

Article 17. Abolition of untouchability :

‘Untouchability’ is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of untouchability, shall be an offence punishable in
accordance with law. Untouchabilty is not only abolished but its practice is also forbidden
under Article17, and parliament has power to enact a law prescribing punishment for such
offences consequently, parliament passed the untouchability (offence) Act, 1955-1976. If a
person belonging to a higher class, insults a person belonging to a lower class, or refuses
service to him or refuses to admit him to a temple, then such a person is guilty of violating
Article 17, and can be punished under the untouchabilily (offences) Act 1955.

Article 18. Abolition of Titles:

1. No title, not being a military or academic distinction shall be conferred by the state.
2. No citizen of India shall accept any title from any foreign state.
3. No person who is not a citizen of India shall, while he holds any office of profit or trust
under the state, accept without the consent of the President any title from any foreign state.
4. No person holding any office of profit or trust under the state shall, without the consent of
the President, accept any present, emolument, or office of any kind from or under any foreign
state

Article 19.It contains rights regarding freedom of speech etc.

All citizens shall have the right
i) To freedom of speech and expression.
ii) To assemble peacefully without arms.
iii) To form associations or unions.
iv) To move freely through out the territory of India.
v) To reside and settle in any part of the territory of India.
vi) To practice any profession, or to carry on any occupation, trade or business.
 Thus Article 19 guarantees six fundamental freedoms like freedom of speech and
expression, freedom of peaceful assembly, freedom of association, freedom of movement,
and freedom of residence and practices any profession.

Article 20. Protection in respect of conviction for offence.

1. No person shall be convicted of any offence except for violation of law in force at the time
of the commission of the act as an offence.
2. No person shall be prosecuted and punished for the same offence more than once.
3. No person accused of any offence shall be compelled to be a witness against himself.

Article 21. Protection of life and personal liberty:

No person shall be deprived of his life or personal liberty except according to
procedure established by law.

Article 22. Protection against arrest and detention in certain cases.

Article 23. Prohibition of traffic in human beings and forced labour:

1. Traffic in human beings and bagger and other similar forms of forced labour are prohibited
and any contravention of this provision shall be an offence punishable in accordance with
law.
2. Nothing in this article shall prevent the state from imposing compulsory service for public
purpose and imposing such service the state shall not make any discrimination on grounds of
religion, race, caste or class or any of them.

Article 24. It prohibits the employment of children in factories. No child below the age of
fourteen years shall be employed to work in any factory or mine or engaged in any other
hazardous employment.

Article 25.It indicates freedom of conscience and free of profession, practice and
propagation of religion. Subject to public order morality health and to other provisions of this
part, all persons are equally entitled to freedom of conscience and the right freely to profess
practice and propagate religion.

Article 26. Freedom to manage religious affairs: Subject to public order, morality and health,
every religious domination nor any section there of shall have the right-
(a) To establish and maintain institutions for religious and charitable purpose.
(b) To manage its own affairs in matters of religion.
(c) To own and acquire movable and immovable property
(d) To administer such property in accordance with law.

Article 27. Freedom as to payment of taxes for promotion of any particular religion.
No person shall be compelled to pay any proceeds of which are especially appropriated in
payments of expenses for the promotion or maintenance of any particular religion or religious
denomination.

Article 28. Freedom as to attendance at religious instruction or religious worship in certain

educational institutions.

Article 29. Protection of Interests of minorities:

1. Any section of the citizens residing in the territory of India or any part there of having a
distinct language, script or culture of its own shall have the right to conserve the same.
2. No citizen shall be denied admission into any educational institution maintained by the
state or receiving aid out of state funds on grounds of religion, race, caste, language, or any of
them.

Article 30. Rights of minorities to establish and administer educational institutions.

Article 31. Saving of laws providing for acquisition of estates etc.

Article 32. Remedies for enforcement of rights conferred by this part.

Article 33. Power of Parliament to modify the rights conferred by this part in their
application to forces etc.

Article 34. Restriction on rights conferred by this part while martial law is in force in any
area.

Article 35. It deals with Legislation to give effect to the provisions of this part.

 Economic, Social and Cultural Rights

Economic, Social and Cultural Rights have been included in Part IV (Directive
Principles of State Policy) from Articles 37 to 51 of the Constitution. The Directive
Principles embodies in Article 37-51 are a ‘complex of values’ which aim at the
establishment of a ‘welfare state’ as distinguished from a police state. Directive Principles of
state policy are enshrined in part IV of the Constitution. The Directive Principles aims at the
betterment of the individuals as an integrated component of the society.

Article 37. It deals with the application of the principles contained in this part. The provision
contained in this part shall not be enforceable by any court; it shall be the duty of the state to
apply these principles in making laws.

Article 38. State to secure a social order for the promotion of welfare of the people.
Article 39.
Certain principles policy to be followed by the state- The state shall in particular, direct its
policy towards securing, the right to an adequate means to livelihood, equal pay for equal
work for both men and women, health and strength of workers, men and women and tender
age of children are not abused and that citizens are not forced by economic necessity to enter
avocation unsuited to their age or strength and children are given opportunities and facilities
to develop in a healthy manner and in conditions of freedom and dignity and that childhood
and youth are protected against exploitation and against moral and material abandonment.88

Article39-A. It provides equal justice and free legal aid.

Article 40. Provides to organize village Panchayats .

Article 41. Right to work, to education and to public assistance in certain

cases.

