lOMoARcPSD|25951372

HUMAN RIGHTS
1. DEFINE HUMAN RIGHTS.

ANS-
Human beings are born equal in dignity and rights. These are moral claims which are
inalienable and inherent in all individuals by virtue of their humanity alone, irrespective of
caste, colour, creed, and place of birth, sex, cultural difference or any other consideration.
These claims are articulated and formulated in what is today known as human rights. Human
rights are sometimes referred to as fundamental rights, basic rights, inherent rights, natural
rights and birth rights.
Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every
individual must have against the State, or other public authority, by virtue of his being a
‘member of human family’ irrespective of any consideration. Durga Das Basu’s definition
brings out the essence of human rights.
The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as “rights
derived from the inherent dignity of the human person.” Human rights when they are
guaranteed by a written constitution are known as “Fundamental Rights” because a written
constitution is the fundamental law of the state.
Following are the characteristics of human rights:
1. Human Rights are Inalienable - Human rights are conferred on an individual due to the
very nature of his existence. They are inherent in all individuals irrespective of their caste,
creed, religion, sex and nationality. Human rights are conferred to an individual even after
his death. The different rituals in different religions bear testimony to this fact.
2. Human Rights are Essential and Necessary - In the absence of human rights, the moral,
physical, social and spiritual welfare of an individual is impossible. Human rights are also
essential as they provide suitable conditions for material and moral upliftment of the people.
3. Human Rights are in connection with human dignity - To treat another individual with
dignity irrespective of the fact that the person is a male or female, rich or poor etc. is
concerned with human dignity. For eg. In 1993, India has enacted a law that forbids the
practice of carrying human excreta. This law is called Employment of Manual Scavengers
and Dry Latrines (Prohibition) Act.
4. Human Rights are Irrevocable: Human rights are irrevocable. They cannot be taken away
by any power or authority because these rights originate with the social nature of man in the
society of human beings and they belong to a person simply because he is a human being. As
such human rights have similarities to moral rights.
5. Human Rights are Necessary for the fulfillment of purpose of life: Human life has a
purpose. The term “human right” is applied to those conditions which are essential for the
fulfillment of this purpose. No government has the power to curtail or take away the rights
which are sacrosanct, inviolable and immutable.
6. Human Rights are Universal – Human rights are not a monopoly of any privileged class
of people. Human rights are universal in nature, without consideration and
 lOMoARcPSD|25951372

without exception. The values such as divinity, dignity and equality which form the basis of
these rights are inherent in human nature.
7. Human Rights are never absolute – Man is a social animal and he lives in a civic
society, which always put certain restrictions on the enjoyment of his rights and freedoms.
Human rights as such are those limited powers or claims, which are contributory to the
common good and which are recognized and guaranteed by the State, through its laws to the
individuals. As such each right has certain limitations.
8. Human Rights are Dynamic - Human rights are not static, they are dynamic. Human
rights go on expanding with socio-eco-cultural and political developments within the State.
Judges have to interpret laws in such ways as are in tune with the changed social values.
For eg. The right to be cared for in sickness has now been extended to include free medical
treatment in public hospitals under the Public Health Scheme, free medical examinations
in schools, and the provisions for especially equipped schools for the physically
handicapped.
9. Rights as limits to state power - Human rights imply that every individual has legitimate
claims upon his or her society for certain freedom and benefits. So human rights limit the
state’s power. These may be in the form of negative restrictions, on the powers of the State,
from violating the inalienable freedoms of the individuals, or in the nature of demands on the
State, i.e. positive obligations of the State.

2. DISCUSS THE ORIGIN AND DEVELOPMENT OF HUMAN RIGHTS WITH

REFERENCE TO INTERNATIONAL AND NATIONAL PERSPECTIVE.
ANS-
“Human rights” are rights inherent to all human beings, regardless of our nationality,
residence, sex, sexual orientation and gender identity, national or ethnic origin, color,
religion, language or any other status. We are all equally entitled to our human rights without
discrimination.
This is the modern concept of our fundamental rights but it was not always this way.
The belief that everyone, by virtue of her or his humanity, is entitled to certain
human rights is fairly new and is something stemming from an evolution of the
consideration of human dignity over the last centuries. Its roots lie in earlier
tradition and documents of many cultures.
The origins of Human Rights are ideally pinpointed to the year 539 BC. When the troops of
Cyrus the Great conquered Babylon. Cyrus freed the slaves, declared that all people had the
right to choose their own religion, and established racial equality. These and other principles
were recorded on a baked-clay cylinder known as the Cyrus Cylinder, whose provisions
served as inspiration for the first four Articles of the Universal Declaration of Human Rights.
Another cornerstone in Human Rights History is represented by the promulgation of the
Magna Charta in 1215 which introduced a raw concept of “Rule of Law” and the basic idea
of defined rights and liberties to all persons, which offers protection from arbitrary
prosecution and incarceration. Before the Magna Charta, the rule of law, now considered as
a key principle for good governance in any modern democratic
 lOMoARcPSD|25951372

society, was perceived as a divine justice, solely distributed by the monarch or the king or, in
this case, King John of England.
An evolution of the concepts expressed by the Magna Carta is represented by the
English Bill of Rights. It was an act signed into law in 1689 by William III and Mary II, who
became co-rulers in England after the overthrow of King James II. The bill outlined specific
constitutional and civil rights and ultimately gave Parliament power over the monarchy.
Many experts regard the English Bill of Rights as the primary law that set the stage for a
constitutional monarchy in England. It’s also credited as being an inspiration for the U.S. Bill
of Rights (1791).
The Declaration of the Rights of Man and of the Citizen, adopted in 1789, by
France’s National Assembly , represents one of the basic charters of human liberties,
containing the principles that inspired the French Revolution.
The basic value introduced by the Declaration was that all “men are born and remain free
and equal in rights”, which were specified as the rights of liberty, private property,
the inviolability of the person, and resistance to oppression. All citizens were equal before the
law and were to have the right to participate in legislation directly or indirectly; no one was to
be arrested without a judicial order. Freedom of religion and freedom of speech were
safeguarded within the bounds of public “order” and “law”. Private property was given the
status of an inviolable right, which could be taken by the state only if an indemnity were
given and offices and positions were opened to all citizens.
It is in this historical period that the concept, mostly based on political concerns, of Civil and
Political Rights was defined. These rights, also known as first generation rights, recognise the
existence of certain things that the all-powerful rulers should not be able to do and that people
should have some influence over the policies affecting them. The two central ideas were
those of personal liberty, and of protecting the individuals against violations by the State.
They serve negatively to protect the individual from excesses of the State.
The steps forward made since the time of Cyrus were impressive, yet still many of these
concepts, when originally translated into policies, excluded women, people of color, and
members of certain social, religious, economic, and political groups.
Prime examples to overcome this situation are represented by the efforts in the 19th and early
20th centuries to prohibit the slave trade and to limit the horrors of war.
Significant is the adoption of the first three Geneva Conventions and the Hague
Conventions expressing the deep concern of the public opinion to promote a
respect of a basic level of Human dignity of individuals even in wartime and
posing the foundations of modern International Humanitarian Law. The concerns
over the protection of certain minority groups, which were raised by the League of Nations at
the end of the First World War, and the establishment of the International Labor Organization
(ILO) to oversee treaties protecting workers with respect to their rights, including their health
and safety, manifest the increased positive attitude toward the recognition of the importance
of Human Rights as we know them today.
The time for a revolution and a deep progress in the protection and promotion of human
dignity was ripe. Eventually, it took the catalyst of World War II to propel human rights onto
the global stage and into the global conscience. The unprecedented cruelties perpetrated
during the conflict and outside it such as the extermination by Nazi Germany of over six
million Jews, Sinti and Romani (gypsies), homosexuals, and persons with disabilities
horrified the world. The idea of human rights thus emerged even stronger than ever after
World War II. The Trials held in
 lOMoARcPSD|25951372

Nuremberg and Tokyo after World War II, introduced the rather new concepts of "crimes
against peace," and "crimes against humanity."
Governments then committed themselves to establishing the United Nations, with the
primary goal of bolstering international peace and preventing conflict. People wanted to
ensure that never again would anyone be unjustly denied life, freedom, food, shelter, and
nationality.
It was the 1945 and the fifty founding members of the United Nations stated, in the preamble
of the UN Charter, that they were determined to save succeeding generations from the
scourge of war, which twice in our lifetime has brought untold sorrow to mankind, to reaffirm
faith in fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women and of nations large and small, and to establish conditions under
which justice and respect for the obligations arising from treaties and other sources of
international law can be maintained in order to promote social progress and better standards
of life in larger freedom.
In the first article of the same Charter, Member states pledged “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 fundamental freedoms for all without distinction as to race, sex, language, or
religion.”
A strong political commitment was set and to advance on these goals, a Commission on
Human Rights was immediately established and charged with the task of drafting a document
spelling out the meaning of the fundamental rights and freedoms proclaimed in the Charter.
Three years later, The Commission, guided by Eleanor Roosevelt’s forceful leadership,
captured the world’s attention, drafting the 30 articles that now make up the Universal
Declaration of Human Rights.
The Declaration was presented to the world, acting for the first time as a
recognized and internationally accepted charter, whose first article states that
“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."
The UDHR, although not legally binding, introduces the concept that how a government
treats its own citizens is now a matter of legitimate international concern, and not simply a
domestic issue, and that the exercise of a person's rights and freedoms may be subject to
certain limitations, which must be determined by law, solely for the purpose of securing due
recognition of the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.
Its Preamble eloquently asserts that: recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of freedom, justice,
and peace in the world. It restates the already identified civil and political rights and
introduces the so-called second generation rights, fundamentally economic, social, and
cultural in nature, furthermore claiming that all rights are interdependent and indivisible.
The message was clear and powerful, the realization of one Right is linked to the realization
of the others. 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
 lOMoARcPSD|25951372

of one right facilitates advancement of the others. Similarly, the deprivation of one right
hampers the improvement and enjoyment of the others.
The influence of the UDHR has been substantial and together with the International
Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights it
constitutes the so defined “International Bill of Rights” that lays down the obligations of
Governments to act in certain ways or to refrain from specific acts, in order to promote and
protect human rights and fundamental freedoms of individuals or groups.
Its principles, by now, have been incorporated into the Constitutions of almost all the UN
members and has achieved the status of customary international law regarded as a common
standard of achievement for all people and all nations.
Human Rights have continued to evolve and, since its foundation, the United Nations has
adopted more than 20 principal treaties including conventions to prevent and prohibit specific
abuses like torture and genocide and to protect particularly vulnerable populations, such as
refugees (Convention Relating to the Status of Refugees, 1951), women (Convention on the
Elimination of All Forms of Discrimination against Women, 1979), and children (Convention
on the Rights of the Child, 1989).
A multitude of other treaties and documents have clarified and further developed some of the
basic concepts that were laid down in the original UDHR, thus envisaging new generations of
rights. These additions have been a result of a number of factors, partly as a response to
progressively modified ideas about human dignity, and partly as a result of new emerging
threats and opportunities. As far as for the specific new category of rights, that have been
proposed as third generation rights, these have been the consequence of a deeper
understanding of the different types of obstacles that may stand in the way of realizing the
first and second- generation rights. The idea at the base of the third generation of rights is that
of solidarity and collective rights of society or peoples, such as the right to sustainable
development, to peace or to a healthy environment.
In much of the world, conditions such as extreme poverty, war, ecological and natural
disasters have meant that there has been only very limited progress in respect of human
rights. For that reason, people have felt necessary the recognition of a new category of human
rights.
Following emerging threats and opportunities, the so-called 4th generation rights, linked to
the recent fast technology development, represent the last discussed frontier of Human
Rights. A fusion of material, biological and digital technologies raises existential questions
about what it means to be human and how to protect human dignity. Digitalization and
“datification” of almost all human activities create new opportunities of development but also
new possibilities for human rights violations.
Fortunately, it is nowadays clear that what human dignity means, how to protect and promote
it, is a concept that, albeit rooted within the principles of the UDHR, is in constant evolution
in accordance with the new necessities. There is a need for a comprehensive response and
whilst the international community is still discussing about 4th generation rights it is my
belief that there will be room, in the future, for the fifth and, hopefully, for further
generations of Human Rights.
The evolutions of human rights have taken place over centuries. Man had to struggle hard in
order to achieve the ultimate goal – living with dignity – which still has to be realized in
various societies. India itself is an example where women, children, dalits, bonded labourers,
etc, is trying hard to be a part of mainstream. Inspite of all these,
 lOMoARcPSD|25951372

the world recognized the [Link] of 1945 which states that human rights are inalienable
aspect of mankind. The origin of human rights may be traced to the theory of Natural Rights
derived from the concept of Natural Law, as propounded by ancient Greek Stoic
Philosophers and further developed by Thomas Hobbes and John Locke. The American and
French Revolution gave further impetus to the struggle of human rights.
The evolution and development of human rights in the international context can be traced to
the Magna Carta and the English Bill of Rights followed by the French Declaration and the
American Bill of Rights. The twentieth century witnessed the crystallization of the
philosophy of Human Rights when the United Nations adopted the UN Charter, 1945, The
Universal Declaration of Human Rights, 1948 and the International Covenants on Human
Rights with further emphasis to protection of rights of Women, Abolition of Slavery, Racial
Discrimination, Civil and Political Rights, Economic, Social and Cultural Rights and most
importantly the Rights of children.
The important landmarks in the progress of human rights are as follows: 1 The
Magna Carta, 1215.
The Magna Carta, also known as the Great Charter, of 1215 is the most significant
constitutional document of all human history. The main theme of it was protection against
the arbitrary acts by the king. The 63 clauses of the Charter guaranteed basic civic and legal
rights to citizens, and protected the barons from unjust taxes. The English Church too gained
freedom from royal interferences. King John of England granted the Magna Carta to the
English barons on 15th June 1215. The king was compelled to grant the Charter, because the
barons refused to pay heavy taxes unless the king signed the Charter.
2 The English Bill of Rights, 1689. The next source and avenue of the development of the
philosophy of human rights is the English Bill of Rights, enacted on December 16, 1689, by
the British Parliament. The British Parliament declared its supremacy over the Crown in
clear terms. The English Bill of Rights declared that the king has no overriding authority.
The Bill of Rights codified the customary laws, and clarified the rights and liberties of the
citizens. It lays down the twin foundations, viz., the supremacy of the law, and the
sovereignty of the nation, upon which, the English constitution rests.
3. American Declaration of Independence, 1776. The first colonies to revolt against England
were the thirteen States of America. These states declared their independence from their
mother country on 4th July 1776. The declaration charges the king 7 with tyranny and
affirms the independence of the American colonies. The declaration of independence has
great significance in the history of mankind as it justified the right to revolt against a
government that no longer guaranteed the man’s natural and inalienable rights.
4. The U.S. Bill of Rights, 1791. The U.S. Constitution was enacted on 17th September
1787. The most conspicuous defect of the original constitution was the omission of a Bill of
Rights concerning private rights and personal liberties. Madison,
 lOMoARcPSD|25951372

therefore proposed as many as twelve amendments in the form of Bill of Rights. Ten of these
were ratified by the State legislatures. These ten constitutional amendments came to be
known as the Bill of Rights. The overall theme of the Bill of Rights is that the citizen be
protected against the abuse of power by the officials of the States.
5. The French Declaration of the Rights of Man and of the Citizen, 1789 The fall of Bastille
and the abolition of feudalism, serfdom and class privileges by the National Assembly
ushered France into a new era. On 4th August 1789, the National Assembly proclaimed the
Rights of Man and of the Citizens. The Rights were formulated in 17 Articles. The
Declaration of the Rights of Man and of the Citizen has far reaching importance not only in
the history of France but also in the history of Europe and mankind. The declaration served
as the death warrant for the old regime and introduced a new social and political order,
founded on the noble and glittering principles. Further the declaration served as the basis for
many Constitutions, framed in different countries, where the framers gave top priority to
human rights.
6. Declaration of International Rights of Man, 1929. After World War I, questions about
human rights and fundamental freedoms began to be raised. In 1929, the Institute of
International Law adopted the Declaration of International rights of Man. The Declaration
declared that fundamental rights of citizen, recognized and guaranteed by several domestic
constitutions, especially those of the French and the
U.S.A constitutions, were in reality meant not only for citizens of the states but for all men all
over the world, without any consideration.
7. The UN Charter, 1945. The United Nations Charter was drafted, approved and
unanimously adopted by all the delegates of the 51 states, who attended the United Nations
Conference at San Francisco. The UN Charter contains provisions for the promotion and
protection of 8 human rights. The importance of the Charter lies in the fact that it is the first
official document in which the use of ‘human rights’ is, for the first time traceable and which
also recognized the respect for fundamental freedom.
8. The Universal Declaration of Human Rights, 1948. The Universal Declaration of Human
Rights was adopted by the General Assembly of the United Nations on 10th December, 1948.
The Declaration consists of thirty Articles and covers civil, political, economic, social and
cultural rights for all men, women and children. The declaration however is not a legally
binding document. It is an ideal for all mankind.
9. International Covenants on Human Rights The Universal Declaration of Human Rights,
1948 was not a legally binding document. It lacked enforcements. This deficiency was
sought to be removed by the U.N. General Assembly by adopting in December, 1966, the
two Covenants, viz, 1. International Covenant on Civil and Political Rights and 2.
International Covenant on Economic, Social and Cultural Rights. The two International
Covenants, together with the Universal Declaration and the Optional Protocols, comprise the
International Bill of Human Rights. The International Bill of Human Rights represents a
milestone in the history of human rights. It is a modern Magna Carta of human rights.
A perusal of Indian Constitution shows that human rights have been classified under Indian
Constitution the following categories:
 lOMoARcPSD|25951372

(1) Fundamental Rights and Rights to Freedom (Fundamental Freedoms);

(2) Civil and Political Rights and Economic , Social and Cultural Rights;
(3) Human Rights for and Human for citizens only;
(4) Justiciable Human Rights and non-Justicable Human Rights;
(5) Enumerated Human Rights Unenumerated Human Rights.

