MODULE I

What are Human Rights

UNITED NATION – “Human rights are rights inherent to all human beings, regardless of race, sex,
nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and
liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and
education, and many more. Everyone is entitled to these rights, without discrimination”
Human rights are rights inherent to all human beings, whatever their nationality, place of residence, sex,
national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our
human rights without discrimination. These rights are all interrelated, interdependent and indivisible.
Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary
international law, general principles and other sources of international law. International human rights
law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order
to promote and protect human rights and fundamental freedoms of individuals or groups.

Universal and inalienable

The principle of universality of human rights is the cornerstone of international human rights law. This
principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated
in numerous international human rights conventions, declarations and resolutions. The 1993 Vienna
World Conference on Human Rights, for example, noted that it is the duty of States to promote and
protect all human rights and fundamental freedoms, regardless of their political, economic and cultural
systems.

All States have ratified at least one, and 80% of States have ratified four or more, of the core human
rights treaties, reflecting consent of States which creates legal obligations for them and giving concrete
expression to universality. Some fundamental human rights norms enjoy universal protection by
customary international law across all boundaries and civilizations.

Human rights are inalienable.

They should not be taken away, except in specific situations and according to due process. For example,
the right to liberty may be restricted if a person is found guilty of a crime by a court of law.
Interdependent and indivisible

All human rights are indivisible, whether they are civil and political rights, such as the right to life,
equality before the law and freedom of expression; economic, social and cultural rights, such as the rights
to work, social security and education, or collective rights, such as the rights to development and self-
determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates
advancement of the others. Likewise, the deprivation of one right adversely affects the others.
Equal and non-discriminatory
Non-discrimination is a cross-cutting principle in international human rights law. The principle is present
in all the major human rights treaties and provides the central theme of some of international human
rights conventions such as the International Convention on the Elimination of All Forms of Racial
Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.

The principle applies to everyone in relation to all human rights and freedoms and it prohibits
discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The
principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the
Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”

Both Rights and Obligations

Human rights entail both rights and obligations. States assume obligations and duties under international
law to respect, to protect and to fulfil human rights. The obligation to respect means that States must
refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect
requires States to protect individuals and groups against human rights abuses. The obligation to fulfil
means that States must take positive action to facilitate the enjoyment of basic human rights. At the
individual level, while we are entitled our human rights, we should also respect the human rights of
others.
HUMAN RIGHTS AND HUMAN VALUES
Ever since the beginning of civilisation two conflicting viewpoints, rule of men and rule of law, have
competed for acceptance. Although each school of thought has not lacked in its votaries, in aggregate the
thinking has been in favour of the rule of law. On occasions, we have slipped back into government by
will of men only to return again, sadder and wiser, to the rule of law when the hard facts of human nature
demonstrated the selfishness and egoism of men and the truth of the dictum that power corrupts and
absolute power corrupts absolutely. It is in this context that the demand for civil liberty and human rights
has acquired great, significance. 6One of the major questions that is faced by framers of constitutions in
democratic countries is how to reconcile the needs of an effective government with the preservation of
rights of the individuals.
Firmness in administration is one of the great imperatives of a good government and for a weak
government’ a: observed by Burke, is the worst tyranny. A constitution n therefore, arm the government
with enough powers to exercise control over forces that threaten the even flow of life of the community
and create problems of law and order.
What is the difference between Human Rights and Fundamental Rights?

Fundamental rights are similar to human rights, but are different in the sense that they have legal sanction
and are enforceable in a court of law, whereas human rights do not have such sanctity and are not
enforceable in courts. Then there is difference of universal appeal since fundamental rights are country
specific that have been made keeping in mind the history and culture of a country, whereas human rights
are of even more basic nature and apply to all human beings across the world without any discrimination.
The right to a dignified human life is one such human right which cannot be questioned, whether you are
in the US or in a poor African country.
HUMAN RIGHTS AND INDIAN CONSTITUTION

Preamble : What really matters is whether the Indian Constitution has recognised and given effect to
human rights. “The answer to this is in the affirmative and positive. It may also be added that the Indian
Constitution is credited with not only giving effect to human rights but also with making them enforceable
long before the adoption of the International Covenants on Human Rights in 1966 and even before the
European Convention for the Protection of Human Rights and Fundamental Freedoms, which came into
force on September 3, 1953. According to the Preamble of the Indian Constitution, India is a “Sovereign,
Socialist, Secular, and Democratic Republic.” 17The Preamble begins with the words “We, the People of
India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular Democratic,
Republic...” The opening words of the Preamble are identical with the opening words of the Charter of
the United Nations viz., “We the people of the United Nations . . .”, which represents a new trend and a
new era in the international field and which might have inspired the framers of our Constitution to emulate
the example. Speaking about the said words of the Preamble of the Indian Constitution Justice Bhagwati,
while delivering the judgment in Dr. Pradeep Jain v. Union of India18, observed that they embody the
hopes and aspirations of the people. “It is significant to note that the Preamble emphasises that the people
who have given to themselves the glorious document are the people of India. It gives expression to resolve
of the people to constitute India into a Sovereign, Socialist, Secular, Democratic Republic, and to promote
among all its citizens fraternity, assuring the dignity of all individuals and the unity and integrity of the
nation.” The expression “We, the people of India” signifies the nation as a definite entity.
The expression “We, the people of India” signifies a departure from the traditional view of the sovereign,
i.e., a departure from the concept of sovereign as some determinate person, and seems to affirm the social
contract theory of the State. As in the case of the Preamble of the U.N., so also in the case of the Preamble
of the Indian Constitution, the expression “We, the people...” is neither incidental nor a mere
embellishment. “The expression is in fact concretised into many provisions in the Constitution so as to
give it content and meaning.” In order to appreciate the concept of human rights under the Indian
Constitution, it is pertinent to look at the aims and objects of the Preamble, which are indeed the aims
and objects of the Indian Constitution. The Preamble reflects the high purposes and noble objectives of
the framers of the Constitution. The words of the Preamble embody the hopes and aspirations of the
people, and capture and seek to reproduce the social, economic and political philosophy underlying the
Constitution and running through the warp and woof of the entire fabric. 19Through the Preamble, the
people of India have resolved to secure for all citizens the following four objectives:

a. Justice, social, economic, and political;

b. Liberty of thought, expression, belief, faith, and worship;
c. (c)Equality of status and opportunity; and to promote among them all
d. Fraternity assuring the dignity of the individual and the unity and integrity of the Nation.
In short it was pointed out in Kesavanand Bharti v. State of Kerala20, the Constitution as the supreme
law aims for the good of the mass of citizens and is prefaced by the Preamble, which puts “justice –
social, economic and political” as the first of the four objectives of our Constitution by means of which
the people of India have constituted a Sovereign, Democratic, Republic.
The Supreme Court of India has also recognised the interpretative value of the Universal Declaration of
Human Rights. The Universal Declaration of Human Rights does not define the term ‘human rights’. It
refers them as “the equal and inalienable rights of all members of the human family.”
The Universal Declaration of Human Rights contains civil and political as well as economic, social and
cultural rights. The civil and political rights have been incorporated in Part II of the Indian Constitution.
There are, presently, six fundamental rights documented by the Constitution, such as:
 1. ‘Right to Equality’ means equality before law, ruling out any prejudice on the basis of race,
religion, caste, creed, gender, or place of birth. This right also means an equality of opportunity
with respect to employment, abolition of untouchability, and also abolition of titles.
2. ‘Right to freedom’ includes a gamut of rights such as right to speech and expression, right to
assemble peacefully or to form association, right to move freely throughout the territory of India,
right to life and liberty, right to reside and settle in any part of India, and so on.
3. ‘Right to Freedom Of Religion’ is another important fundamental right that explains the essence
of freedom of conscience, freedom to profess any religion, freedom to run religious affairs, and
freedom to give religious instructions in certain institutions.
4. ‘Right against Exploitation’ talks about the banning of forced labor and prohibition of
employment of children in perilous jobs.
5. ‘Cultural and Educational Rights’ of our Constitution explains the preservation of language and
culture of minorities and right of minorities to establish’ institutions.
6. ‘Right to Constitutional Remedy’ deals with the right to move the courts for issuance of writs &
explains the writs of: Habeas corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari. This
right also lays down the privileges in respect to the National Commission on Minorities, the
National Commission on Women, the National Commission on Scheduled Castes, etc.
Article 39, which aims to secure a welfare State, further elaborates the concept of justice by providing
that the State shall, in particular, direct its policy towards securing
a) that the citizens, men and women equally, have the right to an adequate means to livelihood;
b) that the ownership and control of the material resources of the community are so distributed as best to
subserve the common good;
c) that the operation of the economic system does not result in the concentration of wealth and means of
production to the common detriment;
d) that there is equal pay for equal work for both men and women;

e) that the health and strength of workers, men and women, and the tender age of children are not abused
and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

f) that 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.

MODULE II

UN CHARTER
When states become members of the UN they accept the obligations of the UN Charter that sets out the
four main purposes of the UN: to maintain international peace and security; to develop friendly relations
among nations; to co-operate in solving international problems and in promoting respect for human
rights; and to be a centre for harmonising the actions of nations.
The UN Charter refers to human rights in the Preamble and Articles 1, 8, 13, 55, 56, 62, 68 and 76:

• Article 1 defines one of the objectives of the UN as: ‘[?] promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex, language
or religion’.
• Article 8 states that ‘the United Nations shall place no restrictions on the eligibility of men and
women to participate in any capacity and under conditions of equality in its principal and
subsidiary organs [?]’.
• Article 13 says that the responsibilities, functions and powers of the General Assembly shall
include ‘assisting in the realisation of human rights and fundamental freedoms for all [?]’.
• Article 55 describes the purposes of the UN in international co-operation, which include under
(c): ‘universal respect for, and observance of human rights and fundamental freedoms for all
without discrimination as to race, sex, language, or religion’.
• Article 56 contains a pledge by all members ‘to take joint and separate action in co-operation with
the Organisation for the achievement of the purposes set forth in Article 55’.
• Article 62 contains similar provisions in describing the responsibilities, functions and powers of
the Economic and Social Council (ECOSOC).
• Article 68 authorises the ECOSOC to set up commissions ‘in economic and social fields and for
the promotion of human rights’.
• Article 76 contains human rights provisions in the description of the international trusteeship
system.

UNIVERSAL DECLARATION OF HUMAN RIGHTS

The Universal Declaration of Human Rights (UDHR) is an international document adopted by the
United Nations General Assembly (UNGA). It establishes the rights and freedoms of all members
of the human race.

It was accepted by the UNGA as per Resolution 217 during the session on December 10, 1948. Among
the United Nations members at the time, 48 voted in favour, none against, 8 abstained and 2 did not vote.

The UDHR has played a significant role in the history of human rights.
The UDHR consists of 30 articles detailing an individual’s “basic rights and fundamental freedoms”. It
is universally applicable for all human beings of varying race, religions and nationality.
It directly inspired the development of international human rights law, and was the first step in the
formulation of the International Bill of Human Rights, which was completed in 1966 and came into force
in 1976.