Article 42. Provision for just and humane conditions of work and
maternity relief.

Article 43. Living wage etc. for workers.

The aim of the state is also social security in cases of old age, sickness and disablement and
ensuring decent standards of life, which is the basic Human Rights of all.
Q.No.12. Explain the Writs available under the Constitution of India for the protection
of Human Rights

Article 226 provides that notwithstanding anything in Article 32 every high court shall have
power, throughout the territorial limits in relation to which it exercises jurisdiction to issue to
any person or authority including the appropriate cases, any Government, within those
territories, directions, orders, and writs including writs in the nature of Habeaus Corpus,
Mandamus, prohibition, quo warranto and certiorari or any of them.

a. For the enforcement of fundamental rights conferred by Part III and

b. For any other purpose.

44th Amendment Act 1978 amended Article 226 and added a new clause (3) for regulating the
procedure regarding the power of the High Courts to issue interim orders-

WRITS

1. HABEAS CORPUS

Is a Latin term which literally means “you may have the body”. The writ is issued in form of
an order calling upon a person by whom another person is detained to bring that person
before the court and to let the court know by what authority he has detained that person.

It the cause shown discloses that detained person has been detained illegally the court will
order that he be released thus the main object of the writ is to give quick and immediate
remedy to a person who is unlawfully detained by the person whether in prison or private
custody.

In KanuSanyal V. District Magistrate, Darjeeling (AIR 1974 SC 510)

In this case a terrorist was arrested and detained in Vishakapatanam prison. The Terrorist
approached Supreme court for writ under Article 32 of the constitution challenging the
legality of his detention and to produce him before the court.

In this case it was held that producing the person who is detained before the court for hearing
and deposing writ-petition is not mandatory.

Who can apply for it-

According to General Rule is that an application can be made by a person who is illegally
detained. But in certain cases, an application can be made by an person on behalf of the
prisoner like a friend, or a relative etc.

When it will lie:-

The writ will lie if the power of detention vested in an authority was exercised malafide and
is made in collateral or ulterior purposes.

But if the detention is lawful the court will not allow the writ.
The detention becomes unlawful if a person who is arrested is not produced before the
Magistrate within 24 hours of his arrest and he will be entitled to be released on the writ of
habeas corpus.

2. MANDAMUS

The word Mandamus means the order. This writ is thus an order by a superior court
commanding a person or a public authority (including the Government and public
corporation) to do or forbear to do something in the nature of public duty or in certain cases
of a statutory duty.

When it will lie:- under 2 conditions

1. It will be issued when there is a failure to perform a mandatory duty upon an public
authority. It can be enforced only on a public duty and not on private duty.
2. It can also be issued to public authority to restrain it from acting under a law which
has been declared unconstitutional.

When it will no lie:-

1. When the duty is only discretionary in nature.

2. It will not lie against a private individual
3. Cannot be granted to enforce an obligation arising out of contract.

3. PROHIBITION

This writ is issued to prevent an inferior court or tribunal from exceeding its jurisdiction
or acting contrary to the rules of natural justice.

It is issued by a superior court to inferior courts for the purpose of preventing inferior
courts to keep within the limits of their jurisdiction.

Writ can be issued in both cases where there is excess of jurisdiction and where there is
absence of jurisdiction.

4. CERTIORARI

A writ of certiorari is issued by a Superior court (Supreme Court and High Court) to an
inferior court or body exercising judicial or quasi-judicial functions to remove a suit from
such inferior court or body and adjudicate upon the validity of the proceedings or body
exercising judicial or quasi-judicial functions.

It may be used before the trial to prevent an excess or abuse of jurisdiction and remove
the case for trail to higher court.

It is invoked also after trial to quash an order which has been made without jurisdiction or
in violation of the rules of natural justice.

IN PROVINCE OF BOMBAY V. KHUSHALDAS (AIR 1950 SC 22)

 Whenever any body of persons having legal authority to determine questions affecting the
rights of subject and having the duty to act judicially acts in excess of their legal authority
a writ of certiorari lies.

This writ lies on judicial body:

This writ can availed of only to remove or to adjudicate upon the validity of judicial acts.

Judicial acts includes the exercise of quasi-judicial functions by administrative bodies.

The Supreme court has laid down two propositions for ascertaining whether an authority
is to act judicially;

1. If a statute empowers an authority to decide disputes arising out of a claim made by

one party under the statute which claim is opposed by another party.
2. If a statutory authority has power to do any act which will prejudicially affect the
subject.

Grounds on which writ can be issued-

a. Where there is want or excess of jurisdiction.

b. Where there is violation of procedure or disregards of principles of natural justice.
c. Where there is error of law apparent on the face of the record but not error of a fact.

When it will not lie-

The writ cannot be issued against a private body.

5. QUO WARRANTO:-

The words means “what is your authority”

A holder of an office is called upon to show to the court under what authority he holds the
office.

The object of the writ is to prevent a person to hold an office which he is not legally entitled
to hold.

Under the inquiry leads to the findings that the holder of the office has no valid title to it, the
court may pass an order preventing the holder to continue in office and may also declare the
office vacant.

Who can apply?

This writ can be claimed by a person if he satisfies the court that:-

1. The office in question is a public office.

2. It is held by a person without legal authority.

Conclusion:-
Hence the above writs can be availed to protect the rights of the people. Under Article 32 and
226 the Hon’ble Supreme court of India and High courts have powers to grant this writs
respectively.