1. Fundamental Rights and Rights Freedom (Fundamental Freedoms).-The Charter the

United Nations uses "human and fundamental freedoms" in Article 13(1)(b), Article and
Article 76(c). preamble Universal Declaration of Human Rights also uses term" "Human
Rights Fundamental Rights".
The distinction between "human right very European Convention the European for the
Protection Human Rights and Fundamental Freedoms (1950).
Probably taking clue from the Universal Declaration Rights (1948), respect the Fundamental
Rights contained Article Articles 25, 26, 27 and 28 whereas the term 'right' has been referred
in respect of other fundame tal freedoms. As in the case of international instruments
concerning hum. rights, in the Constitution of India has also not laid down any test for dividi
human rights, into categories of 'rights' and 'right to freedom'.
2. Civil and Political Rights and Economic, Social and Cultur Rights.-A distinction
between civil and political rights on the one hand, am economic, social and cultural rights
has always been maintained. While civ and political rights are recognized as the traditional
rights of the individua against the State and are based on the laissez faire doctrine of non-
interference the position of economic, social and cultural rights is different. They an
relatively a later growth and are not based on non-interference of the State.
The object of directive principles is to establish a welfare State. It has beer pointed out that
there are two aspects of the Directive Principles-(i) The negative aspect; and
(ii) the positive aspect. As part of the negative aspect it is emphasized that the violation of a
directive principle does not entitle a citizen to seek mandatory relief against the State. For
example, in Kesavananda Bharati v. State of Kerala, Sikri, C.J. observed that directive
principles are not justiciable and cannot be enforced by any court.
3. Human Rights for all Human Rights for citizens only. The Univer sal Declaration of
Human Rights proclaims the Human Right and Fundamental Freedoms for everyone' and
distinction, is made between a person' and a 'citizen'. The same pattern is followed by the
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
and through out the Convention the terms 'everyone' and 'no one' have been used.
The Indian Constitution has classified Fundamental Rights into two categories (i)
Fundamental Rights which are available to citizens only and (ii) Fundamental Rights
available to all persons residing within the territory ofIndia for the time being and subject to
its jurisdiction. 4. Justiciable and Non-Justiciable Human Rights and
 lOMoARcPSD|25951372

Relative Importance of Parts III and IV.-Yet another classification made under Indian
Constitution is that of justiciable and non-justiciable human rights and it has been briefly
referred to earlier. While Fundamental Rights are justiciable in Courts of law, Directive
Principles of State Policy are not enforceable in any Court.
5. Enumerated and Unenumerated Human Rights.-Yet another clas sification of Human
Rights that is found in Indian Constitution is that of Enumerated and Unenumerated Human
Rights. The general practice is that in written Constitution Fundamental Rights are clearly
enumerated. Indian Con stitution has also followed this practice. But a pertinent question
arises whether such enumeration is exhaustive or can other rights be evolved out of the
existing fundamental rights.
In Satwant Singh Sawhney v. Do Ramarathan, it was held by the Supreme Court by majority
that the expression "personal liberty" in Article 21 of the Constitution includes the right to
travel abroad and no person can be deprived of that right except according to procedure
established by law. In Maneka Gandhi v. Union of India, the Special Bench of the Supreme
Court affirmed the above decision.
Relationship between International Covenants on Human Rights and the Indian
Law.-Before the adoption of the Indon Constitution the Indian fraction in respect of relation
of International Law to Internal Law or Municipal Law was similar to the British practice
After the adoption and coming into force of Indian Constitution everything depended upon
the provisions of the Constitution. Therefore, in order to know the position of relationship
between International Law and Internal Law in India, it is necessary to see the relevant
provisions of the Constitution. This is necessary because India ratified the two covenants on
Human Rights-(i) International Covenant on Civil and Political Rights (1966); and (ii)
International Covenant on Economic, Social and Cultural Rights (1966) on March 27, 1979.

3. EXPLAIN THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 AND

ITS UTILITY.
ANS-
Article 1(3) of the UN Charter provides for the pursuit of international cooperation by
resolving international problems of an economic, social, cultural or humanitarian character,
promoting and encouraging respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion. To this end, the United Nations has
embarked on the continuous process of articulating human rights in order to translate them
from morality and principles into binding international law. These standards are the result of
a gradual evolution over several decades with the participation of United Nations bodies,
many nations, non governmental organizations and individuals
 lOMoARcPSD|25951372

The adoption of the Universal Declaration of Human Rights (Universal Declaration), in

1948, was the first step towards the progressive codification of international human rights. In
the 50 years that have elapsed since then, the extraordinary visions enshrined in the
principles of the Declaration have proved timeless and enduring.
The principles have inspired more than 100 human rights instruments which, taken
together, constitute international human rights standards. Outlined below are some
significant international human rights instruments and developments
The Universal Declaration of Human Rights consists of a Preamble and 30 articles, setting
out the human rights and fundamental freedoms to which all men and women are entitled,
without distinction of any kind.
The Universal Declaration recognizes that the inherent dignity of all members of the human
family is the foundation of freedom, justice and peace in the world. It recognizes fundamental
rights which are the inherent rights of every human being including, inter alia, the right to
life, liberty and security of person; the right to an adequate standard of living; the right to
seek and enjoy asylum from persecution in other countries; the right to freedom of
opinionand expression; the right to education, freedom of thought, conscience and religion;
and the right to freedom from torture and degrading treatment. These inherent rights are to be
enjoyed by every man, woman and child throughout the world, as well as by all groups in
society.
The UDHR comprises 30 articles that contain a comprehen sive listing of key civil,
political, economic, social, and cultural rights. the community.
(a) Civil and Political Rights under Article 1 to Article 21 Universal Declaration of Human
Rights (UDHR), 1948 Article 1 to Article 21 provide for Civil and Political Rights which
includes right to life, liberty, security of person. Right to equality, Equality before law,
Right to freedom of movement and residence, right to freedom of thought conscience and
religion, right to freedom of opinion and expression, right to property, right to freedom of
peaceful assembly and association etc.
Article 1: 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: Everyone is entitled to all the rights and freedoms set forth in this Declaration
(Universal Declaration of Human Rights), without distinction of any kind, such as race, color,
language, religion, political or another opinion, national or social origin, property, birth or
other status. sex,
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or
international status of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3: Everyone has the right to life, liberty and security of person.
 lOMoARcPSD|25951372

Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.
Article 6: Everyone has the right to recognition everywhere as a person before the law.
Article 7: 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: 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: No one shall be subjected to arbitrary arrest, detention or exile.
Article 10: 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: Everyone charged with a penal offense has the right to be presumed innocent
until proved guilty according to the law in a public trial at which he has had all the
guarantees necessary for his defense. No one shall be held guilty of any penal offense on
account of any act or omission which did not constitute a penal offense, 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 offense was committed.
Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks.
Article 13: Everyone has the right to freedom of movement and residence within the borders
of each State. Everyone has the right to leave any country, including his own, and to return
to his country.
Article 14: Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
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: Everyone has the right to a nationality. No one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality.
Article 16: 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
 lOMoARcPSD|25951372

rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into
only with the free and full consent of the intending spouses. The family is the natural and
fundamental group unit of society and is entitled to protection by society and the State.
Article 17: Everyone has the right to own property alone as well as in association with
others. No one shall be arbitrarily deprived of his property.
Article 18: 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: 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 : Everyone has the right to freedom of peaceful assembly and association. No one
may be compelled to belong to an association.
Article 21: Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives. Everyone has the right to equal access to public
service in his country.
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.

(b) Economic, Social and Cultural Rights under Article 22 to Article 27: Article 22 to Article
27 provide for Economic, Social and Cultural Rights which Include the Right to Work, the
Right to Social Security, the Right to Protection Against Unemployment, the Right against
slavery and exploitation, the Right to Good Living, the Right to Education and the Right to
health services.
Article 22: 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: Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment. Everyone, without
any discrimination, has the right to equal pay for equal work. 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.
 lOMoARcPSD|25951372

Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24: Everyone has the right to rest and leisure, including reasonable limitation of
working hours and periodic holidays with pay.
Article 25: 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. 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: 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. 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. Parents have a prior right to choose the kind of education that
shall be given to their children.
Article 27: 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. 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.

4. DISCUSS THE ROLE OF APEX COURT IN THE ENFORCEMENT OF HUMAN

RIGHTS IN INDIA,
ANS-
India is a democratic country. During our freedom struggle, the freedom leaders of the
freedom movement had realised the importance of rights. The Motilal Nehru Committee had
demanded a bill of rights as far back as in 1928. It was therefore, natural that when India
became independent and the constitution was being prepared the concept of Human Rights
was accepted.

A unique feature of the Indian constitution is that a large part of human rights are named as
fundamental rights. The fundamental rights in the Indian constitution constitute the Megna
Carta of individual liberty and human rights.

Indian Constitution provides us a list of Fundamental Rights:

1. Rights to Equality.
2. Rights to Freedom.
3. Rights against Exploitation.
4. Cultural and Educational Rights.
 lOMoARcPSD|25951372

5. Rights to Freedom of Religion.

6. Rights to Constitutional Remedies.

ROLE OF JUDICIARY

In our country Judiciary is known as independent part of government. This independent

judiciary has two rules:
1. The traditional role i.e. to interpret the laws, and
2. Judicial Activism, i.e. to go beyond the statute and to exercise the discretionary power to
provide the justice. It plays both roles in very well manner for the protection of fundamental
rights.

Any individual whose fundamental rights have been violated can direct move the Supreme
Court for namely. The Supreme Court and High court can issue writs to the government for
the enforcement of rights.

Habeas Corpus: A writ of Habeas Corpus means that the court orders that the arrested
person should be presented before it. It can be also order to set free an arrested person if the
manner or grounds of arrest are not lawful or satisfactory.

Mandamus : Mandamus is a Latin word, which means “We Command” This writ is issued
when the court finds that a particular office holder is not doing legal duty and thereby is
infringing on the right of an individual.

Prohibition: This writ is issued by a higher court when a lower court has considered a case
going beyond its jurisdiction.

Qua-Warranto : The word Qua-Warranto literally means “by what warrants?” or “what is
your authority”. If the court finds that a person is holding office but is not entitled to hold that
office, it issue the writ and restricts that person from acting as an officer holder.

Certorai: Under this writ, the court orders a lower court or another authority to transfer a
matter pending before it to the higher authority or court.
Thus Judiciary play a important role for the protection of our fundamental rights.

JUDICIAL ACTIVISM IN INDIA

The Term ,” Judicial activism was coined for the first time by Arthur Schlesinger Jr. in his
article ,” The supreme Court 1947,” Published in Fortune magazine in the same year. Though
the history of judicial activism dates back to 1803 when concept of Judicial Review was
evolved by chief justice Marshall in celebrated case of Marbury vs Madison.

The emergence of Judicial Review gave birth to a new moment which is known as Judicial
Activism.

Definition:
 lOMoARcPSD|25951372

Black Law Dictionary Judicial Activism as a ,” Philosophy of judicial decision making

whereby judges allows their personal views about public policy among other factors to guide
their decision”

Exercise of unconventional jurisprudence or creative approach of judiciary can be called as

judicial activism for a instance in India the Supreme Court has treated even a letter as a writ
petition and has passed appropriate orders. This concept has turned into a important means to
enhance the applicability of a particular legislation for social betterment and also to bringing
improvement in the concerned state machinery.

PIL AND JUDICIAL ACTIVISM

Public interest litigation means “litigation in the interest of public” entered judicial process in
1970. This type of litigation was innovated by judges to provide “equal access” to the
unprivileged section of the society.

The idea of PIL came from actiopopular is of the Rome jurisprudence which allowed Court
access to every citizen in matters of public wrong. Development of PIL has provided
significant assistance in making the judicial activism meaningful. On account of this type of
litigation the court has found opportunity to give directions in public interest and enforcement
the public duties.

ROLE OF JUDICIARY ACTIVISM

The most important power of Supreme Court is the power of Judicial Review. In particular
the review power means that the Judiciary can interpret the constitution and the laws passed
by the legislature.

If the court arrives at the conclusion that the law is inconsistent with the provisions of the
constitution such a law is declared as unconstitutional and inapplicable.

Judicial Activism may be defined as dynamic process of judicial outlook in a changing

society. Judicial Activism is all about providing a good governance and ensuring the safety,
security and welfare of the society. The decision of Gulalthanath vs. state of Punjab,
Keshvanand Bharti vs. state of Kerala, Minerva mills vs. Union of the India are worth putting
forth. The colour of Judiciary Activism change with the Supreme Court Judgement in S.P
Gupta care wherever it was pronounced that any person could file a Public interest
Integration for another affected person who was deprived and could not approach the court.

Case study: Air India vs Nergesh Meerza (Air hostesses case ).

In Air India vs Nargesh Meerza the service regulations pertaining to the retirement of air
hostesses of Air India and Indian Airlines was challenged as being violative of the right to
equality under the Indian constitution.
The Supreme Court upheld the condition permitting the termination of an ‘Air Hostess’
services on her marriage within the first four years, but invalidated the condition that
terminated her services on her pregnancy.

Kesavananda Bharti vs. State of Kerala

 lOMoARcPSD|25951372

The Kesavanda Bharti judgement is a landmark decision of the Supreme Court of India that
outlined the ‘basic structure doctrine’ of the constitution. The Supreme Court held that
although no part of the constitution’ including fundamental rights, was beyond the amending
power of parliament, the basic structure of the constitution could not be changed even by a
constutional amendmet.

Shah Bano Case

Shan Bano, a 62year old Muslim women was divorced by her husband in 1978. She filed a
criminal suit in the Supreme Court of India, she wanted alimony from her husband.
Supreme Court delivered a judgement favour maintenance given to aggrieved divorced
Muslim women.

Shreya Singhal vs. Union of India

Shreya Singhal vs. Union of India is a judgement of the Supreme Court of India, on the issue
of online speech and intermediary liability in India.
The Supreme court struck down section 66A of information technology Act, 2000, relating to
restrictions on online speech, as unconstitutional on grounds of violating the freedom of
speech guaranteed under Article 19(1)(a) of the constitution of India.

Vishakha vs. State of Rajasthan

Vishakha and other women groups filed Public Interest Litigation (PIL) against state of
Rajasthan and Union of India to enforce the fundamental rights of working women under
Article 14, 19, 21 of the constitution of India.
The Supreme court laid down some guidelines in the Vishakha case, pending formal
legislation, for dealing with sexual harassment of women at work place, some of guidelines
are as follows –
• Duty of employer or other responsible persons in work place and other institution women
employees to prevent the commission of acts of sexual harassment.
• Courts also provided guidelines to all employers public or private for taking preventing
steps.
• Disciplinary action should be taken against the offender. After providing the guidelines
courts said, “Accordingly, we direct that the guidelines and norms would be strictly observed
in all work places for the preservation and enforcement of the rights to gender equality of the
working women. These directions would be binding and enforceable in law until suitable
legislation is enacted to occupy the field.”