Even though the Universal Human Rights Declaration is not legally binding, its contents has been
elaborated and incorporated into subsequent international treaties, regional human rights and instruments
and in the legal codes of various countries
At least one of the 9 binding treaties of the UDHR has been ratified by all 193 member states of the
United Nations, with the majority ratifying four or more.
Hansa Mehta, a UN delegate from the newly independent country of India and the only other woman on
the Commission on Human Rights was crucial in shaping the declaration. It was she who changed the
original declaration’s first article from “All men are born free and equal” to “All human beings are
born free and equal”.

The structure of the Universal Declaration of Human Rights was influenced by a set of laws formulated
by Napoléon Bonaparte centuries before, collectively known as the Code Napoléon.

• Articles 1 – 2 The basic concepts of dignity, liberty and equality are established.
• Articles 3 – 5 Details of individual rights, such as the right to life and prohibition of slavery are
explained in detail.
• Articles 6 – 11 Refers to the fundamental rights as well as the remedies for their violation.
• Articles 12 – 17 Set forth the rights of the individual towards the community, including
freedom of movement and residence within each state, the right of property and the right to a
nationality.
• Articles 18 – 21 These sets of articles refer to the rights of the individual towards the
community, including freedom of movement, thought, opinion, expression, religion, peaceful
association and ideas through any media.
• Articles 22 – 27 Sanctions an individual’s economic, social and cultural rights including
healthcare. It also upholds the right to a better standard of living and makes a special mention of
care given to motherhood or childhood.
• Articles 28 – 30 It establishes the general means of exercising these rights, the areas in
which the rights of the individual cannot be applied.

International Covenant on Civil and Political Rights (ICCPR), 1966

The Covenant has six signatories, and 173 countries have ratified or acceded to it. The 53 Articles of the
7,044-word Covenant are arranged in six parts. Articles 1-27 (in Parts I, II and III) cover
recommendations to State Parties on securing the civil and political rights of all people. Articles 28-45
(Part IV) propose establishing a Human Rights Committee composed of nationals of the State Parties to
the Covenant.
The following are excerpts from 12 of the 27 Articles in Parts I, II and III that remain especially relevant
to the present times:

Article 1: Each person has the right to self-determination, by virtue of which they freely determine their
political status and pursue their economic, social and cultural development. They may freely dispose of
their natural wealth and resources regardless of obligations arising out of international economic
cooperation and “In no case may a people be deprived of its own means of subsistence.”

Article 3: States Parties shall ensure the equal right of men and women to the enjoyment of all civil and
political rights set forth in the Covenant.
Article 4: In time of public emergency which threatens the life of the nation, the States Parties may take
measures derogating from their obligations under the Covenant to the extent required by the exigencies
of the situation.
Article 6: Every human being has the inherent right to life. This right shall be protected by law – no one
shall be arbitrarily deprived of their life. In countries which have not abolished the death penalty, sentence
of death may be imposed only for the most serious crimes in accordance with the law in force when the
crime was committed. Anyone sentenced to death shall have the right to seek pardon or commutation of
the sentence. Such sentences shall not be imposed for crimes committed by persons below eighteen years
of age and shall not be carried out on pregnant women. “Nothing in this article shall be invoked to delay
or to prevent the abolition of capital punishment by any State Party to the present Covenant.”

Article 9: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of their liberty except on such grounds and in accordance
with such procedure as are established by law. Anyone who is arrested shall be informed, at the time of
arrest, of the reasons for their arrest and shall be promptly informed of any charges against them.

Article 14: All persons shall be equal before the courts and tribunals. Everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal established by law. The press and
the public may be excluded from all or part of a trial for reasons of morals, public order or national
security in a democratic society, or when the interest of the private lives of the parties so requires, or to
the extent strictly necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice. Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law.

Article 18: “Everyone shall have the right to freedom of thought, conscience and religion.” This right
shall include freedom to have or to adopt a religion or belief of their choice, and freedom to manifest
their religion or belief in worship, observance, practice and teaching – individually or in community with
others, in public or private. No one shall be subject to coercion which would impair their freedom to have
or adopt a religion or belief of their choice. Freedom to manifest one’s religion or beliefs may be subject
only to such limitations as are prescribed by law and necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others.
Article 19: Everyone shall have the right to hold opinions without interference; the right to freedom of
expression – including the freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers – orally, in writing or print, in the form of art, or through any other media. This is
subject to restrictions concerning the rights or reputations of others, the protection of national security or
public order, and public health or morals.
Article 20: Propaganda for war shall be prohibited by law. “Any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

Article 21: The right of peaceful assembly shall be recognized. No restrictions may be placed on the
exercise of this right other than those imposed in conformity with the law and which are necessary in the
interests of national security, public safety or public order; the protection of public health or morals or
the protection of the rights of others.
Article 26: All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law, and the law prohibits “any discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other status.”
Article 27: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the other members of their group, to
enjoy their own culture, to profess and practise their own religion, or to use their own language.”

International Covenant on Economic, Social and Cultural Rights (ICESC), 1966

Commitment to ensure economic, social, and cultural rights (ESCR) for individuals and Non-Self-
Governing and Trust Territories
• Labour rights
• Right to health
• Right to education
• Right to an adequate standard of living
Forms part of the International Bill of Human Rights with:

• Universal Declaration of Human Rights (UDHR)

• International Covenant on Civil and Political Rights (ICCPR)

Article 1): Self-Determination

• Recognition of the right of all peoples to self-determination
• Right to freely determine political status
• Pursue economic, social, and cultural goals
• Manage and dispose of own resources
India: Interprets the right of self-determination as applicable only to peoples under foreign
domination, not within sovereign nation-states. Interprets limitations of rights and equal
opportunity in the workplace within its constitution.
Articles 2-5): Principle of Progressive Realisation

• Establishes principle of “progressive realisation”