Q.No.13.Discuss the constitution, powers and functions of National Human Rights

commission. The National Human Rights Commission (NHRC) of India is a Statutory
public body constituted on 12 October 1993 under the Protection of Human Rights Ordinance
of 28 September 1993. It was given a statutory basis by the Protection of Human Rights Act,
1993 (PHRA). The NHRC is the National Human Rights Commission of India, responsible
for the protection and promotion of human rights, Chapter II to IV of the Act deals with the
National Human Rights Commission. Main provisions relating to it are as follows:-

Constitution of National Human Rights Commission. (Sec. 3) . —

(1) The Central Government shall constitute a body to be known as the National Human
Rights Commission to exercise the powers conferred upon, and to perform the functions
assigned to, it under this Act.

(2) The Commission shall consist of—

(a) a Chairperson who has been a Chief Justice of the Supreme Court;

(b) one Member who is, or has been, a Judge of the Supreme Court;

(c) one Member who is, or has been, the Chief Justice of a High Court;

(d) two Members to be appointed from amongst persons having knowledge of, or practical
experience in, matters relating to human rights.

(3) The Chairpersons of the National Commission for Minorities, 1 [the National
Commission for the Scheduled Castes, the National Commission for the Scheduled Tribes]
and the National Commission for Women shall be deemed to be Members of the Commission
for the discharge of functions specified in clauses (b) to (j) of section 12.

(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the
Commission and shall exercise such powers and discharge such functions of the Commission
2 [(except judicial functions and the power to make regulations under section 40B) as may be
delegated to him by the Commission or the Chairperson, as the case may be].

(5) The headquarters of the Commission shall be at Delhi and the Commission may, with the
previous approval of the Central Government, establish offices at other places in India.

Functions and Powers of the Commission

Sec.12. Functions of the Commission.—The Commission shall perform all or any of the
following functions, namely:—

(a) inquire, suo moto or on a petition presented to it by a victim or any person on his behalf 3
[or on a direction or order of any court], into complaint of—
(i) violation of human rights or abetment thereof; or

(ii) negligence in the prevention of such violation, by a public servant;

(b) intervene in any proceeding involving any allegation of violation of human rights pending
before a court with the approval of such court; 4

(c) visit, notwithstanding anything contained in any other law for the time being in force, any
jail or other institution under the control of the State Government, where persons are detained
or lodged for purposes of treatment, reformation or protection, for the study of the living
conditions of the inmates thereof and make recommendations thereon to the Government;]

(d) review the safeguards provided by or under the Constitution or any law for the time being
in force for the protection of human rights and recommend measures for their effective
implementation;

(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights
and recommend appropriate remedial measures;

(f) study treaties and other international instruments on human rights and make
recommendations for their effective implementation;

(g) undertake and promote research in the field of human rights;

(h) spread human rights literacy among various sections of society and promote awareness of
the safeguards available for the protection of these rights through publications, the media,
seminars and other available means;

(i) encourage the efforts of non-governmental organisations and institutions working in the
field of human rights;

(j) such other functions as it may consider necessary for the promotion of human rights.

UNIT-V

Q.No.15. Discuss in detail the various rights of women and state the implementation
procedure made under CEDAW.

Women constitute almost half of the world population. However, their enjoyment of
rights equally with that of men is far from satisfactory. In every society from ancient to
modern times, women are considered as the property of men to serve their interests in both
society and domestic front. In order to halt such practices, the UN and the international
community have evolved a number of methods to augment the rights of women on par with
men without any kind of discrimination. The efforts of the international community and the
government of India are discussed in two separate heads in brief.

The Convention on the Elimination of All Forms of Discrimination against Women

(popularly referred to as CEDAW Convention) 1979
The Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW) is an international treaty adopted in 1979 by the United Nations General
Assembly. Described as an international bill of rights for women, it was instituted on 3
September 1981 and has been ratified by 189 states. The convention has a preamble and 30
articles. It defines acts that constitute as discrimination and specifies the strategies to the
national governments to adopt policies to eliminate such discrimination against women.

According to the Convention, discrimination against women as "...any distinction,

exclusion or restriction made on the basis of sex which has the effect or purpose of impairing
or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any other field." (Article 1)

The Convention has a similar format to the Convention on the Elimination of All Forms
of Racial Discrimination, "both with regard to the scope of its substantive obligations and its
international monitoring mechanisms". The Convention is structured in six parts with 30
articles total.

 Part I (Articles 1-6) focuses on non-discrimination, sex stereotypes, and sex trafficking.
 Part II (Articles 7-9) outlines women's rights in the public sphere with an emphasis on
political life, representation, and rights to nationality.
 Part III (Articles 10-14) describes the economic and social rights of women, particularly
focusing on education, employment, and health. Part III also includes special protections
for rural women and the problems they face.
 Part IV (Article 15 and 16) outlines women's right to equality in marriage and family life
along with the right to equality before the law.
 Part V (Articles 17-22) establishes the Committee on the Elimination of Discrimination
against Women as well as the states parties' reporting procedure.
 Part VI (Articles 23-30) describes the effects of the Convention on other treaties, the
commitment of the states parties and the administration of the Convention.

Obligations on the State Parties:

(i). Article 3
States Parties shall take in all fields, in particular in the political, social, economic and
cultural fields, all appropriate measures, including legislation, to en sure the full development
and advancement of women , for the purpose of guaranteeing them the exercise and
enjoyment of human rights and fundamental freedoms on a basis of equality with men.