Human Rights is a very old phenomenon and is integral to every human beings for its
development. Human Rights has always been regarded as the backbone of every democratic
set up(6). India has made the most sincere efforts for the protection and promotion of human
rights in the world over.
Supreme Court, High court played an important role in protecting and safeguarding the
human rights in India. Judiciary provide justice through the interpretation of laws. Sometimes
through the wide interpretation of provision of various legislation and also the provision of
constitution judiciary is able to empower to rights.
 lOMoARcPSD|25951372

Another role of judiciary is the activist role which is popularly known as “Judicial Activism.”
When there is no specific law for a specific offence in that case judiciary applies its activist
power for the protection of our rights.

5. DISCUSS THE RIGHTS OF DISABLED PERSONS UNDER THE

FRAMEWORK OF UNITED NATIONS.
ANS-

The United Nations General Assembly has adopted following two declarations for the
improvement of conditions of disabled persons:

(a) The Declaration on the Rights of Mentally Retarded persons; and

(b) The Declaration on the Rights of Disabled persons.

(a) The Declaration on the Rights of Mentally Retarded Persons, 1971.

This Declaration was adopted by the General Assembly on 20th December, 1971, keeping in
view the necessity of providing help to mentally Retarded persons in order to enable them to
develop their abilities and promoting their integration in the normal life. The declaration lays
down the following principles:

(1) The mentally retarded person has to the maximum degrees, of feasibility the same
rights as other human beings;

(2) The mentally retarded person has a right to proper medical care and physical therapy and
to such education, training, rehabilitation and guidance as will enable him to develop his
ability and maximum potential.

(3) The mentally retarded person has a right to economic security and to a decent standard of
living. He has a right to perform productive
work or to engage in any meaningful occupation to the fullest possible extent of his
capabilities.
(4) The mentally retarded person, whenever possible should live with his family, or with
foster parents and participate in different forms of community life. The family with which he
lives should be provided with assistance.

(5) The mentally retarded person has a right to qualified guardian when this is
required to protect his personal well-being and interests.

(6) The mentally retarded person has a right to protection from exploitation, abuse and
dègrading treatment. If prosecuted for any offence, he shall have a right to due process of law
with full recognition being given to his degree of mental responsibility.

(7) Whenever mentally retarded persons are unable because of the security of their handicap
to exercise all their rights in a meaningful way or it should become necessary to restrict or
deny some or all of these rights, the procedure used for that restriction or denial of rights
must contain proper legal safeguards against every form of abuse. This procedure must be
based on an evaluation of social capability of the
 lOMoARcPSD|25951372

mentally retarded person by qualified experts and must be subjected to periodic review and to
the right of appeal to higher authorities.

(b) The Declaration on the Rights of Disabled Persons, 1975

This declaration was adopted by the General Assembly on 9th December. 1975 keeping in
view the necessity of preventing physical and mental disabilities and assisting disabled
persons to develop their abilities in the most varica lields of activities and of promoting their
integration as far as possible in normal life. The Declaration lays down following principles:

(1) The Disabled person shall enjoy all the rights contained in this Declaration without
distinction or discrimination on the basis of race, colour, sex, language, religion, political or
other opinions. national or social origin, state of health, birth or any other situation applying
either to the disabled person himself or herself or to his or her family.

(2) Disabled persons have inherent rights to respect for their human dignity and irrespective
of the origin, nature or seriousness of their handicaps and disabilities, have the same
fundamental rights as their fellow citizens of the same age which implies the right to enjoy à
decent life as normal and full as possible.

(3) Disabled persons have the same civil and political rights as other human beings.

(4) Disabled persons are entitled to the measures designed to enable them to become as self-
reliant as possible.

(5) Disabled person has the right to medical, psychological and functional treatment,
including prosthetic or Prosthetic appliances to medical and social rehabilitation aid,
counselling, placement services and other services which will enable them to develop their
capabilities and skills to the maximum and will hasten the process of their social integration
or reintegration.

(6) Disabled persons have the right to economic and social security including the right,
according to their capabilities to secure and retain employment or to engage in a useful,
productive and remunerative occupation and to join trade unions.

(7) Disabled persons are entitled to have their special need taken into consideration at all
stages of economic and social planning. (8) Disabled persons have the right to live with their
families or with foster parents and to participate in all social, creative or recreational
activities.

(9) Disabled persons shall be protected against all exploitation and treatment of
discriminatory, abusive or degrading nature..
 lOMoARcPSD|25951372

(10) Disabled persons shall be able to avail themselves of qualified legal aid when such
aid proves indispensable for the protection of their persons and property. If judicial
proceedings are instituted against them, the legal procedure applied, shall take their
physical and mental condition fully into account.
International Year of Disabled Person

The General Assembly decided on 16th December, 1978 to observe the year of 1981. as the
International Year for the Disabled Persons for this purpose, a 15 Member Advisory
Committee was formed. Later on its strength was increased to 23 by the General Assembly
Resolution of 20th December, 1978. This Advisory Committee formulated the World
Programme of Action concerning disabled persons which was adopted by the General
Assembly on 3rd December, 1982. Decade
Further, the period 1983-1992 was observed as United Nations of Disabled Persons.

6. DISCUSS THE STRUCTURE, FUNCTIONS AND ACTIVE ROLE OF

NATIONAL HUMAN RIGHTS COMMISSION .
ANS-
The pre-eminent role that the Universal Declaration of Human Rights played in igniting the
flare of ‘humanity’ and ‘human rights’, in conjunction with every facet that fell under its
ambit, found its way to kindle the same spirit in India, in 1993. The United Nations, in 1991,
established key principles to form a concrete base for Human Rights’ institutions, to further
the interest and ensure uniformity in its execution. In pursuance of the same, it concluded the
Paris Principles on Human Rights, which led to the birth of the ‘Protection of Human Rights
Act, 1993’ [‘Act’] in India. In accordance with Section 3 of the said Act, the State is obliged
to form a ‘National Human Rights Commission’ [‘NHRC’] to ensure accurate protection,
representation, and furtherance of Human Rights in our nation.
The NHRC, alias, the ‘watchdog of human rights’, is considered to protect the rights of the
people enshrined in the constitution, in addition to those rights assumed to be inherently
available to them, for being human. The Commission was established on 12th October 1993
and sits at its headquarters, in New Delhi, India. For 27 years it has served the needs of the
people of India, to protect the ‘rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the International
Covenants.’

Composition of the Commission

 lOMoARcPSD|25951372

The NHRC, as stated above, avails its functions, composition, powers, and authority from
the Act of 1993. The constituting body in the NHRC is expressed under Section 3 (2) to
Section 3 (4) of the Act.

Sr. Compositional Break-

Pre-requisites and Eligibility Term of Office
No. down

Term of 5 [Five] years, or

Has been the Chief Justice of till the date he attains 70
1 1 [One] Chairperson
the Supreme Court of India [Seventy] years of age;
whichever is earlier.

Term of 5 [Five] years,

Is or has been a Judge of the
2 1 [One] Member eligible to re-term for
Supreme Court
another 5 [Five] years.

Term of 5 [Five] years,

Is or has been the Chief
3 1 [One] Member eligible to re-term for
Justice of a High Court in
another 5 [Five] years.
India

Persons having knowledge of Term of 5 [Five] years,

4 2 [Two] Members practical experience in eligible to re-term for
handling matters of human another 5 [Five] years.
rights
Chairpersons of-

 National
Commission for Term of 5 [Five] years,
5 4 [Four] Members Minorities eligible to re-term for
 National another 5 [Five] years.
Commission for
the Scheduled
Tribes
 National
Commission for
the Scheduled
Tribes
 National
Commission for
Women
1 [One] Secretary-
6 General/ Chief As appointed by the
Executive Officer Centre/State
 lOMoARcPSD|25951372

Appointment of the Members in the NHRC

The appointment and removal of the commission is done on the basis of Sections 4 and 5
of the Act. The provisions laid thereunder are as follows:

Appointment of Members: The President of India shall make the following appointments,
with consideration and recommendations from a ‘Committee’ formed under this Section.
This Committee shall consist of the following representatives:

 Prime Minister as the Chairperson;

 the Speaker of the Lok Sabha (member);
 the Central Minister of Home Affairs (member);
 the Leader of the Opposition Party in the Lok Sabha (member); and
 the Deputy Chairman of the Rajya Sabha.
This Committee as formed hereinabove shall make recommendations to the President for the
appointment of the following into the Commission:

1. Chairperson ( Sr. No. 1 in the table)

2. 1 Member ( Sr. No. 2 in the table) [if still a sitting judge, the appointment has
to be with prior consultation with the Chief Justice of India].
3. 1 Member ( Sr. No. 3 in the table) [if still a sitting judge, the appointment has
to be with prior consultation with the Chief Justice of India].
4. 2 Members ( Sr. No. 4 in the table)
The absence and vacancy of any of the positions of the members of the ‘Committee’
as stated hereinabove, does not render the appointment of any member to the
NHRC void.

Resignation of Members: The members of the NHRC can, at any time, resign from their
post on the submission of a notice containing details of such resignation, to the President of
India.

Removal of Members: In addition to the appointment of such members of the NHRC, the
President of India can also affect their removal, in the following cases:

 On the grounds of proved misbehavior and/or incapacity of such member;

 If such a member is adjudged as an insolvent
 If such member engages, during his tenure with the NHRC, in any other paid
employment outside his office of duty
 If such member cannot continue their term due to infirmity of body or mind;
 If such a member is convicted and sentenced to imprisonment for an
offense that leads to questioning such member’s moral standing.
At the State level of the HRC, the Governor has the authority and control to appoint and
remove the members of the State Human Rights Commission, in consultation
 lOMoARcPSD|25951372

with the same positions of the government as stated for the NHRC, but at the state level of
every state.

Functions of the NHRC

The NHRC, along with its basic motive of safeguarding the wellbeing and rights of every
individual in the country, has certain niche functions, which are enumerated under
Chapter III of the Act.

General Functions: The NHRC. amongst other facets of its existence, has the authority to
undertake the following:

 Take suo motu cognizance, or intervene, in any matter presented before it, or in
any other court after due permission of such court, involving the gross violation of
human rights and/or the negligence in the prevention of such violation of rights.
 Visit any jails or other institutions to keep a check on the treatment of detainees,
and make recommendations to the respective Government for the same.
 Review the Constitution of India and all other laws prevailing at the present time,
and suggest methods of making the same at par with current human right
standards
 Keep a check on and provide recommendations for unemployment in India, and
measures to reduce the same.
 Ensure precise implementation of international human rights standards in
accordance with international treaties
 Undertake and promote research, and spread awareness through myriad sources
of multimedia, to ensure maximum knowledge of the field in maximum people
in the country
 The members of the NHRC have the power to take up the office or duties of the
Chairperson, in an event such Chairperson is incapacitated, or the members are
directed to do so by the President of India.
 The NHRC can send recommendations to the concerned Government authority
for the payments related to compensation of damages to victims in cases
 It can recommend the initiation of action against a guilty public servant, to the
respected authorities
 It can recommend the grant of interim relief to a victim, to the concerned
government authority
Powers related to Inquiries: In inquiring into complaints filed under the Act, the
Commission is granted powers of a Civil Court in trying a suit as per the directions of the
Code of Civil Procedure, 1908, in specific matters as prescribed to them, including but not
limited to:
 lOMoARcPSD|25951372

 Summoning and examining witness under oath

 Production of documents
 Receiving affidavits as proofs
 Issuing orders for examining witnesses and documents
In addition to these powers, the NHRC has the power to legally bind an individual to furnish
information that the Commission deems expedient in a case, and to enter into any premise
where they have reason to believe certain documents may be found, which according to them
is expedient to a case, and to seize and make copies thereof.

Powers related to Investigation: The NHRC has the power to utilize agencies in
undertaking investigations in relation to any inquiry filed with them, after due permission
from the Central or State Government.

To satisfy itself with the quality and authenticity of data received, the NHRC can also make
any inquiry, and examine any witness as it requires, to fulfill such a need.
Further, if the NHRC considers it necessary to examine any individual, and is of the opinion
that the reputation of such individuals might serve as a bias either for or against them in a
trial, it has the authority to give such individuals an opportunity to defend themselves, and to
be heard in the proceedings.

Limitations of the NHRC

Although being a governmentally associated principal advocate for human rights in our
country, the NHRC does have certain misgivings that limit the authority it seems to have.

 Insufficient powers for rendering relief: The recommendations given by the

NHRC are not binding on any authority, be it legislative or executive. The
Commission cannot penalize any authority or department for not following its
orders or directions. The NHRC cannot actually give pragmatic and complete
judgments to aggrieved parties, like courts, and is thus falling short in giving
practical relief to the victims. Further, the time limit given to each inquiry is 1
[One] year from the date of its admission in the Commission. The NHRC can only
entertain one case for a maximum period of 1 [One], which could affect the
quality of justice.
 Lack of Jurisdiction: As a safeguard for human rights throughout India, the
NHRC is failing at primarily reaching all the parts of the country. The State of
Jammu and Kashmir is not within the jurisdiction of protection and review by the
NHRC, which invalidates the country-wide scope of the Commission. Jammu and
Kashmir, as evidently proved on regular occasions, is the epicentre of gross human
rights violations, by government authorities, armed forces, law enforcement, etc.,
and the NHRC not being given the jurisdiction of this state clearly shows the back
seat that the Commission has in the practical aspect of things. Further, the NHRC
does
 lOMoARcPSD|25951372

not have means to mitigate human right violations between private parties, unless
such parties come to the forefront.
 Armed Forces: The NHRC does not have the jurisdiction to question and ask
information from the National Government, on matters relating to the working of
the Armed Forces, This severely limits the scope of ensuring human rights in all
sectors, as they have to rely solely on the Human Rights report submitted by the
Centre in this regard.
 Shortcomings in Investigations: The NHRC does not have the means to
carry out any investigations with its own agenda and mode, but has to redirect
such a request to the Central or State Government so that they can appoint an
Officer to undertake such an investigation. Further, the time limit placed on the
investigation hampers the working of the NHRC, since they can only investigate a
case for one year after its admission in the Commission. This affects the work and
quality of investigation undertaken by the NHRC, and a great number of
grievances may go unaddressed.
 Ceremonial Figure: The NHRC is considered to be a place for judges to go to,
once they retire, or feel their tenure as judges ending soon, and is commonly
treated as a post-retirement platform for judges, officers and bureaucrats. Further,
the inadequacy of funds delegated to its functioning, also severely compromises
its activities.
 Other Limitations: In addition to all the above mentioned limitations, the
majority of the Commission comprises judges of the Supreme Court and the High
Court, which gives the NHRC a more judicial and legal touch. The lack of human
right experts and civil liberty experts is concerning, and can cause problems in
judgement of certain inquiries. Further, its functioning is bureaucratic, as most of
the members in it are there due to their political clout.

Controversy regarding the Commission

In being called ‘toothless tiger’ and ‘India’s teasing illusion’, the NHRC has faced a great
deal of criticism and backlash from the citizens and government authorities of India. In
regards to the composition and membership of the Commission, various happenings have led
to controversies regarding the same, which in turn affects the working of the NHRC.

In 1999, a journalist by the name of Shivani Bhatnagar was murdered, which led to a the
outcry of a scandal as the person charged with her murder was an IPS officer, Ravi Sharma.
This case implicating a high-ranking officer was reported to the NHRC, but was rejected on
no explicit grounds. This rejection of a case with clear disregard for human life, brought up
varied questions on the working and existence of the NHRC. The NHRC was termed as
‘useless’ and ‘not adept’ to handle situations of sensitive government matters.

Another ruckus was created, when the Chairman of the NHRC, the then Chief Justice of
India in 2011, was implicated of owning assets disproportionate to his income. K.G.
Balakrishnan J, was questioned and was asked to resign by many well
 lOMoARcPSD|25951372

known jurists and judges of the Apex and other high courts. Further, his son, in the face of all
the criticism, had to resign from his political party.

Recommendations
In order to make NHRC more effective, its powers could be increased in various ways to
increase its effectiveness and efficiency in delivering justice to the victims. The commission
should be empowered to provide interim and immediate relief including monetary relief to
the victim. In addition, the commission should be empowered to punish the violators of
human rights, which may act as deterrent to such acts in the future. The interference of the
government and other authorities in the working of commission should be minimum, as it
may influence the working of commission. Therefore, the NHRC should be given power to
investigate into the cases related to human rights violation by the members of the armed
forces.

