HUMAN RIGHTS LAW

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
BALLB / BBALLB (SEVENTH SEMESTER)
HUMAN RIGHTS LAW
UNIT I
INTRODUCTION TO HUMAN RIGHTS

● MEANING AND NATURE OF HUMAN RIGHTS
❖ Human beings are rational beings. They by virtue of their being human possess
certain basic and inalienable rights, which are commonly known as Human Rights.
❖ New International Webster’s Comprehensive Dictionary of the English Language,
literally the word “right” means anything done in accordance with or conformable to
truth or fact, correct, true, accurate, not mistaken, conformable to a standard of
propriety, fit , suitable and the word “human” means pertaining to characterizing
man or mankind.
❖ Human Right is mainly related to humans and nature of human right is different. It
does not require any state recognition, any legitimacy from the state and any
enforcement. Human rights are older than states.

❖ History of human rights can be traced back to man itself. When there was only
human being human right was there. When there was not state, natural law etc there
was human right. History of human rights starts with the history of man itself.
❖ Nature of human rights changed with Industrial Revolution. Human rights in this era
was considered as social rights. Human rights changed with Russian Revolution
1916. The outcome of this was making of first constitution of USSR in 1916. It was
the first constitution of the modern states guaranteed Social and Economic Rights in
its Constitution itself. This led to dawn of Second Generation Human Rights.

● ORIGIN AND EVOLUTION
❖ The history of origin and development of Human Rights is very fascinating. The
origin of human is traced by some Scholars back to the times of ancient Greeks.
❖ The fact that human rights were recognized as natural rights of man is illustrated by a
Greek play Antigone.
❖ It is said that the struggle for human rights started in the Western world sometimes in
the beginning of 13th century, which is the great English Charter known as Magna
Carta was issued but the fact is that this struggle had started even 200 years prior to
the issue of this charter determining the rights of the parliament in 1037 AD.

❖ The Second important document was the draft of Right, 1689. Other important
documents included the English Bill of Rights, 1689, American declaration of
independence, 1776, French declaration of the Rights of man and of the Citizens,
1789 etc.
❖ Though the established fact is that concept of “Human Rights” was existed, before
the “Magna Carta” (Bill of Rights), itself came into existence. However, Magna
Carta enjoys the status of a milestone in the history of human rights. This charter was
also issued in 1216, 1217 and 1325 after being amended and modified.
❖ The expression ‘fundamental rights of man ‘were stated in the declaration and
constitutional instruments of many states.

❖ The term human rights came somewhat late in the vocabulary of mankind. It is a
twentieth century name for what has been traditionally known as Natural rights or
the rights of Man. It was first used by Thomas Paine in the English translation of the
French Declaration of the rights of Man and citizen.
❖ The term natural law was replaced because the concept of natural law had become a
matter of great controversy and the phrase ‘the rights of man’ was found unsuitable
as it was not universally understood to include the rights of women.

● Development of Human Right Regime
❖ The turning point for the traditional approach in International law came in 1940’s in
midst of the extreme human rights abuses in war-torn Europe during the World War II
shocking crimes were committed against the humanity and there was a total
suppression of fundamental human rights. Nazi leaders of Germany have established a
regime of complete lawlessness and tyranny. They had barbously negated human
values and dignity within their territories under their occupation.
❖ Violation of human rights was considered as a source of International conflict and
protection of human rights was regarded as necessary for international peace. This
conviction was reflected in the proclamation issued by President Franklin D,
Roosevelt on January 6, 1941 which came to be known as ‘Four Freedoms’.

❖ ‘Four Freedoms’. These he listed as freedom of speech, freedom of religion, freedom
from want and freedom from fear. In the message he declared; “freedom means the
supremacy of human rights everywhere. Our support goes to those who struggle to
gain these rights or keep them”.
❖ The same efforts for the creation of an international organization, in order to
establish peace, were being made even when the World War II was in progress. A
number of conference and meetings were held before the United Nations, an
international organization was established in 1945.

❖ At San Francisco conference it was expressed by several delegates that eh United
Nation’s should established an International Bill of Rights.
❖ Although that could not be done it was realized that it should be the obligation of the
International community to co-operate in eradicating the scourge of war, therefore
the promotion and respect for human rights which at present constitute so important
and so conspicuous be an integrated part of the United Nation charter.
❖ UN decided to prepare on International Bill of Rights to achieve the end. The
General Assembly adopted its on December 10, 1948 through a resolution known as
‘Universal Declaration of Human Rights’
❖ After the Universal Declaration of Human Rights by the UN General Assembly on
December 10, 1948, the concept of Human Rights assumed a significance of its own.