(ii). Article 4
1. Adoption by States Parties of temporary special measures aimed at accelerating de facto
equality between men and women shall not be considered discrimination as defined in the
present Convention, but shall in no way entail as a consequence the maintenance of unequal
or separate standards; these measures shall be discontinued when the objectives of equality of
opportunity and treatment have been achieved.
2. Adoption by States Parties of special measures, including those measures contained in the
present Convention, aimed at protecting maternity shall not be considered discriminatory.

(iii). Article 5 States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices which are based
on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles
for men and women;
(b) To ensure that family education includes a proper understanding of maternity as a social
function and the recognition of the common responsibility of men and women in the
upbringing and development of their children, it being understood that the interest of the
children is the primordial consideration in all cases.

(iv). Article 6
States Parties shall take all appropriate measures, including legislation, to suppress all
forms of traffic in women and exploitation of prostitution of women.

(v). Article 7
States Parties shall take all appropriate measures to eliminate discrimination against
women in the political and public life of the country and, in particular, shall ensure to
women, on equal terms with men, the right:
(a) To vote in all elections and public referenda and to be eligible for election to all publicly
elected bodies;
(b) To participate in the formulation of government policy and the implementation thereof
and to hold public office and perform all public functions at all levels of government;
(c) To participate in non-governmental organizations and associations concerned with the
public and political life of the country.

(vi). Article 8
States Parties shall take all appropriate measures to ensure to women, on equal terms
with men and without any discrimination, the opportunity to represent their Governments at
the international level and to participate in the work of international organizations.

(vi). Article 9
1. States Parties shall grant women equal rights with men to acquire, change or retain their
nationality. They shall ensure in particular that neither marriage to an alien nor change of
nationality by the husband during marriage shall automatically change the nationality of the
wife, render her stateless or force upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with respect to the nationality of
their children.
(vii). Article 10, 11, 12, 13
 State parties have undertaken to take all appropriate measures to eliminate
discrimination against women in order to ensure to them equal rights with men in the fields of
education, employment, health care, and in other areas of economic and social life.

(viii). Article 14: Problems of Rural Women

1. States Parties shall take into account the particular problems faced by rural women and the
significant roles which rural women play in the economic survival of their families, including
their work in the non-monetized sectors of the economy, and shall take all appropriate
measures to ensure the application of the provisions of the present Convention to women in
rural areas.
2. States Parties shall take all appropriate measures to eliminate discrimination against
women in rural areas in order to ensure, on a basis of equality of men and women, that they
participate in and benefit from rural development and, in particular, shall ensure to such
women the right:
(a) To participate in the elaboration and implementation of development planning at all
levels;
(b) To have access to adequate health care facilities, including information, counselling and
services in family planning;
(c) To benefit directly from social security programmes;
(d) To obtain all types of training and education, formal and non-formal, including that
relating to functional literacy, as well as, inter alia, the benefit of all community and
extension services, in order to increase their technical proficiency;
(e) To organize self-help groups and co-operatives in order to obtain equal access to
economic opportunities through employment or self employment;
(f) To participate in all community activities;
(g) To have access to agricultural credit and loans, marketing facilities, appropriate
technology and equal treatment in land and agrarian reform as well as in land resettlement
schemes;
(h) To enjoy adequate living conditions, particularly in relation to housing, sanitation,
electricity and water supply, transport and communications.

(ix). Article 15
Sate parties shall accord to women equality with men and women before the law.

(x) Article 16
1. States Parties shall take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations and in particular shall ensure,
on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free
and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in
matters relating to their children; in all cases the interests of the children shall be paramount;
 (e) The same rights to decide freely and responsibly on the number and spacing of their
children and to have access to the information, education and means to enable them to
exercise these rights;
(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and
adoption of children, or similar institutions where these concepts exist in national legislation;
in all cases the interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to choose a family
name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership, acquisition, management,
administration, enjoyment and disposition of property, whether free of charge or for a
valuable consideration.
2. The betrothal and the marriage of a child shall have no legal effect, and all necessary
action, including legislation, shall be taken to specify a minimum age for marriage and to
make the registration of marriages in an official registry compulsory.

Implementation of the Convention

The Convention provides for the establishment of a committee as Elimination of
Discrimination Against Women.