 There is a need for complete revamping of NHRC to make it more effective and
truly a watchdog of human right violations in the country.
 NHRC efficacy can be enhanced by the government if commission
decisions are made enforceable.
 There is a need to change the composition of commission by including
members from civil society and activists.
 NHRC needs to develop an independent cadre of staff with appropriate
experience.
 Many laws in India are very old and archaic in nature by amending which
government can bring more transparency in regulations.
 To improve and strengthen the human rights situation in India, state and non
state actors need to work in tandem.
 More powers: Its decisions should be made enforceable by the government.
The efficacy of commissions will be greatly enhanced if their decisions are
made enforceable by the government.
 Armed forces: The definition should be restricted to only army, navy, and air
force. Further, even in these cases the Commission should be allowed to
independently investigate cases of violation of rights.
 Commission’s membership: Members of NHRCs should include civil
society, human rights activists, etc. rather than ex-bureaucrats.
 Amending law: Misuse of laws by the law enforcing agencies is often the root
cause of human right violations. So, the weakness of laws should be removed
and those laws should be amended or repealed if they run contrary to human
rights.
 Independent Staff: NHRC should have its independent investigating staff
recruited by itself, rather than the present practice of deputation.
In making the NHRC more effective, the powers granted to it could be increased in various
ways to increase its effectiveness and efficiency in the process of delivering
 lOMoARcPSD|25951372

justice to the victims of human rights violations. The NHRC needs to be empowered and
liberated from bureaucratic and political control in order to effectively discharge its duties. It
needs to have the liberty of being able to make decisions that have a concrete and material
impact to the situation. Making it an independent organ, with more powers and a louder voice
in the bigger picture, would strikingly change the working of the nation, and give it an
international impetus.

7. DISCUSS THE CONVENTION OF HUMAN RIGHTS ON RIGHTS OF

CHILDREN. ANS-
The United Nations concern for the right of child had begun since 1946 when the temporary
social commission of the Economic and Social Council insisted that the Geneva Declaration
of 1924 made under the League of Nations should be binding on the peoples of the world
even after the end of Second World War. The five points which were adopted in the form of
Geneva Declaration of 1924 are as follows:

(i) The child must be given the means requisite for its normal
development, both materially and spiritually.
ii) The child that is hungry must be fed, the child that is sick must be helped, the
child that is backward must be helped, the delinquent child must be reclaimed and
the orphan and the waif must be sheltered and succoured.

(iii) The child must be first to receive relief in time of distress.,

(iv) The child must be put in a position to earn a livelihood and must be
protected against every form of exploitation.

(v) The child must be brought up in the consciousness that its talents must be
devoted to service of its fellow men.

The 1959 Declaration on the Rights of Child On the basis of the abovementioned
five points of the temporary Social Commission adopted in 1950 a Declaration on
the Right of Child, the General Assembly adopted a Declaration on the Right of
child, which contains following ten points:
 lOMoARcPSD|25951372

(1) The child shall enjoy all the rights set forth in this declaration. All children,
without any exception whatsoever, shall be entitled to these rights, without
distinction or discrimination on account of race, colour. sex, language, religion,
political or other opinion. national or social origin, property, birth or other status
whether of himself or of his own family.

(2) The child shall enjoy special protection and shall be given opportunities and
facilities by law and other means to enable him to develop physically, mentally,
morally, spiritually and socially in a healthy and normal manner and in the
condition of freedom and dignity. In the enactment of laws for this purpose, the
best interests of the child shall be the paramount consideration.

(3) The child shall be entitled from his birth to a name and nationality. (4) The
child shall enjoy the benefits of social security. He shall be entitled to grow and
develop in health, to this end special care and protection shall be provided both to
him and to his mother including adequate pre-natal and post-natal care. The child
shall have the right to adequate autrition, housing recreation and medical services.

(5) The child who is physically, mentally or socially handicapped shall be given
the special treatment, education and care required by the particular condition.

(6) The hild, for the full and harmonious development of his personality, needs
love and understanding. He shall wherever. possible grow up in the care and
under the responsibility of his pants and in any case in an atmosphere of affection
and a moral anu material security. A child of tender years shall not, save in
exceptional circumstances, be separated from his mother. Society and public
authorities shall have the duty to extend particular care to children without a
family and to those without means of support. Payment from state and other
assistance towards the maintenance of children of large families is desirable.

(7) The child is entitled to education, which shall be free and compulsory, at
least in the elementary stages. He shall be given an education which will
promote his general culture and enable him on a basis of equal opportunity to
develop his abilities. his individual judgment, and his sense of moral and social
responsibility and to become a useful member of the society.
 lOMoARcPSD|25951372

The best interests of the child shall be the guiding principle of those responsible
for his education and guidance, that responsibility lies in the first place with his
parents.

The child shall have full opportunity for play and recreation, which should be
directed to the some purposes as education, society and the public authorities
shall endeavour to promote the enjoyment of this right.
(8) The child shall in all circumstances be among the first to receive
protection and relief.

(9) The child shall be protected against all forms of neglect cruelty and
exploitation. He shall not be subject of traffic in any form. The child shall not
be admitted to employment before an approxiate minimum age. He shall
occupation or employment which would prejudice his health or education, or
interfere with his physical, mental or moral development.

(10) The child shall be protected from practice which may foster racial, religious
and any other form of discrimination. He shall be brought up in a spirit of
understanding tolerance, friendship among peoples. peace and universal
consciousness that his energy and talents should be directed to the service of his
fellow-men.

The General Assembly decided on 21st December, 1976 to observe the year 1979
to be the international year of the child.

8. WRITE ABOUT ELIMINATION OF RACIAL DISCRIMINATION.

ANS-
In numerous pieces of the world, the legislative issues of fault and dread are on the ascent.
Prejudice, scorn, and separation are causing an ever-broadening break in social orders. The
governmental issue of dread is dividing individuals as pioneers hawk harmful manner of
speaking, accusing certain gatherings of individuals for social or monetary issues.

A few governments attempted to strengthen their capacity and business as usual by

transparently supporting segregation for the sake of profound quality, religion, or belief
system. Separation can be solidified in the national law, in any event, when it violates global
law – for instance, the criminalization of premature birth which denies women, young
women, and pregnant individuals the wellbeing administrations just
 lOMoARcPSD|25951372

what they need. Certain gatherings can even be seen by the specialists as bound to be
criminal, basically for what their identity is, for example, being poor, indigenous, or dark.

The right to equality and non-discrimination was not readily acknowledged by the global
network. During the 1919 Paris Conference, held in the repercussions of the First World
War, Japan worked seriously to have the guidelines of racial fairness embedded in the
Covenant of the League of Nations. Although a larger part of eleven out of seventeen
individuals from the Conference Commission cast a ballot for the Japanese proposition,
President Wilson of the United States “out of nowhere announced from the seat that the
change had fizzled”.

Despite lively fights by a few representatives against this dismissal of the correction,
President Wilson demanded – to the incredible disillusionment of the Japanese assignment –
that the change had not been adopted. Logically, the League Covenant did not contain any
express reference to the standard of uniformity between the states. Progress was made, in
any case, during the elaboration of
the Charter of the United Nations after one more worldwide war of unspeakable
repulsiveness which had its beginning in purposeful and deliberately organized biased works
on grasping the whole State structures. The world could not, at this point ignore such
detestable practices and the danger to harmony that they spoke to.

Concept of discrimination
Regardless of remarkable advancement at the worldwide level in upgrading the lawful
security of people and gatherings of people against segregation, reports from all pieces of the
world affirm the way that prejudicial demonstrations and practices are not a memory from an
earlier time. Segregation is multifaceted and present in State or open structures as well as in
common society when all is said and done. To a more noteworthy or lesser degree,
segregation may, therefore, influence how individuals are treated in all circles of society, for
example, governmental issues, training, business, social and clinical administrations,
lodging, the prison framework, law authorization, and the organization of equity all in all.

Separation may have various causes and may influence individuals of various racial, ethnic,
national, or social beginnings, for example, networks of Asian or African source, Roma,
indigenous people groups, Aborigines, and individuals having a place with various positions.
It can likewise be focused on individuals of various social, phonetic, or strict causes, people
with handicaps or the older and, for example, people living with the HIV infection or with
AIDS.

Further, people might be oppressed due to their sexual direction or inclinations. Segregation
of dependent on sexual orientation is likewise typical regardless of the advancement made in
numerous nations. Laws despite everything exist which, inter Alia, deny women the option
to claim marital property, the option to acquire on an equivalent balance with men, and the
option to work and travel without the consent of their spouses. women are likewise
especially inclined to savage and oppressive
 lOMoARcPSD|25951372

practices, which proceed unabated in numerous nations, and they subsequently regularly
endure twofold segregation, both due to their race or root and because they are women.

A significant issue in this day and age is additionally the segregation to which various
individuals, particularly women and youngsters, are oppressed because they live in neediness
or extraordinary destitution. These conditions may drive them to move and have added to an
expansion in dealing with people, especially women and kids, who are additionally much of
the time exposed to physical limitations, savagery, and terrorizing.

Types of International discrimination

Racial and ethnic discrimination

Bigotry influences every nation on the planet. It deliberately denies individuals their full
human rights in light of their color, race, ethnicity, drops (counting position), or national
source. Prejudice unchecked can fuel huge scope outrages, for example, the 1994 slaughter in
Rwanda and all the more as of late, politically sanctioned racial segregation and ethnic
purging of the Rohingya individuals in Myanmar. In India, individuals from the Dalit people
are focused, by individuals from prevailing positions, for a scope of human rights mishandle
These violations, which incorporate assaults, killings, and the pulverization of their homes,
regularly go uninvestigated by the police in light of unfair mentalities that don’t pay attention
to wrongdoings against details.

Discrimination against non-nationals, sometimes known as xenophobia

The oppression of non-nationals is as often as possible dependent on prejudice or thoughts of

predominance and is regularly fuelled by legislators searching for substitutes for social or
monetary issues in a nation.

Since 2008, South Africa has encountered a few flare-ups of savagery against evacuees,
refuge searchers, and transients from other African nations, including killings, and
plundering or consuming of shops and organizations. On certain occasions, the savagery has
been aggravated by the despise-filled way of talking of government officials who have
wrongly named remote nationals as “lawbreakers” and blamed them for troubling the
framework.

Separation has likewise been an element of the reaction of specialists to outcasts and haven
searchers in different pieces of the world. Numerous individuals in nations accepting outcasts
and shelter searchers see the circumstance as an emergency with pioneers and lawmakers
misusing these apprehensions by promising, and now and again sanctioning, damaging, and
unlawful approaches.
 lOMoARcPSD|25951372

For example, Hungary passed a package of punitive laws in 2018, which target groups that
the government has identified as supporting refugees and migrants. The authorities have also
subjected refugees and asylum seekers to violent push-backs and ill-treatment and imposed
arbitrary detention on those attempting to enter Hungarian territory.

Discrimination against lesbian, gay, bisexual, transgender, and intersex

(LGBTI) people

Wherever on the planet, individuals face segregation given whom they love, what their
identity is pulled into, and what their identity is. Lesbian, gay, indiscriminate, transgender,
and intersex (LGBTI) individuals hazard being unreasonably rewarded in all parts of their
lives, regardless of whether it’s in training, work, lodging, or access to social insurance, and
they may confront badgering and viciousness.

It is very troublesome, and by and large, unthinkable for LGBTI individuals to carry on with
their lives openly and look for equity for mishandles when the laws are not on their side. In
any event, when they are, there is a solid disgrace and generalization of LGBTI personalities
that keep them from carrying on with their lives as equivalent citizenry or getting to rights
and opportunities that are accessible to other people.
That is the reason LGBTI activists crusade tenaciously for their privileges: regardless of
whether it’s to be liberated from separation to adore whom they need, have their sexual
orientation lawfully perceived, or simply be shielded from the danger of attack and
badgering.

Gender discrimination

In numerous nations, in all areas of the world, laws, arrangements, customs, and convictions
exist that deny women and young women their privileges.

By law, women can’t dress as they like (Saudi Arabia, Iran) or work around evening time
(Madagascar), or apply for a line of credit without their significant cause (Equatorial Guinea).
In numerous nations, prejudicial laws place limits on a woman’s entitlement to separate, own
property, practice power over her own body and appreciate assurance from provocation.

In the progressing fight for equity, a huge number of women and young women riot to
guarantee their human rights and request sexual orientation correspondence. In the USA,
Europe, and Japan, women challenged sexism and maltreatment as a feature of the #MeToo
walks. In Argentina, Ireland, and Poland, women showed to request a stop to harsh
premature birth laws. In Saudi Arabia, they required a conclusion to the driving boycott, and
in Iran, they requested a conclusion to constrain the hijab (veiling).
 lOMoARcPSD|25951372

Everywhere throughout the world, women and young women have been at the cutting edge
of change requests.

However, despite the stratospheric ascent of women’s activism, the obvious reality remains
that numerous legislatures around the globe transparently bolster approaches, laws, and
customs that oppress and smother women.

Constituents of international discrimination

1. Caste: Discrimination dependent on work and plunge (additionally alluded to as

standing segregation) is broad across Asia and Africa, influencing more than 260
million individuals, incorporating those in the diaspora. Attributable to their
introduction to the world character, individuals from these networks are socially
avoided, financially denied, and exposed to physical and mental maltreatment.
Segregation dependent on work and drop is profoundly established in the public
arena, it shows itself in regular day to day existences, in singular discernments to
culture and customs, in social and monetary structures, in training and business,
and in access to administrations, openings, assets, and the market.
2. Disability: As numerous as 1 of every 10 individuals around the globe live with
an incapacity. However, in numerous social orders, individuals with handicaps
must wrestle with disgrace, being alienated and rewarded as objects of pity or
fear. Developing nations are home to around 80 percent of individuals with
disabilities. The dominant part of individuals with disabilities – 82 percent – lives
underneath the neediness line.
Women who are handicapped are sometimes bound to experience physical and
sexual maltreatment than women without disabilities. In Kazakhstan, current
laws imply that a vast number of individuals with psychosocial and scholarly
incapacities have been declared “unfit” by law and put under the watchful eye of
a watchman. Under this framework, they cannot practice their privileges and
can’t challenge the choice in court.
3. The show on human rights consolidates “terms and state of work” including wages
and focal points, and it bars partition, it is described as “any separation, shirking,
or tendency … which has the effect of discrediting or debilitating value of
possibility or treatment in business or occupation.” There are seven prohibited
explanation behind isolation:

 race,
 concealing,
 sex,
 religion,
 political inclination,
 national extraction, and
 lOMoARcPSD|25951372

 social commencement.
The comprehension of all of these grounds, similarly to various terms of the show, is
discussed in detail in the 1996 ILO Committee of Experts General Survey on Equality in
Employment and Occupation. The 2003 overall report under
the Declaration on Fundamental Principles and Rights at Work, Time for Equality at Work,
moreover looks at the significance of division in business and the various structures that it
can take. The report underlines that the ILO definition joins prompt similarly as unusual
wellsprings of partition and that an arrangement to isolate isn’t essential to find that trouble
exists (International Labor Organization, 2003).

Laws to tackle International discrimination

 International Labour Organisation Discrimination (Employment and

Occupation) Convention (No. 111) (1958) obliges Australia to ensure that
workers are not discriminated against in employment.
 UNESCO Convention Against Discrimination in Education (1960) prohibits
discrimination in education based on race and other factors and obliges Australia
to apply policies that promote equality of opportunity and treatment.
 International Convention on the Elimination of All Forms of Racial
Discrimination (1965) obliges Australia to eliminate racial discrimination and
promote understanding among all races, including in education and training.
 International Covenant on Economic, Social, and Cultural
Rights (1966) guarantees rights concerning an individual’s economic and social
circumstances and their right to participate in the nation’s cultural life. Article 13
obliges Australia to recognize that education is a right irrespective of race and
that education shall strengthen respect for human rights and fundamental
freedoms. Further, education shall enable all people to participate effectively in a
free society, and promote understanding, tolerance, and friendship among racial,
ethnic, and religious groups.
 International Covenant on Civil and Political Rights (1966) obliges Australia to
respect a range of rights dealing with government and civic life such as the right to
life, the right to vote, and the right to equality before the law. These standards
inform the rights component of civics education. Importantly, Article 26 states that
persons are equal before the law. Further, the law should prohibit discrimination
and guarantee to all persons equal and effective protection against discrimination
on the ground of race.
 Convention on the Rights of the Child (1989) obliges Australia to ensure a
child’s right to education irrespective of race.
 First Optional Protocol to the International Covenant on Civil and Political Rights
(1991) allows individuals to lodge complaints with the United Nations Human
Rights Committee for alleged breaches of the International
 lOMoARcPSD|25951372

Covenant on Civil and Political Rights when all Australian remedies have been
exhausted.