• Mandates rights to be recognised “without discrimination” based on various factors including
race, sex, language, religion, political opinion, national or social origin, property, birth or other
status
• Limits on rights only permissible by law, compatible with the nature of the rights, and for the
purpose of “promoting the general welfare in a democratic society”

Articles 6-15): List of Rights

Lists the rights themselves, including but not limited to:

• Right to work under just and favourable conditions, with the right to form and join trade unions
(Articles 6, 7, 8)
• Right to social security, including social insurance (Article 9)
• Right to family life, including paid parental leave and protection of children (Article 10)
 • Right to an adequate standard of living, including food, clothing, housing, and continuous
improvement of living conditions (Article 11)
• Right to health, specifically the highest attainable standard of physical and mental health (Article
12)
• Right to education, including free universal primary education, available secondary education,
and accessible higher education (Articles 13, 14)
• Right to participate in cultural life (Article 15)
(Some rights require specific actions to be realised as they are positive rights requiring active fulfilment)
Articles 16-25): Reporting and Monitoring
• Governs reporting and monitoring of the Covenant’s implementation
• Monitoring body – originally United Nations Economic and Social Council, now the Committee
on Economic, Social and Cultural Rights – allowed to make general recommendations to the UN
General Assembly on measures to realise the rights (Article 21)
The Committee on Economic, Social and Cultural Rights is a body of 18 independent human rights
experts responsible for monitoring the implementation of the Covenant.

[Regional Human Rights Systems – https://guides.ll.georgetown.edu/c.php?g=273364&p=6025368 ]

MODULE III
Implementation of Human Rights

• International Human Rights Council

(a) The Human Rights Council is the main intergovernmental body within the United Nations
responsible for human rights. Established in 2006 by the General Assembly, it is responsible
for strengthening the promotion and protection of human rights around the globe.
(b) The Council, composed of 47 Member States, provides a multilateral forum to address human
rights violations and country situations. It responds to human rights emergencies and makes
recommendations on how to better implement human rights on the ground.
(c) Serves as an international forum for dialogue on human rights issues with UN officials and
mandated experts, states, civil society, and other participants;
(d) Adopts resolutions or decisions during regular sessions that express the will of the
international community on given human rights issues or situations. Adopting a resolution
sends a strong political signal which can prompt governments to take action to remedy those
situations;
(e) Holds crisis meetings known as special sessions to respond to urgent human rights situations,
36 of which have been held to date;
(f) Reviews the human rights records of all United Nations Member States via the Universal
Periodic Review;
 (g) Appoints the Special Procedures, independent human rights experts who serve as the eyes and
ears of the Council by monitoring situations in specific countries or by looking at specific
themes; and
(h) Authorizes commissions of inquiry and fact-finding missions, which produce hard-hitting
evidence on war crimes and crimes against humanity.
(i) The Human Rights Council consists of 47 Member States elected directly and individually by
a majority of the 193 states of the UN General Assembly. Elections take place every year.
Seats are equitably distributed among the five UN regional groups, with one-third of the
members being renewed each year. Each member serves a three-year term. Membership is
limited to two consecutive terms. As of December 2022, 123 of the 193 Member States of the
United Nations have served as Council members.
(j) Rotating membership of the Council reflects the UN’s diversity and gives it legitimacy when
speaking out on human rights violations in all countries.
(k) Members commit to upholding human rights and are expected to cooperate fully with the
Council. The General Assembly may vote to suspend a membership in the case of gross and
systematic violations of human rights.
(l) The Universal Periodic Review (UPR), a State-led mechanism that regularly assesses the
human rights situations of all United Nations Member States.
(m) The Special Procedures are individuals or groups, not employed by the UN, who speak out
on themes such as education, health, free speech, and human trafficking, as well as on country
situations including Ukraine, DPRK, Eritrea, and Iran, among others.
(n) The Advisory Committee serves as the Council’s “think tank,” providing it with expertise
and advice on thematic human rights issues.
(o) The Complaint Procedure allows people and organizations to bring human rights violations
to the attention of the Human Rights Council.

Human Rights Committee (CCPR) under ICCPR

(a) The Human Rights Committee (HR Committee) was established by Article 28 of the ICCPR.
(b) Its functions are outlined in Part IV of the Covenant. It has the role of monitoring and supervising
the implementation by States Parties of their obligations under the ICCPR.
(c) Membership – The HR Committee is composed of 18 members, often called ‘Experts’. Members
“shall be persons of high moral character and recognized competence in the field of human rights”
(article 28). Each member is nominated by his or her State Party, and is elected by the States
Parties in a secret ballot. Each member serves a four year term, and may be re-elected if he or she
is re-nominated. States Parties should ensure that there is an “equitable geographical distribution”
of HR Committee members (article 31). A member serves in his or her personal capacity, not as
a representative of his or her State.
(d) Sessions – The HR Committee meets three times a year, the UN headquarters in Geneva (usually
in March, July and October). Each meeting lasts for three to four weeks. Each session of the
Committee is preceded by a one-week meeting of the Committee’s Working Group. The functions
of the Working Group have evolved over the years and are currently devoted solely to handling,
as an initial chamber, decisions Ton the admissibility of Individual Communications under the
First Optional Protocol.
 (e) Functions –
a. Reporting - The State Party must submit periodic reports at intervals dictated by the
Human Rights Committee, usually every four or five years (article 40 of the ICCPR).
Article 40 of the ICCPR requires States Parties “to report on the measures they have
adopted which give effect to the rights recognised herein and on the progress made in the
enjoyment of those rights”. The Human Rights Committee has stressed that the reporting
process should be an opportunity to review administrative procedures as well as
legislation. All relevant departments and bodies should be involved in the drafting of the
report and, if possible, NGOs should also be consulted.
b. Considering Individual Communications – Under the First Optional Protocol the
Committee can receive Individual Communications from any individual under the
jurisdiction of a State that is party to the First Optional Protocol who claims that his or her
rights under the Covenant have been violated by the State Party.
c. Issuing General Comments – Article 40 establishes the possibility of producing General
Comments. By the end of 2009 the Committee had issued 33 General Comments. These
clarify the scope and meaning of various articles and the obligations of States Parties. All
the General Comments can be found on the OHCHR website.
d. Considering Inter-State Complaints – Under article 41 of the ICCPR a State Party may
submit a communication to the Committee alleging that another State Party is not fulfilling
its obligations under the Covenant. This provision is applicable only when both States
Parties have specifically recognized the competence of the Committee in this area. To
date, however, no Inter-State complaint has been submitted to the Committee.