HUMAN RIGHTS LAW
UNIT II
INTERNATIONAL HUMAN RIGHTS LAW

● UN CHARTER
❖ The UN Charter in 1945 affirmed faith in the fundamental human rights and
appointed a Commission on Human Rights under Mrs. E. Roosevelt. This
declaration was the outcome of the latter’s deliberations A.A. Said aptly remarked
“The concept of Human Rights may be difficult to define but impossible to ignore”.
❖ The United Nations (UN) is an international organisation whose stated aims are to
facilitate cooperation in international law, international security, economic
development, social progress and human rights issues. The pursuit of human rights
was a central reason for creating the UN. It was founded in 1945 and began with fifty
countries signing the United Nations Charter.

❖ As of 2007, there are 192 United Nations member states, encompassing almost every
recognised independent state. The UN Charter obliges all member nations to promote
“universal respect for, and observance of, human rights” and to take “joint and
separate action” to that end.
❖ The Charter consists of a preamble and a series of articles divided into chapters. It
includes: purposes of the United Nations; criteria for membership; the organs and
institutions of the UN; arrangements for integrating the UN with established
international law; and the enforcement powers of UN bodies.

● UDHR
❖ In December 10, 1948 the General Assembly of the United Nations adopted and
proclaimed the Universal Declaration of Human Rights the full text of which appears
in the following pages. Following this historic act the Assembly called upon all
Member countries to publicize the text of the Declaration and "to cause it to be
disseminated, displayed, read and expounded principally in schools and other
educational institutions, without distinction based on the political status of countries
or territories".
❖ The 1948 Universal Declaration of Human Rights is probably the most famous
human rights document and at the same time is the cornerstone of international
human rights protection.

❖ The effects of II World War and fear of communism however led to a turnaround.
During the war the Allies explained that they were willing to create conditions for all
humans to live in freedom and free from any fear and shortage. Therefore the UN
Charter of 1945 contains the clear order to the community of states to encourage the
respect and realisation of human and basic rights.
❖ The thirty articles of the Universal Declaration of Human Rights guarantees
protection of the person, of procedural law , classical freedom rights such as freedom
of expression, as well as economical, social and cultural rights. These rights apply to
all people irrespective of their race, gender and nationality.
❖ The UNDH was significantly important in terms of its content and a benchmark for
the establishment of binding UN Human Rights Conventions since the 1950’s.

● COVENANTS OF 1966
❖ Universal Declaration of Human Rights(UDHR) includes civil and political rights,
economic, social, Cultural and group rights. There are quests to transform the
declaration to legally binding documents, United Nations eventually adopted the two
covenants.
❖ International covenant on civil and political rights (ICCPR)
❖ International covenant on economic, social and cultural rights (ICESCR)

❖ International covenant on civil and political rights (ICCPR) The state parties to
the covenants consider principles in the charter of the UN and recognized the civil
and political rights in Universal Declaration of Human Rights(UDHR) and duties of
individual to other individuals and community, it can be said that this covenant has
its foundation in Universal Declaration of Human Rights and UN charter .
❖ International covenant on economic, social and cultural rights (ICESCR) The
covenant was adopted alongside ICCPR to develop UDHR rights, it contains ‘second
generation’ rights. it was opened for signature in 1966.it came into force in 1976
with 155 States as parties as at January 2007. It also has five parts, Part I of the
covenant is solely on Article 1,which on right of all people to self determination with
free right to pursue economic, social and cultural development and right to deal
freely with their natural resources and wealth.

● OPTIONAL PROTOCOLS
❖ An optional protocol is a treaty that complements and adds to an existing human
rights treaty. For this reason, only States that have already agreed to be bound by a
parent treaty may choose to be parties to optional protocols.
❖ There are only two kinds of optional protocols in the UN Human Rights Treaty
System:
❖ Those that address a new substantive area that has not been included in the original
text of a treaty. For example the Second Optional Protocol to the International
Covenant on Civil and Political Rights which considers the question of the abolition
of the death penalty;
❖ Those that address procedural aspects that may affect the way a treaty operates and is
enforced. For instance, by creating new compliance mechanisms as in the case of the
Optional Protocol to the CEDAW Convention.

❖ The Optional Protocol to the ICESCR (OP-ICESCR) is a separate treaty open for
signature and ratification by States that are already parties to the ICESCR. The OP-
ICESCR does not create any new substantive rights. It sets a mechanism that makes
it possible for individuals or groups to submit a complaint to the Committee in
regard to violations of their economic, social and cultural rights by a State party.
❖ For example, a community that was wrongfully evicted by the local authorities
without being able to benefit from any remedies provided by national courts would
be able to file a complaint directly to the Committee on ESCR.