The declarations which relate to these issues include

 Declaration on the Elimination of All Forms of Racial

Discrimination (1963) advocates the elimination of racial discrimination in all
areas of public life including education.
 Declaration on the Promotion among Youth of the Ideals of Peace, Mutual
Respect and Understanding between Peoples (1965) advocates that young people
shall be brought up with the knowledge of dignity and equality of all men,
without distinction as to race, color, ethnic origins or beliefs, and in respect for
fundamental human rights and the right of self- determination of people.
 UNESCO Declaration on Fundamental Principles concerning the Contribution
of the Mass Media to Strengthening Peace and International Understanding, to
the Promotion of Human Rights and to Countering Racialism, Apartheid and
Incitement to War (1978) deals with the role of the mass media in countering
racism in the media.
 UNESCO Declaration on Race and Racial Prejudice (1978) deals with the rights
of people to maintain and develop distinct cultural identities.
 Declaration on the Elimination of All Forms of Intolerance and Discrimination
Based on Religion or Belief (1981) deals with the elimination of discrimination
and the protection of the rights of people’s religious beliefs.
 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
or Linguistic Minorities (1992) deals with the elimination of discrimination and
the protection of the rights of people of certain minority groups.
 The United Nations is currently working on a declaration on indigenous
people.

Need for a stringent law to tackle the problem

There is a requirement for a law that investigates the accompanying issues:

 Not to take part in any demonstration or practice of racial victimization of the

people, gatherings of people, or organizations, and to guarantee that open
specialists and foundations do in like manner.
 Not to support, safeguard or bolster racial separation by any people or
associations.
 To survey government, national and neighborhood strategies, and alter or repeal
laws and guideline which make or propagate racial segregation.
 lOMoARcPSD|25951372

 To disallow and end racial separation by people, gatherings, and

associations.
 To deny associations and promulgation that advance racial predominance, racial
contempt, racial savagery, or racial segregation (Australia in any case, has
presented a booking to this prerequisite and isn’t completely limited by it).
 To guarantee compelling assurance and solutions for survivors of racial
segregation.
 To take extraordinary measures, as important, to guarantee that hindered racial.
gatherings have full and equivalent access to human rights and essential
opportunities.
 To battle partialities that lead to racial segregation, and wipe out the
hindrances between races, using training and data, and by empowering
integrationist or multiracial associations and developments.

Civil and political rights in particular

 Equivalent treatment under the steady gaze of the courts;

 Security by the Government against brutality or substantial mischief;
 Right to support in decisions and to partake in the Government just as in the lead
of open issues at any level and to have equivalent access to open assistance;
 The opportunity of development and habitation;
 Option to possess property alone just as in relationship with others;
 Right to the opportunity of thought, soul, religion assessment, and
articulation and tranquil gathering and affiliation.

Economic, social and cultural rights, in particular, rights to:

 Work;
 Housing;
 Public health, medical care, social security, and social services;
 Education and training;
 Equal participation in cultural activities;
 Access to any place or service intended for use by the general public.

Conclusion
 lOMoARcPSD|25951372

Among the best accomplishments of the United Nations is the improvement of a collection
of worldwide law, which is integral to advancing financial and social turn of events, just as
to propel global harmony and security. Global law is cherished in shows, settlements, and
principles. A significant number of the arrangements realized by the United Nations structure
the premise of the law that oversees the relations among countries. While being crafted by
the UN is not enough, what matters is its application in the daily life of citizens. Still, a great
deal should be done to arrive at an objective of congruity, harmony, and value around the
world.

9. WRITE ABOUT RACIAL DISCRIMINATION IN

INDIA. ANS-
Racial discrimination includes discrimination on the basis of ancestry or physical or cultural
characteristics associated with a certain race, such as skin colour, hair texture or styles, or
certain facial features. Racial separation is a conviction of prevalence of one race over
another, which regularly offer ascent to segregation and bias towards individuals in view of
their race or ethnicity. Today, in the dynamic culture the expression “prejudice” does not
effortlessly fall under a solitary definition. Racial segregation happens when a man is dealt
with less positively, or not given the equivalent open doors, as others in a comparative
circumstance, as a result of their race, the nation where they were conceived, their ethnic
starting point or their skin shading.

Racial Discrimination in India

According to the World Values Survey, the second most racist country is India, where people
from other countries are treated differently by some Indian people, based both on skin colour
and country of origin. African people are especially affected by racism in India, denied living
accommodations and even attacked and killed. In India, prejudice is honed in a few quarters
and by a few Indians. This is clear in the way in which we are dealt with when we look for
augmentation for our visas, in the issues we look in getting a settlement in the nation, and in
the general treatment of survey us with doubt. The bias and generalizations are very obvious.
When we look for convenience, most landowners turn out with an insistent ‘no’ without
offering any clarification. We are left with minimal decision and manage with what we get.
We are looked at a circumstance where we can’t speak with our neighbours And all that is
just because of racial discrimination practised in India.

Filing a police complaint

 lOMoARcPSD|25951372

In case you are the victim of a cognizable offence, the first step you would take is to approach
the police. A detailed procedure for filing criminal complaints has been laid down in India, as
per the Criminal Procedure Code.

 File an FIR (First Information Report) at the police station, which is a written
document prepared by the police on receiving information of the crime.
 The police have a duty to hear the aggrieved and direct him to the District
Magistrate for further action.
 FIR can be filed if you are the person against whom the crime has been committed
or if you know about an offence that has been committed.
 There are no charges for filing an FIR, it is an essential document that sets the
criminal justice in process

Making a complaint with an NGO working against racial discrimination

There are many NGO’s in India which works against racial discrimination and protect the
interest of the victims who face racism in India. Anyone who is a victim or a representative of
a victim can complain to an NGO against the same. A benefit of making a complaint to an
NGO is that it does not charge any fee for resolving the issue of racism which will encourage
the poor and needy to make a complaint who usually never file a complaint in a legal
procedure as that would cost a lot for them.

There are online complaint forms on the sites of the NGOs which a victim can file and the
can give a detail description of the incident without any hesitation as the NGOs maintain
secrecy. The online, as well as offline forms for making complaint, contain certain details
which are necessary to be filled in for complaining against Racism;

 Complainant details
 Victim’s details
 Incident details
 Relief details
The advantage of making a complaint to an NGO will save time and money that is wasted in
the legal procedure and will resolve the matter speedily and also reduce the pressure on
courts.

Different shades of racism in India

Unlike what politicians think racism is not always about the colour factor racism, there are
many kinds of racial discrimination practised in India even today like —
 lOMoARcPSD|25951372

skin colour, shape of lips, hair, etc. However, it is also true that skin colour became a
dominant factor from the 18th century onwards.

In a country as diverse and varied as India, Awareness about all cultures and regions is not
possible at all. This ignorance gives rise to racial discrimination, it can have grave
consequences. Private Member Bill introduced in Parliament hopes to get rid of some of
this ignorance by raising awareness about the culture, history, and traditions of Northeast
India. This bill focuses on the compulsory teaching of North- East culture in Educational
Institutions’, which was introduced by the Member of Parliament from Arunachal Pradesh,
Ninong Ering, This bill is a big step towards overcoming the obstacles of racial
discrimination by introducing the study of Northeast culture at the school level.

Types of Racial Discrimination in India

Direct discrimination: This happens when somebody treats you more regrettable than
someone else in a comparable circumstance in view of your race.

For illustration – if a letting organization would not let a level to you in view of your race,
this would be immediate race separation

Indirect discrimination: This happens when an association has a specific approach or

method for working that puts individuals of your racial gathering at a disadvantage.

For illustration – a hairdresser declines to appoint as a stylist that cover their own particular
hair. This would put any Muslim ladies or Sikh men who cover their hair off guard while
applying for a position as a stylist.

In some cases, indirect race segregation can be allowed if the association or manager can
show to demonstrate that there is a justifiable reason purpose behind the separation. This is
known as target support.

In case, a Somalian refugee searcher tries to open a ledger however the bank expresses that so
as to be qualified you need to be occupant in the UK for a year and have a lasting location.
The Somalian man can’t open a ledger. The bank would need to demonstrate that its approach
was essential for business reasons, (for example, to avoid misrepresentation) and that there
was no viable option.

Harassment: Harassment happens when somebody makes you feel humiliated, annoyed or
corrupted.

For illustration – a youthful British Asian man at work continues being known as a bigot
name by associates. His associates say it is simply chit-chat, yet the representative is offended
and humiliated by it. Provocation can never be legitimized.
 lOMoARcPSD|25951372

However if an association or boss can demonstrate that it did all that it could do to prevent
individuals who work in it, you won’t have the capacity to make a claim for harassment
against it.

Victimisation

This is the point at which you are treated very badly on the grounds that you have complained
about the racial discrimination faced under the Equality To act or likewise happen in the case
when you are supporting somebody who has made a protest of race-related separation.

For illustration – the young fellow in the case above needs to make a formal protestation
about his treatment. His chief debilitates to sack him unless he drops the objection.

Current status of racism law in India

The Home Ministry proposes to include a provision in Section 153(A) of the Indian Penal
Code.

 As of late, Shashi Tharoor, MP, presented the Anti-Discrimination and Equality

Bill 2016. The law delivers the need to secure everybody who is liable to all types
of out of line separation under a solitary extensive enactment which ought to be
nonpartisan and free from inclination. The bill manages direct separation and
indirect separation, badgering, isolation, biased brutality, exploitation. The focal
government is yet to send the Bill to a parliamentary standing board of trustees for
a more extensive open interview and investigation and get ready for its institution.
 In 2015, the Ministry of Home Affairs had asked the Delhi High Court to present
two new sections which will control racial discrimination.
This section was first added in the Code by the Indian Penal Code (Amendment) Act, 1898
with a view to deal with certain other matters relating to breach of public tranquillity which
was not covered in the original Indian Penal Code. The jurisdiction of this Section 153(A) is
widened so as to make the promotion of disharmony, enmity or feelings of hatred or ill-will
between different religious, racial, language or regional groups or castes or communities
punishable. The offence on moral turpitude is also covered in this section. The offence is a
cognizable offence and the punishment for the same may extend to three years, or with fine,
or with both. However, the punishment of the offence committed in a place of worship is
enhanced up to five years and fine.

Anti-Discrimination and Equality Bill, 2016

 lOMoARcPSD|25951372

Anti Discrimination and Equality bill is made to ensure equality to every citizen of the
country by providing protection against all forms of social discrimination. This Act may be
called the Anti-Discrimination and Equality Act, 2016.

Making a complaint under this act

A complaint under this Act can be made by:

 Any aggrieved person

 If the aggrieved or distressed person is deceased, his near relative, including any
unmarried or cohabiting spouse or partner or any person to whom the deceased had
the intention to marry or enter into a romantic or sexual relationship.
 An organisation which may represent the aggrieved person on his/her consent.
 Where there exist more than one aggrieved or distressed person having the same
interest, any of them acting on behalf of or for the benefit of all of them.
Provided that no complaint shall be entertained unless permitted by the Central Equality
Commission or the State Equality Commission, which shall not give its permission unless it
has taken reasonable measures to notify, either directly or through a notification in at least
two local newspapers, all aggrieved persons or as many of them as is possible to do so And
any person making a false complaint against a member of a disadvantaged or minority group
under this Act shall be liable to pay exemplary/punitive damages to the person against whom
the false complaint was made.

Interim relief for racial behaviour practised in India

If a prima facie (on the face of it) case of the breach of any duty imposed by this Act is made
out in the submissions of the plaintiff, the State Equality Commission may order appropriate
interim relief in favour of the plaintiff.

Provided that such interim relief should not be of a nature that is likely to cause serious
prejudice to the respondent.

 Interim relief may be granted ex parte (without even listening to the other side of
the case) if warranted by the circumstances of the case.
 Interim relief may include a protection order of the nature specified in sub- section
(7) of section 33.

Jurisdiction
 lOMoARcPSD|25951372

 Any court may grant relief under this act affecting the parties to the proceedings,
in addition to any other relief may be sought in such proceedings.
 Any judgement made under this Act shall be enforceable at any place, even if that
place falls outside the jurisdiction of the Commission that made such order.
Jurisdiction of High Court

The High Court has original jurisdiction so as to ultra vires between this Act and any other
law in force. Any person who is aggrieved by any judgement of the Central or the State
Equality Commission can file an appeal against the order of the High Court within whose
jurisdiction the said Commission is located within forty-five days from the date on which the
order was served upon to him.

What if a School/university discriminate on racial grounds?

 You should first file a report to your local police as it is the violation of
fundamental rights under article 15 of the Indian constitution Article 15(1) of
the Constitution sets out that the State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them and the
school or university would be liable for the same. Make sure the officer assigns a
case number and take down any other relevant info, including the officer’s name.
 You can file an online complaint to request the Department of Education to
investigate any incidents.
 The police will investigate the matter and then direct the case to the district court
as required.
This is not just a frustrating issue to deal with but it’s a very scary one. Racism is a pervasive,
troubling issue that we won’t solve with a single complaint or conversation, but there are
resources out there, and when it’s time to use them, you want to know where to turn.
Discrimination on racial grounds in schools hampers the education of the students and will
ultimately hamper the growth of the country.

Restaurants/Cinemas discriminating on racial grounds

People are facing a lot of racism in restaurants, cinemas and many more public places even
today.

Globally, most public and private spaces such as bars, cinema halls, and malls keep “rights of
admission reserved.” This is apparently done to shun lawbreakers. In India, however, this is
also a tool to maintain the class-exclusivity of the premises. People think only standard and
well-dressed people should be allowed in their restaurants etc to maintain its standard and
class. However, eateries cannot discriminate as long as they are getting paid.
 lOMoARcPSD|25951372

Besides, under Article 15(2) of the Indian constitution prohibits restriction of any citizen on
grounds of religion, race, caste, sex or place of birth, from accessing shops, public
restaurants, hotels, and places of public entertainment.