Article 17
1. For the purpose of considering the progress made in the implementation of the present
Convention, there shall be established a Committee on the Elimination of Discrimination
against Women (hereinafter referred to as the Committee) consisting, at the time of entry into
force of the Convention, of eighteen and, after ratification of or accession to the Convention
by the thirty-fifth State Party, of twenty-three experts of high moral standing and competence
in the field covered by the Convention. The experts shall be elected by States Parties from
among their nationals and shall serve in their personal capacity, consideration being given to
equitable geographical distribution and to the representation of the different forms of
civilization as well as the principal legal systems.
2. The members of the Committee shall be elected by secret ballot from a list of persons
nominated by States Parties. Each State Party may nominate one person from among its own
nationals.
3. The initial election shall be held six months after the date of the entry into force of the
present Convention. At least three months before the date of each election the Secretary-
General of the United Nations shall address a letter to the States Parties inviting them to
submit their nominations within two months. The Secretary-General shall prepare a list in
alphabetical order of all persons thus nominated, indicating the States Parties which have
nominated them, and shall submit it to the States Parties.
4. Elections of the members of the Committee shall be held at a meeting of States Parties
convened by the Secretary-General at United Nations Headquarters. At that meeting, for
which two thirds of the States Parties shall constitute a quorum, the persons elected to the
Committee shall be those nominees who obtain the largest number of votes and an absolute
majority of the votes of the representatives of States Parties present and voting.
5. The members of the Committee shall be elected for a term of four years. However, the
terms of nine of the members elected at the first election shall expire at the end of two years;
immediately after the first election the names of these nine members shall be chosen by lot by
the Chairman of the Committee.
6. The election of the five additional members of the Committee shall be held in accordance
with the provisions of paragraphs 2, 3 and 4 of this article, following the thirty-fifth
ratification or accession. The terms of two of the additional members elected on this occasion
shall expire at the end of two years, the names of these two members having been chosen by
lot by the Chairman of the Committee.
7. For the filling of casual vacancies, the State Party whose expert has ceased to function as a
member of the Committee shall appoint another expert from among its nationals, subject to
the approval of the Committee.
8. The members of the Committee shall, with the approval of the General Assembly, receive
emoluments from United Nations resources on such terms and conditions as the Assembly
may decide, having regard to the importance of the Committee's responsibilities.
9. The Secretary-General of the United Nations shall provide the necessary staff and facilities
for the effective performance of the functions of the Committee under the present
Convention.

Q.No.16. Explain the rights of the child guaranteed under the Convention on the Rights
of the Child.

The United Nations considering the number of abuses that are alarmingly raising all
over the world in the protection and promotion of children’s rights adopted a legally binding
convention directly addressing the children rights as human rights. The UN General
Assembly adopted the Convention and opened it for signature on 20 November 1989 (the
30th anniversary of its Declaration of the Rights of the Child). It came into force on 2
September 1990, after it was ratified by the required number of nations. Currently, 196
countries are party to it, including every member of the United Nations except the United
States
Two optional protocols were adopted on 25 May 2000. The First Optional
Protocol restricts the involvement of children in military conflicts, and the Second Optional
Protocol prohibits the sale of children, child prostitution and child pornography. Both
protocols have been ratified by more than 170 states. A third optional protocol relating to
communication of complaints was adopted in December 2011 and opened for signature on 28
February 2012. It came into effect on 14 April 2014.
The objective behind the Convention is, children being human; their rights too
constitute as human rights. As human rights, children rights legally guarantee their rights
internationally and to halt all kinds of discriminatory abusive practices that are adopted
against their life and liberty. Apart from the civil, political, economic, social, cultural rights,
they have independent rights to live with parents and to be taken care during their childhood.
Further, they guarantee the group rights, such as rights of refugees, minority children, and as
disabled.

The Convention is the first legally binding comprehensive document addressing all
the rights of children, imposing binding obligations on the States to adopt and implement the
 Provisions of it. The Convention has 54 articles and is divided into 3 parts. The fifty-four
articles of the convention apart from guaranteeing all the rights of children also provided for
the establishment of an International Commission on Child Rights to monitor and to seek
reports from the states parties on the various aspects of the implementation of the provisions
of it.

Rights of the Child:

A number of rights have been stipulated in the Convention which includes the
following:

1. Right to Life (Art.6)

2. Right to acquire nationality (Art.7)
3. Right to Freedom of Expression (Art.13)
4. Right to freedom of thought, conscience and religion (Art.14)
5. Right to freedom of association and to freedom of peaceful assembly (Art.15)
6. Right to Privacy (Art.16)
7. Right to family environment (Art. 20)
8. Right to education (Art. 28)
9. Right to benefit from social security (Art.26)
10. Right to a standard of living adequate for the child’s physical, mental, spiritual and
social development (Art. 27)
11. Right to the enjoyment of the highest attainable standards of health and to facilities
for the treatment of illness and rehabilitation of health. (Art. 24)
12. Right to the protection of the law against arbitrary or unlawful interference with his or
her privacy, family. Home or correspondence (Art.16)
13. Right against exploitation of child labour (Art.32)
14. Right against sexual exploitation (Art.34)
15. Right against abduction, sale or traffic (Art.35)
16. Right against other forms of exploitation prejudicial to any aspect of the child’s
welfare.

IMPORTANT QUESTIONS FOR SHORT NOTES:

1. Rights of Aged Persons
Elderly persons face a number of problems. These include, among others, physical
and financial security, abuse, neglect etc. Human rights belong to every person whether that
person is old or young and regardless of other distinctions.

It has conducted World Conference on aged people to address the rights of theirs. Among
them Second Global Conference conducted in the year 2002 at Madrid adopted a Plan of
Action with three important Priority areas to rights relating to Older people. These areas are :

(a) Older Persons and Development;

(b) Advancing health and well-being into old age; and
(c) Ensuring enabling and supportive environments.
Principles for Older Persons:

The U.N. General Assembly on December 16, 1991 adopted 18 principles, which are
organized into five clusters, namely-independence, participation, care, self fulfilment, and
dignity of the older persons.