Committee on Economic, Social and Cultural Rights (CESCR) under ICESCR.

The Committee on Economic, Social and Cultural Rights (CESCR) is the body of 18
independent experts that monitors implementation of the International Covenant on
Economic, Social and Cultural Rights by its State parties. The Covenant enshrines
economic, social and cultural rights such as the rights to adequate food, adequate
housing, education, health, social security, water and sanitation, and work.
The Committee seeks to develop a constructive dialogue with State parties, determine
whether the Covenant’s norms are being applied, and assess how the implementation and
enforcement of the Covenant could be improved so all people can enjoy these rights in
full.

Protection of Human Rights Act, 1993

The demand at the national level and as a constructive reply to the criticism of foreign countries, the
Human Rights Commission Bill was first introduced in the Lok Sabha on May 14, 1992. After a deliberate
discussion, the Bill was referred to the Parliament’s Standing Committee on Home Affairs.
However, in response to international and local demands, the President of India promulgated an
Ordinance on September 27, 1993, that established a National Commission on Human Rights. Following
that, on December 18, 1993, the Lok Sabha passed a Bill on Human Rights to replace the ordinance, and
the Bill became an Act on January 8, 1994. This Act came into force on September 28 th, 1993, as provided
in Section 1(3) of the Act.

Salient Features –
(a) To protect human beings from violations of their rights. “Human Rights” include the right to life,
liberty, equality, and dignity, as guaranteed by the constitution.
(b) To protect these rights from abuses of power committed by state bodies.
(c) To establish an organization for the advancement of existing living beings and the development
of their personalities.
(d) To provide effective and necessary actions for securing remedies in the event of a violation of
rights.
(e) The most significant feature of the Act is that it establishes the National Human Rights
Commission, State Human Rights Commissions, and Human Rights Courts to prevent and
prosecute serious human rights violations.
The important provisions of the Act could be divided into four parts as follows:
(a) Definition of “Human Rights” [Chapter I, Sec. 2 of the Act]
(b) NHRC: Constitution, Functions, Power, and Procedure [Chapters II, III, & IV, Sec. 3-20]
(c) SHRC: Constitution, Functions, Power and Procedure [Chapter V, Sec. 21-29]
(d) Human Rights Courts [Chapter VI, Sec. 30 & 31]

Under the Protection of Human Rights Act 1993, the definition of human rights is firmly limited to the
fundamental rights included in Part Ill of the Constitution, which are enforceable by Indian courts.

Beenu Rawat v. Union of India (2013)

Facts
In this case, the members of the Aam Aadmi Party, while protesting against the non-registration of FIR
in of rape case, were lathi-charged by the police, which resulted in injuries to the protesters.

Issue
Whether the use of force exercised by the police was unjustified and excessive and whether the act of the
police violated the fundamental right to life of dignity.
Decision

The Supreme Court transferred this case to the National Human Rights Commission and in view of
Section 12(a) of the Protection of Human Rights Act of 1993, the commission was asked to investigate
the alleged violation of the fundamental right to life and dignity of the protesters. The court further
clarified that the definition of “human rights” is broad enough to include rights relating to life, liberty,
equality, and dignity of the individual guaranteed by the Constitution.

Part II of the Act: National Human Rights Commission (NHRC)

Constitution of the NHRC – Section 3 (1) of the Act provides that the Central Government shall establish
the National Human Rights Commission.

Composition – Section 3(2), (3) & (4) of the Act provides for the composition of the Commission.

Chairman of Retired Chief Justice of India

NHRC
Member 1 One who is/has been a Judge of the Supreme Court of India
Member 2 One who is/has been a Chief Justice of a High Court
Three Members They are to be appointed from amongst persons having knowledge of, or
(out of which at practical experience in, matters relating to human rights.
least one shall be a
woman)
Deemed Members Deemed members are chairpersons of the following national commissions:
(Ex officio National Commission for Backward Classes National Commission for
members) Minorities National Commission for Protection of Child Rights National
Commission for the Scheduled Castes National Commission for the Scheduled
Tribes National Commission for Women Chief Commissioner for Persons with
Disabilities

Section 3(5) of the Act provides that Delhi shall be the headquarters of the Commission. However, the
Commission may, with the prior approval of the Central Government, establish offices in other places in
India.