10. DISCUSS ABOUT ABOLITION OF DEATH

PENALTY. ANS-
The ICCPR encourages states to move towards total abolition of the death penalty. The
Human Rights Committee has said that the ICCPR ‘strongly suggest[s] that abolition is
desirable’.However, Article 6 does not make abolition mandatory under international law.
Despite the lack of such a mandatory requirement, movement towards abolishing the death
penalty worldwide has been increasing rapidly in the last sixty years22, particularly since the
United Nations Declaration on Human Rights. At the beginning of the 20th century, only
Costa Rica, San Marino and Venezuela had permanently abolished the death penalty.
At the current time, 133 countries have abolished the death penalty in law or in practice. The
first international treaty to limit the death penalty was the 1929 Geneva Convention, which
restricted it as a penalty on prisoners of war taken in armed [Link] absence of such a
prohibition from the ICCPR is explained by leading death penalty expert Professor William
Schabas, who claims that the ICCPR’s goal was abolition, but it was not made mandatory due
to ‘the prudence of its drafters, aware of its anomaly but fearful of alienating retentionist
States and discouraging them from ratification’.
Public support for abolishing the death penalty gained ground following the huge loss of
life in the Second World War, and numerous states began to move towards abolition. In the
1980s, three international instruments completely abolishing the death penalty were drafted.
At great speed, the world moved towards ending capital punishment, and abolitionist states
outnumbered retentionist states as early as the mid-1990s. Progress continues to this day,
with an average of three countries per year abolishing the death penalty throughout the last
decade.
The issue of the death penalty has clearly moved firmly into the human rights arena, and is no
longer accepted as simply a national criminal justice policy issue. It has been argued that the
exclusion of the death penalty by the international courts for the most heinous crimes
imaginable suggests that there is now no crime serious enough to warrant the death penalty.
One example of the way in which the movement towards abolition has been growing is
evident in the Human Rights Committee’s consideration of the responsibilities of abolitionist
states in extradition and deportation cases. In a 2003 landmark decision, the Human Rights
Committee held that Canada was obliged to ensure that the death penalty would not be
carried out on a proposed deportee.
 lOMoARcPSD|25951372

In this decision, the Human Rights Committee stated: For countries that have abolished the
death penalty, there is an obligation not to expose a person to the real risk of its application.
Thus, they may not remove, either by deportation or extradition, individuals from their
jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without
ensuring that the death sentence will not be carried out.
This was a departure from the previous position of the Committee, which had allowed such
extraditions and deportations to take place. In moving from its earlier position, the
Committee stated: Since that time there has been a broadening international consensus in
favour of abolition of the death penalty, and in states which have retained the death penalty,
a broadening consensus not to carry it out…The Committee considers that the Covenant
should be interpreted as a living instrument and the rights protected under it should be
applied in context and in the light of present-day conditions.
While Human Rights Committee decisions are not binding, this decision supports the
assertion that the human rights discourse surrounding the death penalty is expanding. It is
highly likely that, eventually, international customary law will view the death penalty as a
breach of the right to life, the prohibition against torture, and the right not to be subjected to
cruel, inhuman or degrading treatment.
The Abolitionist Argument
States abolish the death penalty for a variety of reasons. However, human rights discourse
regularly plays a role. When Spain adopted abolition in 1995, it stated that ‘the death penalty
has no place in the general penal system of advanced, civilised societies…what more
degrading or afflictive punishment can be imagined than to deprive a person of his life?’
When the Constitutional Court of South Africa held the death penalty to be unconstitutional,
Justice Chaskalson said that ‘The rights to life and dignity are the most important of all
human rights…and this must be demonstrated by the State in everything that it does,
including the way it punishes criminals.’
Many of the states entering the European Union have abolished the death penalty as a
requirement of membership, rather than directly due to their own human rights concerns.
However, the EU’s strong human rights stance in this area cannot be ignored as the primary
reason behind the prohibition against the death penalty amongst members states. Following
abolition, most states increasingly move towards viewing the death penalty as a breach of
human rights, even if this was not the original reason behind its abolition and where public
opinion preferred retention at the time of abolition. This tendency is evident both at the
national leadership level and amongst members of the public
. Other states identify concerns not with the death penalty itself, but with the discriminatory
way that it tends to be imposed. In abolishing the death penalty, some states undertake a trial
moratorium on capital punishment, to see whether it results in any increase in crime. The
ensuing abolition in such cases is therefore partially due to the failure of the death penalty to
have a deterrent effect. In the US, much of
 lOMoARcPSD|25951372

the debate promoting the abolition of the death penalty focuses on the risk of executing the
innocent, as over 100 prisoners have been released from US death rows since 1973.
The Retentionist Argument Before considering the retentionist argument, it should be noted
that the number of retentionist countries imply a greater resistance to abolition than may
actually be the case. In 2007, 91% of all known executions took place in just 3% of the
world’s countries: China, Iran, Pakistan, Iraq, Sudan and the US, leaving 58 countries to
account for the remaining 9% of all [Link] total number of executions worldwide
has also been falling, from 2,148 in 2005 to 1,591 in 2006. The arguments in favour of
retaining the death penalty tend to fall into three camps: those who claim that it is a matter of
national sovereignty and is not related in any way to human rights law; those who claim that
it has a deterrent effect and is necessary for controlling crime; and those who claim that it is
required under their religion, and particularly in accordance with Islamic principles. China,
Singapore and some of the Caribbean states fall into the first category.
China has stated that ‘each country should decide whether to retain or abolish the death
sentence on the basis of its own actual circumstances and the aspirations of its people’.44
When Trinidad and Tobago withdrew from the American Convention on Human Rights, it
stated ‘the death penalty is not a human rights issue’.
Singapore made a similar statement during the negotiation of the Rome Statute for the
International Criminal Court. These claims, while in line with similar views throughout the
world held in the early to mid 20th century, do not fit with the widespread attitudes
throughout states, international organisations and leading thinkers that regard the death
penalty as very much a human rights issue.
Retentionist states often argue that the death penalty deters crime and prevents re- offences.
However, these claims are not supported by any recognised studies, and many countries that
adopt a moratorium prior to the final abolition of the death penalty find that the death penalty
does not have a deterrent effect in practice.
Islamic states also argue that the death penalty is required under Islamic law. However, this
position is not supported by a number of Islamic international lawyers, and apparently also by
some Islamic states that have abolished the death penalty.
While apostasy requires the death penalty (unlike other offences, where it is recommended
only), some Islamic scholars consider that this mandatory status was only where the person
had waged war against Allah and where their actions had resulted in a homicide.
In addition, of the fifty countries in the world with a Muslim majority, only 32 (64%) retain
and impose capital punishment. In practice, it tends to be the least democratic and most
repressive states that retain and use the death penalty. Islamic law is also tempered by the
darura, the doctrine of necessity, which allows the Shari’a to be ignored when necessary
under the circumstances.48 It is arguable that the international environment is increasingly
creating such a necessity as the death penalty becomes unacceptable.
 lOMoARcPSD|25951372

HISTORICAL BACKGROUND OF DEATH PENALTY IN INDIA:

Before independence from British rule, India rarely had any access to justice. Death penalties
were awarded according to the whims and beliefs of British rulers. In 1932, Babu Gaya
Prasad Singh, who was an elected member from Bihar in the Central Legislative Assembly,
demanded a bill to abolish the death penalty for offences under the Indian Penal Code
(official criminal code of India that covers all the aspects of criminal law). The motion for
circulation was defeated. After a few days, on March 24, 1931, three freedom fighters,
Bhagat Singh, Rajguru and Sukhdev, were awarded death sentences for the Lahore
Conspiracy case (for boycotting the British Simon Commission and bombing the Delhi
Assembly). Later that year, Congress demanded the abolition of the death penalty. However,
it remained unchanged.

During 1947 and 1949, the Constituent Assembly debated the existence of the death sentence
and Baba Sahib Ambedkar (the Father of Indian Constitution) left the final decision to be
made by parliament. However, he was not in favour of continuation of the penalty. He
believed India follows the principles of non-violence and having such a punishment defies
those principles.

Between 1952 and 1962, the death sentence punishment was discussed and debated in the
parliament numerous times and always rejected. Prithvi Raj Kapoor, a nominated member,
moved the first resolution in the year 1958. Fourteen MPs (Members of Parliament) took part
in the debate. While nine were in favour of India’s death penalty policy, only six members
favoured abolition.

The next resolution was moved in the Rajya Sabha by Savitri Devi Nigam in 1961. Nineteen
MPs took part in the debate and only six favoured abolitions of the death penalty. There have
been in-numerous cases where the death penalty has been debated in parliament.

In 2012, a medical student was gang-raped in a moving bus in the country’s capital Delhi.
Following the outrage, the government announced that the death penalty would be applicable
to those convicted of rape leading to death. Ram Singh, Mukesh Singh, Vinay Gupta, Pawan
Gupta, Akshay Thakur, and one juvenile were the culprits. In 2013, all of them were awarded
the death penalty, except the juvenile defendant. In 2015, the Rajya Sabha passed the
Juvenile Justice (Amendment) Bill, lowering the age of legally defined juvenile in case of
heinous crimes from eighteen to sixteen. Following this, the juvenile defendant in the case
was released.

ARGUMENTS FOR ABOLITION OF THE DEATH PENALTY:

India is a country with a lot of social disparity. Those without power, money and contacts are
unfairly targeted. The poor and marginalized communities and those whose voices are more
likely to go unheard often fall into the trap of judicial trials. Those who can afford private
lawyers rarely get to face the death sentence. Article
 lOMoARcPSD|25951372

21 of the Constitution of India guarantees the Right to Life as a fundamental right. This right
is defied by the death sentence.

According to the recent Death Penalty India Report by the National Law University, New
Delhi, the structural flaws in the criminal procedure and criminal justice system are
maximum in cases involving the death penalty. It is impossible to administer it rationally.
The final verdict depends on the philosophy and beliefs an individual follows. Judges who
oppose it never awarded a prisoner death sentence and the judges who favour it award it.
Also, Presidents who believe in abolition like S. Radhakrishnan and A.P.J. Abdul Kalam
refused to reject mercy pleas (when a person loses all the remedies available to him/her
under all the prevailing laws and the Constitutional Remedies, he/she is eligible to file a
Mercy Petition before the President of India or the Governor of the State in which the person
resides.), while others who favour the death penalty deny clemency (disposition to be
merciful and especially to moderate the severity of punishment due).

According to data published by the Centre on the Death Penalty in their Death Penalty
India Report for the period 2000-2015, it turned out that out of 1,486 prisoners sentenced
to death by trial courts, only seventy-three were confirmed. Also, one-third of those
sentenced were ultimately acquitted.

Delayed justice in the criminal justice system affects the prisoners who might not be guilty.
India is known for its high levels of corruption amongst government officials. The police are
also known for its inefficiency.

There has been no study conducted so far that has been able to prove that awarding death
sentence to prisoners rather than life imprisonment, reduces the rate of crimes in a society. It
does not reduce murders, rapes, terrorism, or even theft.

GLOBAL SCENARIO OF DEATH PENALTY:

In 2007, the United Nations proposed to all its member countries to put a stop on
awarding the death penalty for any kind of offence. This proposal was rejected by India
and several other countries like the US.

The World Coalition Against the Death Penalty observed October 10th as the World Day
Against the Death Penalty in 2003. It is supported by numerous non- government
organizations and world organizations including the European Union, United Nations, and
Amnesty International. Each year it focuses on a particular theme and highlights issues such
as living conditions, mental health, poverty, and drugs all around capital punishment.

The number of countries abolishing the death penalty has been increasing from 1991 to 2017.
According to Amnesty International 2017, 142 countries including Canada, Mexico,
Australia, Russia, South American nations, and most European nations have abolished the
death penalty in law or practice. They issued a moratorium (an agreement to suspend a policy
or action) for abolishing capital punishment.
 lOMoARcPSD|25951372

Seven countries permit the death sentence for serious crimes such as those during war
times. There are at least 29 countries, including Congo and Qatar, which have death
penalty laws but have not executed anyone for the last 10 years.

On the other hand, 59 countries including Saudi Arabia, the US, China, India, Pakistan, Iran,
etc. continue with the policy. Eighty-four per cent of executions in 2017 were carried out in
Saudi Arabia, Iraq, Iran, and Pakistan. China’s statistics continue to remain a secret but
Amnesty estimates that China carries out thousands of executions every year.

In the US last year, 23 people were executed. Washington banned the death penalty in 2018.
The Supreme Court found that the punishment was awarded in a racially biased manner.

ALTERNATIVES TO THE DEATH PENALTY:

Capital punishment is awarded in the most extreme cases of heinous crimes. These crimes
affect the society and hence, may evoke public outrage as in cases of terrorists being
awarded the death penalty. No one would want a serial killer, a rapist, or a terrorist to roam
freely out on the streets. The public would try to seek revenge for the loss of innocent lives.
If not death, they would demand life imprisonment punishment.

Life imprisonment without parole could be an alternative to the death penalty as the prisoner,
despite his/her good and changed behaviour, would not be released. Even if parole is given,
then it is usually after 25-30 years of imprisonment. After spending such a long period in
jail, the prisoner becomes old and fragile. After the prisoner’s release, the police must
monitor his/her actions. Additionally, before awarding parole, the offender should be
screened to assess if he/she is actually capable of reform. Community based mental health
education must be provided to the offender before awarding parole. Engagement of his/her
family members, drug abuse prevention programs, and counselling sessions must be
provided. Cultural and recreational programs, organization, life skills courses, training, and
anger management programs must be provided before release as well.

CONCLUSION

Statistics suggest that the crime rate in India has been declining continuously since 1991.
Activists continue to fight for human rights and the right to live and die with dignity
mentioned in the constitution. One does not rape a person to show that rape is wrong; the
same way of killing a person does not show that killing is wrong. In a way, the punishment
of the death penalty simply imitates the crime itself. According to an Amnesty International
study, most of the countries have abolished it. The punishment must be judged by its impact
on the innocent and not on the criminals.
 lOMoARcPSD|25951372

11. DISCUSS THE RELATIONSHIP BETWEEN PROTECTION OF HUMAN

RIGHTS AND INDIAN CONSTITUTION.
ANS-
Concept of Human Rights under Indian Constitution.-
Before the adoption of Indian Constitution, U.N. Charter had been adopted at San Francisco
on June 25, 1945 and came into force on October 24, 1945. India being a country who signed
and ratified the Charter; the Universal Declaration of Human Rights was adopted by the
General Assembly of the U.N. on 10th December, 1948.

India being an original member of the U.N. and a member State which voted for the adoption
of Universal Declaration of Human Rights on 10th December, 1948 could not be oblivious
of all these developments yet the Constitution of India is conspicuous by its absence of the
words 'human rights'. It is difficult to say whether this omission was deliberate or just
incidental.

Preamble. According to the Preamble of Indian Constitution, India is a "Sovereign, Socialist,

Secular and Democratic Republic." 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 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 out Constitu tion to emulate the example. Speaking about the said words of the preamble
of Indian Constitution, Bhagwati, J., while delivering the judgment in Dr. Pradeep Jain v.
Union of India, observed that they embody the hopes and aspirations of the people. It is
significant to note that the preamble emphasizes that the people who have given to
themselves the glorious document are the people of India and it gives expression to resolve
the people to constitute India into a sovereign, socialist, secular democratic republic, and to
promote amount all its citizens fraternity assuring the dignity of all the individual and unity
and integrity of the nation.

In order to appreciate the concept of human rights under Indian Constitu tion, it is also
pertinent to look to the aims and objects of the preamble, which are indeed the aims and
objects of Indian Constitution. The preamble reflects the high purposes and noble objectives
of the framers of the Constitution.
 lOMoARcPSD|25951372

Justice.-As pointed out in Kesavanand Bharati v. State of Kerala, the constitution as the
supreme law aims 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.

These objectives are directed and concretised into provisions of the Constitution. Article
38(1) provides that the State shall strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life.

It may be pertinent to make a brief mention of the distinction between Fundamental Rights
and Directive Principles of State Policy. While Funda mental Rights contained in Part III of
the Constitution are enforceable in courts. of law, Directive Principles of State Policy
contained in Part IV are not enforceable in any court. Article 37 of the Constitution makes it
clear by providing that the provisions contained in this part (i.e. Part IV of the Constitution)
shall not be enforceable by any court, but the principles laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to apply
these principle in making laws.

Liberty. The preamble of the Constitution of India seeks to secure to all its citizens. "Liberty
of thought and expression, belief, faith and worship." The liberty which the preamble seeks to
secure, can be classified into two catego ries-(a) Liberty of thought and expression; and (b)
Liberty of belief, faith and worship. The first category of liberty has been incorpcrated in
Article 19(1)(a) which declares that all citizens shall have the right to freedom of speech and
expression. But the liberty thus declared is not absolute. Article 19(2) provides that it is
subject to reasonable restrictions in the interest of the sovereignty and integrity of India.

The second category of Liberty viz. the Liberty of belief, faith and worship which has been
incorporated in Article 25(1). Article 25(1) guarantees that "subject to public order, morality
and 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". Thus this
category is also not absolute.

Equality. The third main objective of the Preamble is to secure to all citizens, Equality of
status and opportunity the concept of equality has been incorporated in Articles 14 to 18 of
the Constitution. Article 14 guarantees that "The State shall not deny to any person equality
before the law or equal protection of the laws within the territory of India."
 lOMoARcPSD|25951372

Fraternity. The fourth objective of the Preamble is "Fraternity assuring the dignity of the
individual and unity and integrity of the Nation. In view of the past history of the country the
idea of fraternity should have been given great importance but unfortunately this concept has
not been properly developed under the Constitution and there is no provision of the
Constitution which

directly incorporates this noble objective. Moreover, fraternity on the interna tional plan is
sought to be promoted though Article 51. The Indian Constitution bears the impact of the
Universal Declaration of Human Rights and this has been recognized by the Supreme Court
of India. While referring to the Fundamental Rights contained in Part III of the Constitution,
Sikri, C.J. of the Supreme Court, in Kesavanand Bharti
v. State of Kerala (AIR 1973 SC 1461) observed: "I am unable to hold these provisions
show that rights are not natural or inalievable rights. As a matter of fact, India was a party
to the Universal Declaration of Rights...............................................and that Declaration
describes some fundamental rights as inalienable." Earlier, in Golak Nath v. State of Punjab
(AIR 1967 SC 1643) the Supreme

Court observed : "Fundamental rights are the modern name for what have been traditionally
known as 'natural 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
framers of the Indian Constitution were influenced by the concept of Human Rights and
guaranteed most of Human Rights contained in the Universal Declaration. The Universal
Declaration of Human Rights contained civil and political as well as economic social and
cultural rights. While Civil and Political rights have been incorporated in Part III of Indian
Constitution, economic, social and cultural rights have been incorporated in Part IV of the
Constitution.
A perusal of Indian Constitution shows that human rights have been classified under Indian
Constitution into the following categories:
(1) Fundamental Rights and Rights to Freedom (Fundamental Freedoms);
(2) Civil and Political Right and Economic, Social and Cultural Rights;
(3) Human Rights for all and Human Rights for citizens only;
(4) Justiciable Human Rights and non-Justicable Human Rights; and
(5) Enumerated Human Rights and Unenumerated Human Rights.