Independence
1. Older persons should have access to adequate food, water, shelter, clothing and health care
through the provision of income, family and community support and self-help.
2. Older persons should have the opportunity to work or to have access to other income-
generating opportunities.
3. Older persons should be able to participate in determining when and at what pace
withdrawal from the labour force takes place.
4. Older persons should have access to appropriate educational and training programmes.
5. Older persons should be able to live in environments that are safe and adaptable to
personal preferences and changing capacities.
6. Older persons should be able to reside at home for as long as possible.
Participation
7. Older persons should remain integrated in society, participate actively in the formulation
and implementation of policies that directly affect their well-being and share their knowledge
and skills with younger generations.
8. Older persons should be able to seek and develop opportunities for service to the
community and to serve as volunteers in positions appropriate to their interests and
capabilities.
9. Older persons should be able to form movements or associations of older persons.
Care
10. Older persons should benefit from family and community care and protection in
accordance with each society's system of cultural values.
11. Older persons should have access to health care to help them to maintain or regain the
optimum level of physical, mental and emotional well-being and to prevent or delay the onset
of illness.
12. Older persons should have access to social and legal services to enhance their autonomy,
protection and care.
13. Older persons should be able to utilize appropriate levels of institutional care providing
protection, rehabilitation and social and mental stimulation in a humane and secure
environment.
14. Older persons should be able to enjoy human rights and fundamental freedoms when
residing in any shelter, care or treatment facility, including full respect for their dignity,
beliefs, needs and privacy and for the right to make decisions about their care and the quality
of their lives.
Self-fulfilment
15. Older persons should be able to pursue opportunities for the full development of their
potential.
16. Older persons should have access to the educational, cultural, spiritual and recreational
resources of society.
Dignity
17. Older persons should be able to live in dignity and security and be free of exploitation and
physical or mental abuse.
18. Older persons should be treated fairly regardless of age, gender, racial or ethnic
background, disability or other status, and be valued independently of their economic
contribution.
2. United Nations high Commissioner for Human Rights
The United Nations High Commissioner for Human Rights, accountable to the Secretary-
General, is responsible for all the activities of the OHCHR, as well as for its
administration, and carries out the functions specifically assigned to him or her by the UN
General Assembly in its resolution 48/141 of 20 December 1993 and subsequent
resolutions of policy-making bodies. It advises the Secretary-General on the policies of the
United Nations in the area of human rights, ensures that substantive and administrative
support is given to the projects, activities, organs and bodies of the human rights program,
represents the Secretary-General at meetings of human rights organs and at other human
rights events, and carries out special assignments as decided by the Secretary-General. As
well as those human rights that are currently included in legally binding treaties, the High
Commissioner also promotes human rights yet to be recognized in international law (such
as the adoption of economic, social and cultural rights as a strategic priority, which are not
all currently recognized in international legal instruments).

3. Different kinds of Human Rights.

Kinds of Human rights are based on various principle elements which are emphasized in the
theory of human rights. It is necessary to consider in greater detail, the classification of
human rights on 2 basis:- in terms of content and time of occurrence.
A. On time of occurrence.
1. The first generation of rights (end of 18th Century civil and political rights.
i. Right to Life &Liberity
ii. Freedom of speech and Expression.
2. The Second generation (middle of 20th Century economic, social and cultural rights)
i. Right to Education
 ii. Right to work
iii. Right to food, housing
3. The Third Generation (1970’s)
Group or Collective rights
i. Right to Development
ii. Environmental related Rights.
B. On areas of Public Relation
1. Civil
2. Political
3. Economic
4. Social and
5. Cultural

CLASSIFICATION OR KINDS OF RIGHTS

A. On time of occurrence. B. On areas of Public Relation

1. The first generation of rights (end of 1. Civil

18th Century civil and political rights. 2. Political
i. Right to Life & Liberty 3. Economic
ii. Freedom of speech and Expression 4. Social and
5. Cultural

2. The Second generation (middle of 20th

Century economic, social and cultural
rights)
i. Right to Education
ii. Right to work
iii. Right to food, housing

3. The Third Generation (1970’s)

Group or Collective rights
1. Right to Development
2. Environmental related Rights

FIRST GENERATION OF HUMAN RIGHTS

Civil and Political Rights are related to the first generation rights. They rose from European
and American philosophy and the political-legal practice of the 18th Century.
The first generation is the oldest generation of universal human rights. The right to personal
immunity, right to private life protection, the freedom of speech and freedom of religion etc
were listed in the group of personal rights. The political ones are: the right to suffrage and to
be related, the right to state administration etc.
These are the rights that had developed in course of a very long period of time since the time
of greek city states.
The different kinds of Human rights are as follows,

NATURAL RIGHTS AND CIVIL RIGHTS

Human rights traditionally have been put in two categories, natural rights and civil rights.

Natural rights are those that belong to individuals by virtue of their humanity; the
right to remain alive, to sustain life with food and shelter and follow the dictates of their
conscience.

Civil rights are the rights which an individual possesses which are protected by
government, and which may not be impaired by the government ex. Freedom of speech,
freedom of press, freedom of religion and freedom of assembly.

POSITIVE AND NEGATIVE RIGHTS

Human rights may be classified as positive rights and negative rights.

Negative rights: Civil and political rights are often regarded as negative rights which
do not require the infusion or resource for their realization. For instance, when it comes to
rights like the right to life, the right to be free from torture and other civil and political rights,
it is stated that all that the state has to do is not to interfere with them.

POSITIVE RIGHTS: Economic, social, and cultural rights like right to education,
health and work are regarded as positive rights which require the state to take legislative,
executive, judicial and other measures to ensure their realization.