Appointment of NHRC Members [Section 4]

The Selection Committee includes:

• Prime Minister (Chairman)

• Speaker of the Lok Sabha
• Union Home Minister
• Deputy Chairman of the Rajya Sabha
• Leaders of the Opposition in both Houses of Parliament

Tenure – Section 6 of the Act provides that the Chairperson or any other member shall hold office for a
term of 3 years or until they attain the age of 70 years, whichever is earlier and shall be eligible for re-
appointment.
Removed – the President, under the provisions of this section as mentioned above, has the authority to
remove the Chairperson or any other member if he:

• Is adjudged insolvent; or
• Engages in any other paid employment outside the duties of his office during his term of office;
or
• Is unfit to continue in office due to infirmity of mind or body; or
• Is of unsound mind and is so declared by a competent court; or
 • Is convicted and sentenced to imprisonment for an offense that, in the President’s opinion,
involves moral corruption.
Functions and powers of the Commission
As per Section 12 of the Act, the functions and powers of the National Human Rights Commission are
as follows:
(a) NHRC can investigate any complaints related to violations of Human Rights or negligence in the
prevention of such violations by a public servant; either suo-moto or after receiving a petition.
(b) NHRC can interfere in any judicial process involving any allegation of human rights violation.
(c) It has the authority to visit any prison or institute under the control of the state governments to
observe the living conditions of inmates. It can also make recommendations to the authorities
based on its observations.
(d) NHRC can examine the articles of the Constitution that protect human rights and make
recommendations for punitive measures.
(e) Examine the causes that obstruct the enjoyment of human rights, including acts of terrorism, and
make recommendations for proper remedies.
(f) Study human rights treaties and other international instruments and make suggestions for their
effective implementation.
(g) The Committee undertakes and promotes research in the field of human rights.
(h) Human Rights Literacy and awareness of the safeguards available for the protection of these rights
are promoted by NHRC in various sectors of society through different media, seminars,
publications, etc.
(i) Encourage non-governmental organizations and institutions that work in the field of human rights;
(j) The National Commission for Human Rights may perform any other function that it considers
necessary for the promotion of human rights.

Section 13 of the Act provides that the NHRC while investigating complaints under this Act, has all of
the powers of a civil court trying a case under the Code of Civil Procedure.

Part III of the Act: State Human Rights Commissions (SHRC)

Chapter V, Sections 21–29, contains the provisions regarding the constitution, composition, and
functioning of the SHRC.
State Human Rights Commissions are statutory, non-constitutional bodies (at the state level) involved in
protecting human rights and examining violations that occur within their respective states, just like what
the National Human Rights Commission does at the national level.

West Bengal was the first state in India to constitute a State Human Rights Commission, It was established
on 31st January 1995. Now, As per the official information, 26 states have constituted the State Human
Rights Commission.
Constitution and Composition of SHRC (S. 21)

Chairperson Former Chief Justice or a Judge of a High Court

 Two A Judge of a High Court or District Judge in the State with at least seven years of
members experience as a District Judge. A person who has knowledge as well as practical
experience in human rights issues.
This section further provides that the Secretary shall be the Chief Executive Officer of the State
Commission.

Appointment of members of SHRC

Section 22 provides that the Governor shall appoint the Chairperson and other members of the State
Commission on the recommendation of a committee consisting of the Chief Minister, the Speaker, the
Minister in charge, etc. A sitting High Court judge or a district judge could be appointed only after
consulting with the Chief Justice concerned.
Tenure of the office of members

Provisions regarding the term of office of the chairperson and other members of the state commission are
contained in Section 24, and it is the same as it was in the national commission. (3 years or 70 years of
age, whichever is earlier, and they are also eligible for reappointment).
Scope and jurisdiction of SHRC

Subject to the principle of res judicata, the State Commission is authorized to investigate violations of
human rights relating to any of the entries in Lists II and III of the Seventh Schedule of the Constitution
of India.
Two or more state governments may, with the consent of a chairperson or member of a state commission,
appoint such a chairperson or member of another state commission simultaneously if he consents to such
appointment.
Functions and Powers of SHRC

In Bihar State Electricity Board v. Bihar State Human Rights Commission (2012), the Patna HC observed
that the State Human Rights Commission has the same functions and powers within the jurisdiction of
the State as the National Commission has under Section 12 of the Act.

Not Mandatory

((Part IV of the Act: Human Rights Courts

Chapter VI of the Act, comprising Sections 30 and 31, makes the provisions relating to the creation of Human Rights Courts
in each district.

Section 30 of the Act authorizes the State Governments, with the consent of the Chief Justice of the High Court, to establish
Human Rights Courts by Notification, specifying for each District a Court of Sessions to be a Human Rights Court. In line
with Section 31 of the Act, the State Government shall appoint a public prosecutor or an advocate who has been in practice
as an advocate for at least seven years for the purpose of conducting matters in the Human Rights Courts. Such a person
would be known as a “Special Public Prosecutor.” It is, however, to be noted that it is not mandatory for the States to create
Human Rights Courts in each and every district, as Section 30 of the Act expressly uses the expression “the State Government
may set up the Courts.” However, in order to provide a speedy trial of offenses arising out of violations of human rights, it is
desirable that states, particularly those where human rights violations take place in large numbers, should establish such
courts.))
 MODULE IV

Ius in bello – the laws concerning the conduct of warfare

International humanitarian law (IHL) is a set of rules that seek to limit the effects of armed conflict. It
lays out the responsibilities of states and non-state armed groups during an armed conflict.
International humanitarian law (IHL) is a set of rules that seeks, for humanitarian reasons, to limit the
effects of armed conflict. It protects persons who are not, or are no longer, directly or actively
participating in hostilities, and imposes limits on the means and methods of warfare. IHL is also known
as “the law of war” or “the law of armed conflict”. IHL is part of public international law, which is made
up primarily of treaties, customary international law and general principles of law (see Article 38 of the
Statute of the International Court of Justice). A distinction must be made between IHL, which regulates
the conduct of parties engaged in an armed conflict (jus in bello), and public international law, as set out
in the Charter of the United Nations, which regulates whether a state may lawfully resort to armed force
against another state (jus ad bellum). The Charter prohibits such use of force with two exceptions: cases
of self-defence against an armed attack, and when the use of armed force is authorized by the United
Nations Security Council. IHL does not stipulate whether the commencement of an armed conflict was
legitimate or not, but rather seeks to regulate the behaviour of parties once it has started.