1. Fundamental Rights and Rights to Freedom (Fundamental Freedoms).

 lOMoARcPSD|25951372

The Charter of the United Nations uses the term "human rights and fundamental freedoms" in
Article 13(1)(b), Article 55 and Article 76(c). The preamble of the Universal Declaration of
Human Rights also uses the term" "Human Rights and Fundamental Rights".

The distinction between "human rights" and 'fundamental freedoms' or right to freedom' has
not been clarified. The very title of European Convention is the European for the Protection
of Human Rights and Fundamental Freedoms (1950).

Probably taking the clue from the Universal Declaration of Human Rights (1948), Indian
Constitution has used the expression "Right to Freedom" in respect of the Fundamental
Rights contained in Article 19, Articles 25, 26, 27 and 28 whereas the term 'right' has been
referred in respect of other fundamen tal freedoms. As in the case of international
instruments concerning human rights, in the Constitution of India has also not laid down any
test for dividing human rights, into categories of 'rights' and 'right to freedom'.

2. Civil and Political Rights and Economic, Social and Cultural Rights.-A distinction
between civil and political rights on the one hand, and economic, social and cultural rights
has always been maintained. While civil and political rights are recognized as the traditional
rights of the individual against the State and are based on the laissez faire doctrine of non-
interference, the position of economic, social and cultural rights is different. They are
relatively a later growth and are not based on non-interference of the State.

The object of directive principles is to establish a welfare State. It has been pointed out that
there are two aspects of the Directive Principles-(i) The negative aspect; and
(ii) the positive aspect. As part of the negative aspect it is emphasized that the violation of a
directive principle does not entitle a citizen to seek mandatory relief against the State. For
example, in Kesavananda Bharati v. State of Kerala, Sikri, C.J. observed that directive
principles are not justiciable and cannot be enforced by any court.

3. Human Rights for all Human Rights for citizens only. The Univer sal Declaration of
Human Rights proclaims the Human Right and Fundamental Freedoms for everyone' and
distinction, is made between a person' and a 'citizen'. The same pattern is followed by the
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
and through out the Convention the terms 'everyone' and 'no one' have been used.
 lOMoARcPSD|25951372

The Indian Constitution has classified Fundamental Rights into two categories (i)
Fundamental Rights which are available to citizens only and (ii) Fundamental Rights
available to all persons residing within the territory of India for the time being and subject to
its jurisdiction.

4. Justiciable and Non-Justiciable Human Rights and Relative Impor tance of Parts III and
IV. Yet another classification made under Indian Constitution is that of justiciable and non-
justiciable human rights and it has been briefly referred to earlier. While Fundamental Rights
are justiciable in Courts of law, Directive Principles of State Policy are not enforceable in
any Court.

[Link] and Unenumerated Human Rights.-Yet another clas sification of Human

Rights that is found in Indian Constitution is that of Enumerated and Unenumerated Human
Rights. The general practice is that in written Constitution Fundamental Rights are clearly
enumerated. Indian Con stitution has also followed this practice. But a pertinent question
arises whether such enumeration is exhaustive or can other rights be evolved out of the
existing fundamental rights.
In Satwant Singh Sawhney v. Do Ramarathan, it was held by the Supreme Court by majority
that the expression "personal liberty" in Article 21 of the Constitution includes the right to
travel abroad and no person can be deprived of that right except according to procedure
established by law. In Maneka Gandhi v. Union of India, the Special Bench of the Supreme
Court affirmed the above decision.

Relationship between International Covenants on Human Rights and the Indian Law.
Before the adoption of the Indian Constitution the Indian fraction in respect of relation of
International Law to Internal Law or Municipal Law was similar to the British practice
After the adoption and coming into force of Indian Constitution everything depended
upon the provisions of the Constitution. Therefore, in order to know the position of
relationship between International Law and Internal Law in India, it is necessary to see
the relevant provisions of the Constitution. This is necessary because India ratified the
two covenants on Human Rights-(i) International Covenant on Civil and Political Rights
(1966); and (ii) International Covenant on Economic, Social and Cultural Rights (1966)
on March 27, 1979.

12. DISCUSS THE ROLE OF INDIAN JUDICIARY AND LEGISLATURE IN THE

PREVENTION OF SEXUAL HARRASSEMENT OF WOMEN AT
WORKPLACE.
 lOMoARcPSD|25951372

ANS-
Traditionally women in India were conditioned to stay at home, take care of the young
while the men were considered the breadwinners. With access to education, better
facilities, Increased literacy and the industrial revolution.
Women all around the world left the boundaries of their homes and started working.
Though women had been working always with their families on farms, as house help,
even as babysitters from time immemorial.
All these were considered secondary activities and were seldom recognised. Women worked
without any rights and thus were frequently exploited.

The makers of the constitution recognised this problem and provided the right to equality to
all. Irrespective of gender, caste, creed or social status.

India’s Constitution aims at equality under Art.15 and provides for special laws to be made
for the depressed classes and women. The status of women even today is not at par with their
male counterparts. We certainly require laws which support women to take their rightful
place in society. Gender specific laws in India are made to ensure equity between the genders.

The Sexual Harassment of Women at Workplace Act, 2013 is a welcome addition amongst
the class of such laws. It has received both widespread praise and flak in recent times.

The research paper is aimed at analysing the effect that this law has had on society.

It aims to seek answers to potent questions of whether the law has helped cement the place of
women in society ? Have there been any ill Effects or not?

Need

In an emerging Indian Economy as more and more women started entering the workplace, the
malady of sexual harassment has reared its ugly face into many fields. From police and the
army to multinational companies to sports– it is regrettable that no field of human endeavour
has been left untouched. There was a pressing need for legislation which could protect the
rights of these working women. As has been the case with many laws the first time this was
brought under the public eye was by judicial activism.

Judicial Activism

In the context of sexual harassment, judicial activism reached its pinnacle in Vishakha v.
State of Rajasthan (Vishakha). The judgement was unprecedented for several reasons: the
Supreme Court acknowledged and relied to a great extent on
 lOMoARcPSD|25951372

international treaties that had not been transformed into municipal law; the Supreme Court
provided the first authoritative definition of ‘sexual harassment’ in India; and confronted with
a statutory vacuum, it went creative and proposed the route of Judicial Legislation.

Gang rape of Bhanwari Devi

The incident that lead to a public interest litigation being (PIL) filed in respect of the
Vishakha case was the gang rape of a social worker in Rajasthan. Bhanwari Devi was a satin,
a grass-roots worker and activist, employed in the Women’s Development Project (WPD) of
the government of Rajasthan. In 1992, the Rajasthan government launched a campaign
against child marriages, in connection with which the WPD members persuaded villagers to
abandon the practice, which is still rampant in Rajasthan. Bhanwari Devi made all possible
efforts to prevent the marriage of a one year old girl, but in vain. What ensued for her was
worse than a nightmare. There was a complete breakdown of institutional machinery in
Rajasthan. The villagers harassed, threatened and socially boycotted Bhanwari Devi.

Then in September 1992, five villagers raped her in the presence of her husband. She sought
justice, but faced innumerable hurdles from police authorities. The trial court even went
ahead and acquitted the five accused.

This made five NGOs under the name ‘Vishakha’ to file PIL in the Supreme Court seeking
detailed directions on how sexual harassment of women at workplace could be prevented
using judicial activism.

Reference to international treaties while making the Vishakha Guidelines

The Vishakha Guidelines served a great purpose as it immediately filled the void of lack of
legislations in respect of Sexual Harassment of Women at Workplace. Till 2013 they were the
only set of guidelines applicable across India that were specific to this issue.

Due to them being passed by the Supreme Court and it acting as a court of record it was de
facto applicable in the lower courts as well. But, to frame it was a task the three judge bench
consisting of J.S Verma (then CJI), Sujata Manohar and B.N Kripal took cognisance of all the
international treaties existing at that point. The Constitution of India does not have a precise
stand on the value of international treaties that have been signed or ratified by the
government, but not implemented via legislation. In ‘Vishakha, the court moved towards a
more purposeful understanding of fundamental rights in tune with most of its recent
interpretations by affirming that ‘any International Convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into these provisions [The
fundamental Rights] to promote the constitutional guarantee’.
 lOMoARcPSD|25951372

Since there was no law relating to Sexual harassment at workplace, the court stated that it was
free to rely on the Convention of Elimination of All Forms of Discrimination against Women
(CEDAW– signed by India in 1980) in interpreting article-14,19 and 21 of the constitution.
To justify the sources the court referred to several sources including the Beijing Statement of
Principles of the Independence of Judiciary. A decision of the High Court of Australia and its
own earlier decisions. Vishakha was also possibly the first instance in India where
International Covenants had been applied to municipal and district level courts directly. Since
Vishakha, The Supreme Court has started heavily relying on international Multilateral
treaties, particularly those forming part of the Universal Declaration OF Human Rights
(1948) and others forming part of International Bill of Rights due to legislative lethargy in
spheres of public importance. Often filling legislative voids by exercise of Art 141.

The Guidelines

The Supreme Court issued a series of ‘guidelines’ (based on CEDAW) to protect women
from sexual harassment at the workplace. These guidelines were to strictly observed in all
workplaces (whether in the private or private sector) and would be binding and enforceable in
law until suitable laws were made.

The Supreme Court set out the following significant guidelines:

1. The employer and / or other responsible people in a workplace are duty- bound to
prevent or deter sexual harassment and set up processes to resolve, settle or
prosecute in such cases.
2. For the first time in India “sexual harassment was defined authoritatively”. The
Supreme Court stated that it includes such unwelcome behaviour (whether directly
or by implication) such as:physical contact and advances, a demand or request for
sexual favours, sexually coloured remarks, showing pornography, and any other
physical, verbal or non- verbal conduct of sexual nature.
3. All employers or persons in charge of workplaces must strive to prevent sexual
harassment and if any act amount to a specific offence under the Indian Penal
Code 1860 or any other law, they must take appropriate action to punish the
guilty.
4. Even if the act is not considered a legal offence or a breach of service rules, the
employer should create appropriate mechanisms so that the complaint is addressed
and redressed in a time bound manner.
5. This complaint mechanism must, if necessary, provide a complaints committee, a
special counsellor or other support service, such as assured confidentiality. The
complaints committee should be headed by a woman, at least half of the members
should be women. Also, to pre-empt any undue influence from senior levels, the
complaints committee must involve a third party (such as a NGO) familiar with the
challenges of Sexual Harassment.
 lOMoARcPSD|25951372

6. The employer must sensitise female employees to their rights and

prominently notify the court’s guidelines.
7. Even if a third party is responsible for sexual harassment, the employer must
take all steps necessary to support the victim.
8. The Central and State Governments should adopt suitable measures to ensure
private sector employees implement these guidelines.

Comparison with the Act

Most of the guidelines have been adopted verbatim in the Prevention of Harassment of
Women in workplace Act 2013. There have been no significant changes except for the clause
of out of court settlement, but in this also there is no settlement in return of Money. This
seems applicable on paper but its implementation is a big question.

Also, In the Act, the woman has been allowed to take a leave from office for a period of 3
months from the date of the complaint being filed. While the Man has been asked to respond
within the given timeframe while working in the office. The lady (presumably the victim) is
allowed additional leave as and when she demands on top of the leaves that she was entitled
to as the employee of the company that she is employed with.

Developments After Vishakha

A huge amount of cases have cropped up across high courts (and occasionally supreme court)
with reference to the Vishakha Guidelines, these seek the establishment of complaints
committees, dispute the constitution of complaints committees have already been in place, or
challenge orders of dismissal based on the decisions of these committees.

Apparel Export Promotion Council v A.K Chopra was the first case in 1999 where the
supreme court found an opportunity to follow its judgement in Vishakha. The council
Chairman was accused of sexually harassing the secretary; though he made repeated attempts.
the chairman never actually molested her. On her complaint the employer was fired. On the
basis of a writ petition filed by the employer the Delhi High Court took cognisance of the fact
that he never actually molested her and did not make any actual physical contact. Thus
concluding that he did not actually molest her. In an appeal filed by the council, the Supreme
Court reversed the Delhi High Court Judgement, recognising that physical contact was not a
prerequisite of Sexual Harassment, given the broad definition under Vishakha. It asserted that
sexual harassment compromised the dignity of women and cannot be condoned. It asserted
that sexual harassment compromised the dignity of women and cannot be condoned. In
addition to the international sources referred in Vishakha, the court also cited the
International Covenants on Economics, Social and Cultural Rights and the International
Labour Organization’s seminar on combating sexual harassment at work.
 lOMoARcPSD|25951372

The Supreme Court’s refreshingly progressive approach in Chopra marked a transition in the
usual stance of Indian Courts. The apex court acknowledged that harassment transcends
physical barriers and the effects of mental harassment can be equally damaging. And yet the
court’s deep seated insensitivity to women’s issues does come up occasionally.

In DS Grewal v. Vimmi Joshi a colonel of the Indian Army made advances at and wrote
inappropriate letters to the principal at an army school. The principal was apprehensive that if
she objected to his conduct, he would create a hostile working environment and hinder her
employment, including her promotion. Her fears did come true as her services were
terminated. The Supreme Court ordered the school management to constitute a three- member
complaints committee (as mandated by Vishakha Guidelines) to ascertain if there were any
prima facie case against the army officer. If the committee found such a case, it would submit
its reports to the army, which would then initiate disciplinary proceedings.

The court also affirmed that the school management was bound to bear the legal costs
incurred by the principal (with counsel fee assessed at 50,000) for it had not complied with
Vishakha Guidelines to begin with. In the absence of laws relating to sexual harassment
Vishakha Guidelines were the only reliable source of action. It acted as a deterrent and
ensured strict compliance was done with respect to its provisions. The mere idea of being
prosecuted in such a grave issue invited much public ridicule.

Courts emphasised on the strict compliance on the Vishakha Guidelines and have not viewed
alternative mechanisms kindly. In a case where a public company appointed an advocate as
an inquiry officer to investigate a complaint of sexual harassment, The Bombay High Court
refused to accept the efficacy of the procedures followed and held that the complaints
mechanism employed in Vishakha was mandatory.

The Vishakha Guidelines had been applied to almost all forms of formal employment even
NGOs and Cooperative societies. As Kerala HC observed the ‘the quality of womanhood
does not change by the place she works in be it public or private’.

In yet another shift of stance, The Madras HC held that even in the cases where the
allegations of sexual harassment seemed baseless and seemed like an after thought, proper
course would be to first refer the issue to the complaints committee.

Vishakha was indeed the first legislation which defined harassment inclusively and covered
all the behaviours which denied a person employment– related benefits due to rejection of
sexual Demands (quid pro quo harassment) or creates a hostile work environment (without
directly impacting on economic and other benefits).

Double Edged Sword: Instances of Use of the law as a means of Vengeance

 lOMoARcPSD|25951372

Any measure which aims to protect the disadvantaged sections of the society or minorities is
likely to be abused, and Vishakha is no different. In the case of Usha
C.S v. Madras Refineries, The Madras High Court heard a complaint of sexual harassment
made by the employee of Madras Refineries Ltd, a public sector undertaking. The employee
alleged that she was denied her study leave with pay, salary and promotion because she
rejected the advances of the general manager of her department. After examining the facts the
court held that the employees allegations regarding her promotion and study–leave were
baseless, as both decisions appeared to have been taken in accordance with the company
policy. Further, the complaint committee had been properly constituted, but the employee had
persistently delayed the inquiry, therefore, her allegations of sexual harassment were merely a
weapon to bargain for a promotion and study leave and pay, contrary to company policy.
Highlighting and condemning the misuse of the Supreme Court’s judgement in Vishakha, the
court held:

“The employer, who is supposed to keep a vigilant eye on the victim and the delinquent, is
not expected to allow the woman to use it as a shield so presented by the apex court as a
means to seek vengeance. It is true that we are bound by the decisions of the apex court, but
that does not mean that they can be allowed to interpret to suit the convenience of the woman
like the petitioner, for personal gain.”