4. Rights of Differently abled (Disabled Persons)

Over 650 million persons around the world live with disabilities. Adding to that their
extended families, and a staggering two billion people daily live with disabilities. In
every region, and in every country in the world, persons with disabilities often live on
the margins of society, deprived of some of life’s fundamental experiences. They have
little hope of going to school, securing a job, having their own home, creating a
family and raising their children, enjoying a social life etc. For the vast majority of the
world’s persons with disabilities, shops, public facilities and transport, and even
information are largely out of reach. Disability is associated with illiteracy, poor
nutrition, lack of access to clean water, low rates of immunization against diseases,
and unhealthy and dangerous working conditions.
In order to augment the rights of disabled persons, the United Nations adopted a
Convention and a Protocol in 2006 and established a special agency called as UN Enable,
which works in close coordination with various organs of the UN. The Convention intends to
be a human rights instrument with explicit, social development dimension. It adopts a broad
categorization of persons with disabilities and reaffirms that all persons with different types
of disabilities must enjoy all human rights and fundamental freedoms.
77 According to the UN Convention on the Rights of Persons with Disabilities (CPRD),
2006 disability arises from an interaction between a non-inclusive society and individuals:
 Person using a wheelchair might have difficulties gaining employment, not because of
the wheelchair, but because there are manmade environmental barriers; such as
unfavourable transportation, or other such inhospitable facilities to exercise their
rights freely.
 Persons with extreme near-sightedness who do not have access to corrective lenses
may not be able to perform daily tasks. This same person with prescription eyeglasses
would be able to perform all tasks without problems.

The Preamble of CRPD states: ‘Disability is an evolving concept, and that disability results
from the interaction between persons with impairments and attitudinal and environmental
barriers that hinders full and effective participation in society on an equal basis with others’.
Article 1 of the Convention states: ‘Persons with disabilities include those who have
long-term physical, mental, intellectual or sensory impairments which in interaction with
various barriers may hinder their full and effective participation in society on an equal basis
with others’.
Persons with disabilities need not be viewed as "objects" of charity. They need to be
considered as "subjects" with rights. Further, they need to be provided with equal
opportunities in order to enable them to take decisions on their own and to exercise their
rights freely on par with the other members of society.

The UN adopted a set guiding principles that need to be followed and adopted by
every state and society in order to foster respect for the human rights of the disabled.
They are:
 Full and effective participation and inclusion of the Disable into the various activities
of the society;
 To Foster Respect for their Dignity and autonomy;
 To provide equal opportunities on par with other sections of the society
 To extend Equality between men and Women of the disabled without any further
discrimination on grounds of sex
 To provide Accessibility in all respects equally with other persons of the state Respect
for difference of their human diversity
 Non-discrimination on any ground

5. Human Rights and Article 2 (7) of U.N. Charter.

 one of the problems that arise in the implementation of the human rights programme
is the question of domestic jurisdiction. This is because of Article 2(7) of the U.N.
Charter which prohibits the U.N. “to intervene in matters which are essentially within
the domestic jurisdiction of any state” nor the U.N. “shall require the members to
submit such matters to settlement under the present Charter”. In any case, the question
 of domestic jurisdiction does not arise in the case of implementation of the provisions
of the human rights covenants. Human Rights and Fundamental Freedoms, having
become the subject of a solemn international obligation and a fundamental purpose of
the Charter are not any longer a matter which is essentially within domestic
jurisdiction of the members of the United Nations.
 U.N. Bodies Primarily Concerned with Human Rights: followings are the U.N.
bodies mainly concerned with human rights:
vii. Human Rights Council
viii. Sub-Commission on Prevention of Discrimination and Protection of
Minorities
ix. Commission on the status of women
x. U.N. Commission for Human Rights
xi. U.N. Centre for Human Rights
xii. Other U.N. Bodies primarily concerned with human rights.

6. Rights of Minorities

Human rights being the inalienable rights of humanity, need protection at all times either
by the state or by international comity. However, many a times, among the various vulnerable
groups, minority’s rights are not given due respect and relegated to secondary position. The
International and national scenario is subtly examined.
All those people who do not form part of majority population of a country could be
classified as national minorities. The classification may be based on religion, ethnicity,
language or any other factors.
The United Nations adopted a number of declarations to protect rights and appointed
several commissions to augment the rights of these people. It adopted a specific declaration
on 18th December in 1992. According to the declaration, it is the duty of every state to
protect the Ethnic, Cultural, Religious, and Linguistic minority rights without any deviance at
all times. Until date there is no specific convention adopted dealing with the rights of these
people.

Declaration on Rights of Persons, Belonging to National or Ethnic, Religious and

Linguistic Minorities 1992.
The Declaration contains nine provisions. According to Article 2 of the Declaration, in
general, minorities possess the following rights:
 To enjoy their own culture, to profess and practice their own religion, and to use their
own language, in private and public freely without any discrimination and
interference by the state or any group;
 To participate effectively, cultural, religious, social, economic and public life;
 To Participate in the decision making process of the State effectively especially any
act or acts which affect them either directly or indirectly;
 To establish and to maintain institutions of their own; and
 To establish contacts freely with in themselves and other groups of minorities within and
outside the State. Since the Declaration is not a binding legal instrument, the UN High
Commission on Human Rights requested the UN High Commissioner on Human Rights to
appoint an independent expert to submit frequent reports on the situation in extending
protection to the rights of the minorities. The High Commissioner, taking into consideration
of the request of the Commission on July 29, 2005 appointed Ms. Gay Mcdou Gall of USAas
the first independent expert to submit reports on various aspects relating to the protection of
rights of minorities across the globe. Individuals also can submit requests or reports and bring
in any aspect relating to the rights of the minorities.
It is true that most countries in the world have minorities among their population. It is
also true that the experience of the minorities varies depending on their socio, economic,
political, legal, and cultural experiences. However, the problems faced by them are mostly
common to all. For example, the Sexual Minorities rights of lesbians, gays, transgender (third
sex) and homosexuals are yet to be recognised by majority of nations. In spite of the
opposition from a number of countries, the UN has formally recognised the global
organisations of these minorities and has appealed to all nations to recognise their human
rights as part of humanity.