The Human Rights Law and the International Humanitarian Law are two distinct terms even though they
have a lot of similarity among them. Human Rights Law applies during conditions of peace while the
IHL applies during conditions of conflicts and disturbances .The distinction between the two laws is said
to be artificial. The rights covered by the two are human rights covers the areas of freedom of expression,
assembly and also the right to marry. While IHL covers the protection of the wounded, sick and
shipwrecked. IHL is an international law that applies to situations of armed conflicts and also limits the
effects of the conflict.
It requires, among other things:

(a) The rapid and unimpeded passage for humanitarian aid during armed conflicts
(b) The freedom of movement for humanitarian workers in conflict areas
(c) The protection of civilians (including medical and humanitarian workers)
(d) The protection of refugees, prisoners, and the wounded and sick.

Why is this important?

The rules are designed to protect civilians and humanitarian and medical workers during armed conflicts
in any part of the world. Without them, there would be no international standards at all for this.

Development of IHL
It started with French and Austrian armies fighting the battle of Solferino in northern Italy in June, 1859.
The idea of international action to limit the suffering of the sick and wounded in wars was born in the
mind of Henri Dunant, a young Swiss citizen. Dunant found himself, more or less by accident, among
thousands of French and Austrian wounded after the battle, and with a few other volunteers he did what
he could to ease their suffering. Appalled by what he had seen, he then wrote a book Un souvenir de
Solferino, published in 1862, in which he suggested that national societies should be created to care for
the sick and wounded irrespective of their race, nationality or religion. He also proposed that States
should make a treaty recognizing the work of these organizations and guaranteeing better treatment for
the wounded.
With four friends, Henri Dunant then set up the International Committee for Aid to the Wounded
(soon to be renamed the International Committee of the Red Cross). Dunant’s ideas met a wide
response. In several countries national societies were founded and at a diplomatic conference in Geneva
in 1864 the delegates of 16 European nations adopted the Convention for the Amelioration of the
Condition of the Wounded in Armies in the Field. This document, the First Geneva Convention,
enshrined the principles of universality and tolerance in matters of race, nationality and religion.
The emblem, a red cross on a white field, was adopted as the distinguishing mark of military medical
personnel. In Islamic countries, the emblem is a red crescent on a white field. Medical staff and
installations were from this time on to be considered as neutral.

Red Cross, a promoter and custodian of the humanitarian idea and the primary initiation for its transition
into international humanitarian law.

Under the auspices of the League of Nations, a conference was held in Geneva from 4 May to 17 June
1925. In this conference two documents were signed: (i) “the Convention for the Supervision of the
International Trade in Arms, Munitions and Implements of War which has not entered into force, and (ii)
the Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare.”

Four Geneva Conventions in 1949, its three Aps in 1977 and 2005 and the permanent International
Criminal Court in 1998 have given a great success to the development of IHL.

Three out of these four conventions which are relative to wounded and sick and shipwrecked members
of the armed forces and prisoners of war which were existing prior to adopting these Conventions in
1949, in this conference those had been reviewed, modified and improved and the fourth one which was
almost entirely new, related to the protection of the civilians, had filled the gaps felt keenly by the world
community during the Second World War.

Convention I:
This Convention protects wounded and infirm soldiers and medical personnel who are not taking active
part in hostility against a Party. It ensures humane treatment without discrimination founded on race,
color, sex, religion or faith, birth or wealth, etc. To that end, the Convention prohibits torture, assaults
upon personal dignity, and execution without judgment (Article 3). It also grants the right to proper
medical treatment and care.

Convention II:
This agreement extended the protections described in the first Convention to shipwrecked soldiers and
other naval forces, including special protections afforded to hospital ships.
Convention III:
One of the treaties created during the 1949 Convention, this defined “Prisoner of War,” and accorded
such prisoners proper and humane treatment as specified by the first Convention. Specifically, it required
POWs to give only their names, ranks, and serial numbers to their captors. Nations party to the
Convention may not use torture to extract information from POWs.

Convention IV:
Under this Convention, civilians are afforded the same protections from inhumane treatment and attack
afforded to sick and wounded soldiers in the first Convention. Further, additional regulations regarding
the treatment of civilians were introduced. Specifically, it prohibits attacks on civilian hospitals, medical
transports, etc. It also specifies the rights of internees (POWs) and saboteurs. Finally, it discusses how
occupiers are to treat an occupied populace.

Protocol I: 1977
The signing Nations agreed to further restrictions on the treatment of “protected persons” according to
the original Conventions, and clarification of the terms used in the Conventions was introduced. Finally,
new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams
and nuclear installations) were produced.
Protocol II: 1977
In this Protocol, the fundamentals of “humane treatment” were further clarified. Additionally, the rights
of interned persons were specifically enumerated, providing protections for those charged with crimes
during wartime. It also identified new protections and rights of civilian populations.
Protocol III: 2005
Adopted in 2005 to add another emblem, the “red crystal,” to the list of emblems used to identify neutral
humanitarian aide workers.
Disputes arising under the Conventions or the Protocols are settled by courts of the member nations
(Article 49 of Convention I) or by international tribunals.
The ICRC has a special role given by the Geneva Conventions: it handles, and is granted access to, the
wounded, sick, and POWs.
India is the 5th country in the world to ratify the Geneva Convention in 1960. India is also the first
country in the region to adopt this convention. However, India did not ratify the additional protocols
1 and 2 of 1977, but it ratified the third protocol of 2005. In response to a question in parliament in
2019, the government informed that no decision has not yet been taken to ratify protocols 1 and 2.