The court thereafter described Vishakha as a ‘double- edged weapon’. In keeping with other
decisions on the subject, it affirmed that the court cannot assume that the court cannot assume
that an allegation of harassment is correct unless it is first referred to a complaints committee.

The bench urged the other courts to bear in mind the facts of each case individually, without
assuming that the woman is a victim in each case. In fact in this particular case the appellant
had a history of unwarranted leaves and absences. Such cases bring light to the anomaly of
use of positive laws for harm to a person. Though a lot many researchers are of the view that
since the false cases are only 4% or 5% of the whole of the cases filed according to NCRB
data That these cases should be ignored and a bigger picture should be looked at. These laws
indeed help the woman assert her position in society.

But similar to Domestic Violence Cases and Dowry Harassment Laws there are a huge
number of people who are threatened with false prosecution. Just like women find it difficult
to accept and tell the people if she has experienced sexual assault. It is equally tough for a
Man who has been falsely implicated to prove his innocence.

As seen in the famous Rohtak Bravehearts Case, the media was quick to pounce on the story
of two women mercilessly beating up their Molesters in a Haryana Intercity Bus, these Men
were branded as Demons and were called all sorts of Names. They tried to assert their
innocence but to no avail. They were portrayed as villains in the story. While the girls were
catapulted to the status of Heroines even before the case went on trial.

They (the Girls) were to be awarded by the Haryana Government for their bravery.
 lOMoARcPSD|25951372

The case took two years to provide a conclusive judgement, the judgement shook everyone to
the core in the judgement it was found that there was no harassment done by the three
accused. All the evidence and witnesses said that the men had not given any inappropriate
gestures or implications. After a thorough background check it was found that the family of
the supposed victims (Aarti and Pooja) had the habit of borrowing money and then coercing
the lenders to forgo the loans by threatening to file false complaints of Rape, Kidnapping and
Molestation.

While the matter was under trial the Boys (Kuldeep, Narayan, Mohit) had lost their chance to
sit for the armed forces written exam as they were accused of such a controversial case.

Two of them were forced to quit their education. Once the judgement came out all the boys
demanded the court was to regain their respect.

Landmark Judgement

The Delhi High Court took cognisance of the false case of Sexual Harassment filed by
women in one of its landmark judgements Anita Suresh v. Union of India in which Justice
Midha granted exemplary damages to the respondent in the lieu of false Sexual harassment
being filed against them. The court ordered the appellant Ms. Anita Suresh to pay 50,000
rupees to the respondents and the bar association of Delhi.

This helped point out that being falsely implicated of such heinous crimes has a huge impact
on the life of the accused as he may be innocent, but people start to consider him guilty
beyond doubt.

Changes in the Sexual Harassment of Women at Workplace (Prevention

Prohibition and Redressal) Act, 2013

The Act recognises the possibility of false prosecution and says that all the punishments
which would have been applicable on the perpetrator had the accusation be proved would be
conversely applicable on the plaintiff if she files a false case.

Scope

The act is revolutionary in every sense but it has come under scrutiny because its narrow
scope, exploitation of men though not a common practice in India. Is also not unheard of.
 lOMoARcPSD|25951372

But, One thing that the act definitely did was improve the status of the labour class or the
housemaids whose rights were tough to protect even in the Vishakha guidelines, have been
given proper redressal mechanisms so that their rights are also protected.

Provisions of the Act

It had come to the attention of different courts in India that the guidelines that have been set
by the supreme court of India were not practiced in many workplaces in the country. It took
16 years after the passing of the landmark case of the Vishaka and others v. State of
Rajasthan and the judgement where the supreme court had set up guidelines for sexual
harassment in the workplace a proper legislation was enacted, this was the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[5].
This act has filled in the void of proper legislation that delivers each and every woman of
India, regardless of age or status of employment, a workplace that is safe and secure from
any kind of harassment. The above- mentioned Act’s objective is to not only protect but also
to prevent any kind of sexual harassment that occur in workplace and also it ensures a speedy
remedy for any complaints that are filed under the act. In 2013, there have been an
amendment to the criminal law act where amendment had criminalized stalking, sexual
harassment, etc.

One of the most important features of the act is the setting up of committees for any
redressal of grievances, this has to be done both for the organized and unorganized sector.
The said committees are as follows:

 Internal complaints committee: any organization that employs more than 10

employees must have an Internal complaints committee also called as ICC in
each office or branch.
 Local complaints committee: There should be a Local complaints committee
also called the LCC to be set up by the government of India in the district level
for the unorganized sector and also for the institutions having less than 10
employees.
The ICC and the LCC under the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 gives them the power equal to a Civil court, they have
the power to call and inspect any accused under oath, to produce the necessary documents
related to the complaint, and any necessary matter that is needed for the speedy conclusion of
the case.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)

Act, 2013 states that any women that have been sexually harassed in their workplace who
proposes to complaint shall do so by providing 6 written complaints of the incident that have
taken place. This complaint shall include the names, witnesses and most importantly the
evidence of the said incident [6]. The complaint can be filed within 3 months of the said
harassment happening. This time can be increased by the committees by another 3 months.
Sexual harassment being a mentally tormenting criminal activity takes a huge toll on its
victims, therefore they
 lOMoARcPSD|25951372

might not be in a position to go forward with the complaints. The Act has stated that any
relative, psychologist, friends, co-workers have the power to file the complaint for the
victim.

The complaints have the right to ask for interim measures to the ICC and LCC which have
been provided powers to do so by the Act. The ICC and LCC can transfer the duties of
respondent’s duty towards the victim to other employees, transfer of the victim to another
branch or workplace and they can be granted a leave for up to 3 months. The act also in
detail states about the compensations and punishments that will be levied on the individual
engaging in sexual harassment in the workplace. The act states the following:

 The employer can punish according to the rules that have been made in the
organisation.
 If such rules have not been formed the punishment can range from
counselling, community service, termination of service or promotion.
 The compensation payable to the victim shall be deducted from the salary of the
individual engaging in sexual harassment. The mental and physical suffering
borne by the victim, loss of employment, medical costs, determines the
compensation payable.
 If any organisation does not setup any ICC for redressal of sexual
harassment complaints shall be fined 50000.
One of the most important case regarding sexual harassment is the Vishaka & Ors.
v. State of Rajasthan, in this particular case Bhawari Devi was a social worker under the
government. She had been raped by 5 individuals, and due to insufficient evidence, the court
had acquitted the case. This case had gained a huge public favour, therefore many NGOs and
activists who supported Bhawari Devi to attain the justice she deserves. Therefore, a public
interest litigation had been filed. Since there were no laws in place the supreme court of India
had introduced certain guidelines and named it Vishaka guidelines.

These were for the employers to prevent any sexual harassment in the work place. After the
implementation of the Vishaka guidelines the first case that made its way to the court
regarding sexual harassment in workplace is Apparel Export Promotion Council v. A.K
Chopra[7] , in this case an officer superior in the establishment had sexually harassed a
woman who was his subordinate, there was no contact physically. The court had
implemented the Vishaka guidelines and held him guilty.
The court had stated in the judgement that physical contact is not a necessity for sexual
harassment. One of the most important cases in which the high court had implemented
the Vishaka guidelines was Saudi Arabian Airlines, Mumbai v.
Shehnaz Mudbhalkal [8], in this case Shehnaz Mudbhalkal was an employee of Arabian
Airlines. Abdul E. Bahrani was a manager who had sexually harassed Shehnaz Mudbhalkal
by requesting sexual demands and had threatened her if she didn’t comply or provide these
demands, he would fire her. She had filed a case and the high court had held that Shehnaz
Mudbhalkal should be reinstated with full wages and also full back ages.
 lOMoARcPSD|25951372

A few years back there had been an important social media movement regarding sexual
harassment named as the “#ME TOO” movement. Women who had been harassed in their
lifetime had come out with the stories they had been through in social media; this had spread
across the world. Few of the most important cases under this was in the year 2018 where a
woman had alleged, she had been sexually assaulted by a minister and in the same year the
minister of external affairs had also been accused by more than 20 women[9]. Women are
afraid of coming out with their complaints because they fear the consequences following
afterwards. In the ME- TOO movement there had been a lot of defamation cases being filed
against women who speak the truth, this was one of the reasons women don’t express what
had happened to them.

Analysis

The implementation of the Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013 has been a good initiative but it still is not free from
any loop holes and issues in the laws they are stated as follows: if a male employee ever
goes through sexual harassment, he will not be able to claim relief under this particular
legislation. The law talks about formation of the ICC for redressal of complaints, but the
legislation is very vague in respect of the ICC regarding its constitution, the setting up of an
ICC in every branch and office is a very expensive affair. The ICC includes only personnel
from the company itself, there needs to be an individual who is not related to the company at
all in the committee, this individual should be knowledgeable in terms of law or women’s
rights, such an appointment makes the decision a favourable one.

The Act has given the responsibility to address the issues regarding sexual harassment but
there is a possibility that the witnesses in the company will not agree to give their testimony
fearing their reputation or safety. The act specifies that in case the complaint that had been
filed by an individual is malicious in nature the employer has the power to take the necessary
steps against that individual, this would discourage women to come forth and give complaints
fearing that the decision will come against them. The act also exclaims that if any individual
has been found guilty of the complaint that had been filed then the employer can pay the
compensation to the complainant from the guilty individual’s salary, such an act can go
against payment of wages act 1936. [10] The United States of America has no laws regarding
the subject puts a percentage of liability on the employer too, but in India the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 does
not do so.

Colin Kaepernick Effect

The false cases filed in the Act have been much publicised and have ruined the image of
women in many workplaces. Also, with the onslaught of the METOO
 lOMoARcPSD|25951372

movement, each and every action is under scrutiny. According to many critics the normal
balance of the workplace has been disrupted. One dire effect which this act might have is the
non-hiring of capable and qualified women.

As it is women’s participation across industries in negligible amounting to only 4% according

to NCW data, women may find it difficult to get hired. As an employer may find it easier to
hire a man with less expertise but also less complications. As in the case of a woman facing
sexual harassment the employer has to bear the cost of the litigation as well as grant her leave
up to three months in addition to the normal leave she was entitled to. All this adds to the
cost.

13. FIRST, SECOND AND THIRD GENERATIONS OF HUMAN

RIGHTS ANS-
When human rights are being discussed, they are often divided up into three categories
called generations. A reflection of the three generations of human rights can be seen in the
popular phrase of the French Revolution: liberté, egalité, fraternité. These generations of
human rights were first formally established by Karel Vasak, a Czech jurist, in 1979. This
division of the types of human rights helps improve conversations about rights, especially
those involving legislation and the role that governments play in human rights.
The First Generation: Liberté
The first generation of human rights encompasses an individual’s civil and political rights.
First generation rights can be divided into two sub-categories. The first sub- category relates
to norms of “physical and civil security.” This includes not committing acts of torture,
slavery, or treating people inhumanely. The second sub- category relates to norms of “civil-
political liberties or empowerments.” This includes rights such as freedom of religion and
the right to political participation.

First generation rights are based around the rights of the individual person and are often the
focus of conversations about human rights in western countries. They became a priority for
western nations during the Cold War. Some documents that focus on first generation rights
are the United States Bill of Rights and Articles 3 through 21 of the Universal Declaration of
Human Rights (UDHR).

THE FIRST GENERATION OF SUBJECTIVE RIGHTS

This generation of subjective rights is the generation of civil and political rights acquired
through the force of writing and of arms. Once time passed and ideas and concepts about
state were developed, political power, and right and freedom (the works of philosophers John
Locke, Ch Montesquieu, Th. Hobbes, JJ Rousseau), appeared a fight against monarchical
absolutism, struggle which will be successful, success expressed by documents with legal
force as: -
 lOMoARcPSD|25951372

Magna Charta in 1215

- Petition of Rights in 1628
- The Bill of Rights (Declaration of Rights) in 1689, England
- The American Declaration of Independence in 1776
- The French Declaration of Human and Citizen Rights in 1789.
Through these documents of constitutional nature, were established early forms of limitation
of absolute power in the sense that:
l. There were established safeguards against the introduction of taxes by the king, without
the approval of Parliament;
2. also have established safeguards against arrest of persons and confiscation of assets
without observance of procedure of courts;
3. there were supported and declared the freedom of speech, that freedom of thought
and the right to petition;
4. there were stated principles of individualism, starting from the idea expressed by the
French Declaration of Human and Citizen Rights in1789 as "the purpose of each political
associations is keeping natural and indefeasible human rights." It is considered that the
Declaration of human and citizens rights from 1789 expresses in the best way the idea that
there are inherent human rights, rights that are exercised in a state which is not an end in
itself, but only a mean to ensure coexistence of individuals and the exercise of individual
rights. For this reason, it is estimated that it is an expression of the first generation of
subjective rights.
The French Declaration of Human and Citizens Rights from 1789 contained two new ideas:
1. the idea that man as an individual, benefits of "natural rights,
inalienable and sacred” including liberty and equality;
2. The second idea is that the "purpose of all political associations is the
preservation of the natural and indefeasible rights of man" (Article 2 of the
Declaration).
There are two categories of rights which the Declaration of Human and Citizens Rights from
1789 is referring to:
1. civil rights or human rights as: -
Freedom of opinion (Article 10)
- Freedom of expression and press (Article 11)
- Personals ownership (Article 17)
- The right to personal security in relation to justice and police (art. 7-9)
- Equality before the law (Art. 6)
2. political rights, those that allow citizen participation at power, namely: -
Equal access to public (Article 6)
 lOMoARcPSD|25951372

- Participation in elaboration of laws (Article 6)

- Control of taxes (art. 13-14)
- Citizen control over the administration (Art. 15)
These rights represent the first generation of subjective rights, and more precisely those
rights that refer to personal autonomy of the individual and the rights that enable citizen
participation in power in a society where "the exercise of natural rights of each man has no
limits, than those which ensure for the other members of society the same rights" (article 4).
In the modern age, these rights have found their consecration in constitutions and in the laws
of most countries, as well as in international documents.
THE SECOND GENERATION OF SUBJECTIVE RIGHTS
In the category of socio-economical and cultural rights we can identify these categories of
rights:
1. the right to work;
2. freedom of association;
3. the right to education, learning;
4. the right to insurance for sickness, old age and disability (Social insurance).
These rights come from positive law, as well as from international law (International
Covenant on Economic, social and cultural). This dedication has not the same coverage, as in
the case of first generation rights, as consecration requires significant effort from the State
and so it is appropriate to everyone’s prosperity. The second generation of rights, against the
first generation of rights requires institutional support from the state, the first generation
rights can be exercised independently and singular. The state must intervene through
legislation to create an institutional system that allows the exercise, for example, of the right
to education or retirement. It is estimated that if the first generation rights form "free status”,
social economic rights are related to the “social status” of the [Link] the system of
rights that belong to the second generation and protected by The European Convention on
Human Rights, Additional Protocols to this Convention and The European Social Charter
include:
1. freedom of meeting, association and establishing unions;
2. the right to education;
3. social rights (social security, pensions, medical services).

THE THIRD GENERATION OF HUMAN RIGHTS

In this category we can identify the so called solidarity rights, rights which can not be
exerted only by an individual, but only collectively, like:
 lOMoARcPSD|25951372

1. the right of people to self-determination;

2. the right to peace;
3. 3. the right to development;
4. 4. the right to humanitarian assistance;
5. 5. environmental law;
6. 6. the right of sexual minorities, ethnic, religious, linguistic, etc.
These rights have a positive consecration, generally in international law. The rights in this
category can not be exerted individually, but only by groups or collectivities of people. The
third generation rights require not only the need to create an institutional support by the
State, but, as in the case of second generation rights, they need to restrict the first generation
of rights, through a so called “positive discrimination”, in the sense that these rights , like the
rights of any minority, require a limitation of rights of first generation. The environmental
law allows social groups to live in a healthy environment, clean, without harmful agents to
health but, in the same time, involves a number of limitations of rights of first or second
generation, like owning a forest or the right to work.