7. Human Rights Council

The Human Rights Council is an inter-governmental body within the United Nations system
made up of 47 States responsible for the promotion and protection of all human rights around
the globe. It has the ability to discuss all thematic human rights issues and situations that
require its attention throughout the year. It meets at the UN Office at Geneva.
The Council was created by the United Nations General Assembly on 15 March 2006 by
resolution 60/251. Its first session took place from 19 to 30 June 2006. One year later, the
Council adopted its "Institution-building package" to guide its work and set up its
procedures and mechanisms. Among them were the Universal Periodic Review mechanism
which serves to assess the human rights situations in all United Nations Member States,
the Advisory Committee which serves as the Council’s “think tank” providing it with
expertise and advice on thematic human rights issues and the Complaint Procedure which
allows individuals and organizations to bring human rights violations to the attention of the
Council.
The Human Rights Council also works with the UN Special Procedures established by
the former Commission on Human Rights and now assumed by the Council. These are made
up of special rapporteurs, special representatives, independent experts and working groups
that monitor, examine, advise and publicly report on thematic issues or human rights
situations in specific countries.

8. Theories of Human Rights

1. Natural Law Theory:

The credit of giving birth to natural law goes to Greeks. It engaged the attention of
eminent Greek scholars such as Sophocles and Aristotle. After the Greek it was
 further developed by Romans. The natural law was based on rational and reasonable
needs of a man’s nature. In other words those principles were in accordance with
nature and were unalterable and eternal. Natural right theory has been derived from
the above-mentioned natural law theory. The natural rights theory can be said to be
akin or closely associated with modern human rights. It was the duty of the
government to respect and protect the natural rights of its subjects. A government
which failed or neglected the said duty would forfeit its validity and office.
2. Positivism or the Theory of the Authority of State:
According to the positivists, the source of human rights lies in the enactment of a
system of which sanctions attached to it. They emphasise the distinction between “is”
and “ought” and criticise the natural law theorist for undue emphasis on ought and for
blurring the distinction between the two.
3. Marxist Theory:
The Marxists do not conceive the rights of individuals as distinct from the rights of
the society as a whole. According to them, only by achieving the upliftment of the
society or community, the higher freedoms of individuals can be achieved. Thus in
the view of this theory even satisfaction of basic needs of individuals are contingent
on realisation of social goals. In their view, notion of individual right is a bourgeois
illusion.
4. Theories Based on Justice:
John Rawl is the chief exponent of this theory. According to him, “justice is the first
virtue of social institutions”. In his view, the role of justice is crucial to the
understanding of human rights. Indeed human rights are an end of justice provide a
way of assigning rights and duties in the basic institutions of society and also define
the appropriate distribution of the benefits and burdens of social co-operation.
5. Theories Based on Dignity:
The exponents of this theory regard the protection of human dignity as a paramount
objective of social policy. Following a value-policy oriented approach based on the
protection of human dignity, they point out that the demands for human rights are
demands, for wide sharing in all the values upon which human rights depend for
effective participation in all community value processes. According to them there are
eight interdependent values upon which human rights depend. They are: (i) Respect;
(ii) Power; (iii) Enlightenment; (iv) Well-being; (v) Health’ (vi) Skill; (vii) Affection;
(viii) Rectitude.
6. Theory Based on Equality of Respect and Concern:
Theory regarding human rights is based on the equality of respect and concern. This
theory was propounded by Dworkin. The basic premise of this theory is that
government must treat all their citizens with equal concern and respect.

9. Convention relating to the Stateless persons.

The 1954 Convention

The 1954 Convention is designed to ensure that stateless people enjoy a minimum
set of human rights. It establishes the legal definition of a stateless person as someone
who is “not recognized as a national by any state under the operation of its law.” Simply
put, this means that a stateless person is someone who does not have the nationality of
any country. The 1954 Convention also establishes minimum standards of treatment for
stateless people in respect to a number of rights. These include, but are not limited to, the
right to education, employment and housing. Importantly, the 1954 Convention also
guarantees stateless people a right to identity, travel documents and administrative
assistance. There were 83 States party to the 1954 Convention in November 2014 when
teams at UNHCR launched the Campaign to End Statelessness in 10 Years.

The 1961 Convention

The 1961 Convention aims to prevent statelessness and reduce it over time. It
establishes an international framework to ensure the right of every person to a nationality.
It requires that states establish safeguards in their nationality laws to prevent statelessness
at birth and later in life. Perhaps the most important provision of the convention
establishes that children are to acquire the nationality of the country in which they are
born if they do not acquire any other nationality. It also sets out important safeguards to
prevent statelessness due to loss or renunciation of nationality and state succession. The
convention also sets out the very limited situations in which states can deprive a person of
his or her nationality, even if this would leave them stateless. There were 61 states party
to the 1961 Convention in November 2014 when teams at UNHCR launched the
Campaign to End Statelessness in 10 Years.

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