WAR CRIMES AND CRIMES AGAINST HUMANITY

War Crimes
The term “war crimes” refers to serious breaches of international humanitarian law committed against
civilians or enemy combatants during an international or domestic armed conflict, for which the
perpetrators may be held criminally liable on an individual basis. Such crimes are derived primarily from
the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 1977, and the Hague
Conventions of 1899 and 1907. Their most recent codification can be found in article 8 of the 1998 Rome
Statute for the International Criminal Court (ICC).
The vast majority of incidents listed in the report could, if investigated and proven in a judicial process,
“point to the commission of prohibited acts such as murder, wilfully causing great suffering, or serious
injury to body or health, rape, intentional attacks on the civilian population, pillage, and unlawful and
arbitrary destruction of civilian goods, including some which were essential to the survival of the civilian
population. The vast majority of these acts were committed against protected persons, as defined in the
Geneva Conventions, primarily people who did not take part in the hostilities, particularly civilian
populations and those put out of combat. This applies in particular to people living in refugee camps,
who constitute a civilian population that is not participating in the hostilities, in spite of the presence of
military personnel among them in some cases.” The report notes that almost all the violent incidents listed
from 1996 onwards fall within the scope of armed conflict, whether internal or international in nature.
“The duration and intensity of the violent incidents described, and the apparent level of organisation of
the groups involved, could lead to the conclusion that, with few exceptions, this was an internal conflict
and not simply domestic disturbances or tensions or criminal acts. In conclusion, the vast majority of
violent incidents listed in this report are the result of armed conflict and if proven in a judicial process,
point to the commission of war crimes as serious breaches of international humanitarian law.”

Crimes against Humanity

The definition of ‘crimes against humanity’ is codified in article 7 of the Rome Statute of the International
Criminal Court (ICC). “The notion encompasses crimes such as murder, extermination, rape, persecution
and all other inhumane acts of a similar character (wilfully causing great suffering, or serious injury to
body or to mental or physical health), committed ‘as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack’.”
The mapping report says that most incidents listed may fall within the scope of “widespread or systematic
attacks” characterized by “multiple acts of large-scale violence, carried out in an organised fashion and
resulting in numerous victims. Most of these attacks were directed against non-combatant civilian
populations consisting primarily of women and children. As a consequence, the vast majority of acts of
violence perpetrated during these years, which formed part of various waves of reprisals and campaigns
of persecution and pursuit of refugees, were in general terms all transposed into a series of widespread
and systematic attacks against civilian populations and could therefore be classified as crimes against
humanity by a competent court.”
The report suggests that acts that may amount to crimes against humanity were committed throughout
the entire 1993-2003 reporting period. Some acts, such as the mass forced deportation of Kasaians from
Katanga province in 1993, were committed outside the framework of an armed conflict. Others, such as
the 1996-1997 systematic massacre of Hutu refugees, and the murder, torture, and violence directed at
Tutsis in the DRC at the start of the August 1998 war, occurred within an armed conflict, and may
therefore also amount to war crimes.

Protection of Vulnerable Groups

Children
Recognizing that children need special protection, the United Nations adopted the Convention on the
Rights of the Child in 1989. The Convention states that the child, by reason of his physical and mental
maturity, needs special safeguards and care. This includes appropriate legal protection, before as well as
after birth.

• Rights
o In all actions concerning children, the best interests of the child shall be a primary
consideration.
o Parents and guardians have primary responsibility for the upbringing of their children.
However, they should to carry out those responsibilities in a manner consistent with the
evolving capacities of the child.
o A child has the right to maintain contact with both parents. However, such contact should
not be contrary to the child’s best interest.
Women

The most prominent human rights document concerning the human rights of women is the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW).

The focus of CEDAW is elevating the status of women to that of men in the area of human rights. The
underlying purpose of CEDAW is to ensure that women’s human rights receive the same attention as
those of men.

• Rights
o Equality of genders within political and public life, including equality in voting.
o Equality of men and women in the fields of education, employment, health care, and
economic benefits
o Equality between men and women in civil matters, including the right to conclude
contracts and administer property.
Persons With Disabilities

In 1975, the United Nations adopted a declaration on the rights of persons with disabilities. The
declaration defines a person with a disability as any person unable to ensure by himself or herself, wholly
or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either
congenital or not, in his or her physical or mental capabilities.

• Rights
o Persons with disabilities have the right to measures that enable them become as self-reliant
as possible.
o Persons with disabilities have the right to medical, psychological, and functional
treatment, including prosthetic and orthotic appliances.
o Persons with disabilities have the right to medical and social rehabilitations. They also
have the right to education, vocational training and rehabilitation. Further, they have the
right to counselling, placement services, and other services to assist in social integration.
o Persons with disabilities have the right to economic and social security and a decent level
of living.
o People with disabilities have the right to secure and retain employment or to engage in a
useful, productive, and remunerative occupation and to join trade unions.
 o People with disabilities have the right to live with their families and to participate in all
social, creative, or recreational activities.
o People with disabilities have the right to protection against exploitation and treatment of
a discriminatory, abusive, or degrading nature.

Older People
In 1999, the United Nations issued a document known as Principles for the Older Person.

• Rights
o 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.
o Older persons should have the opportunity to work and to participate in determining when
to retire.
o Older persons should be able to reside at home for as long as possible.
o 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.
o Older persons should be able to serve as volunteers in positions appropriate to their
interests and capabilities and to form associations.
o Older persons should benefit from family and community care and have access to
adequate and appropriate health care.
o Older persons should have access to social and legal services to enhance their autonomy,
protection, and care.
o Older persons should be able to pursue opportunities for the full development of their
potential.
o Older persons should have access to the educational, cultural, spiritual, and recreational
resources of society.

End.