HUMAN RIGHTS LAW
UNIT III
NATIONAL HUMAN RIGHTS
LAW

● CONSTITUTIONAL PROVISIONS
❖ The Constitution of India gave primary importance to human rights. To quote Guha,
”The demand for a declaration of fundamental rights arose from four factors.”
1. Lack of civil liberty in India during the British rule
2. Deplorable social conditions, particularly affecting the untouchables and women
3. Existence of different religious, linguistic, and ethnic groups encouraged and
exploited by the Britishers
4. Exploitation of the tenants by the landlords

❖ India was a signatory to the Universal Declaration of Human Rights. A number of
fundamental rights guaranteed to the individuals in Part III of the Indian Constitution
are similar to the provisions of the Universal Declaration of Human Rights.
❖ In Keshavananda Bharati v. State of kerala, the Supreme Court observed, ”The
Universal Declaration of Human Rights may not be a legally binding instrument but
it shows how India understood the nature of human rights at the time the
Constitution was adopted.”
❖ Constitutional interpretation in India has been strongly influenced by the
Declaration. In the judgement given in the Chairman, Railway Board and others v.
Mrs.Chandrima as, the Supreme Court observed that the Declaration has the
international recognition as the Moral Code of Conduct having been adopted by the
General Assembly of the United Nations.

● FUNDAMENTAL RIGHTS
❖ The judicially enforceable fundamental rights which encompass all seminal civil and
political rights and some of the rights of minorities are enshrined in part III of the
Constitution (Articles 12 to 35). These include the right to equality, the right to freedom,
the right against exploitation, the right to freedom of religion, cultural educational rights
and the right to Constitutional remedies.
❖ The Supreme Court recognizes these fundamental rights as ’Natural Rights’ or ’Human
Rights’. While referring to the fundamental rights , Sikri the then Chief Justice of the
Supreme Court, in keshavananda Bharati v. State of kerala,”observed, ”I am unable to
hold these provisions to show that rights are not natural or inalienable 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.”

● DIRECTIVE PRINCIPLES OF STATE POLICY
❖ Judicially non-enforceable rights in Part IV of the Constitution are chiefly those of
economic and social character. However, Article 37 makes it clear that their judicial
non-enforceability does not weaken the duty of the State to apply them in making
laws, since they are nevertheless fundamental in the governance of the country.
❖ It seems parts III, IV and IV(a) of the Constitution heavily depend upon the judiciary
for their interpretation and application. The various ’reasonable restrictions’ clauses
in Part Ill, Article 21, and the seldom-used Part IV-A have given the judiciary ample
scope for the Judicial Review of administrative and legislative action. Indeed, Article
21 has allowed it to act as a catalyst in prodding the State to implement the directive
principles in so far as they directly bear upon ”life and personal liberty.”

● HUMAN RIGHTS ACT, 1993
❖ The Human Rights Commission Bill introduced in the Lok Sabha on May 14, 1992
was referred to the Standing Committee on Home Affairs of the Parliament. The
President of India promulgated an Ordinance, which established a National
Commission on Human Rights on September 27, 1993, owinc to pressure from
foreign countries as well as from the domestic front. Thereafter, a Bill on Human
Rights was passed in the Lok Sabha on December 18, 1993 to replace the ordinance
promulgated by the President The Bill became an Act, having received the assent of
the President, or January 8, 1994 (Act 10 of 1994) and was published in the Gazette
of India, Extraordinary Part II, Section I, on January 10, 1994.

● NHRC: Composition, Powers and Functions
❖ Chapter II of the Human Rights Act deals with the constitution of the National
Human Rights Commission (N.H.R.C.).
❖ Section 3 of the Act lays down that the Central Government shall constitute a body
known as the National Human Rights Commission. It shall consist of Eight members
as follows:
a) A Chairperson who has been a Chief Justice of the Supreme Court
b) One Member who is, or has been a judge of the Supreme Court
c) One Member who is, or has been, the Chief Justice of a High Court
d) Two Members to be appointed from amongst persons having knowledge of, or
practical experience in, matters relating to human rights.

❖ Powers and Functions
❖ The functions of the Commission are as follows:~
1. The Commission shall inquire suo motu or on a petition presented to it by a victim
or any person on his behalf into complaints of
(a) violation of human rights or abatement thereof or (b) negligence in the prevention
of such violation by a public servant.
2. It may intervene in any proceeding involving any allegation of violation of human
rights pending before a court with the approval of such court.
3.The Commission shall review the safeguard provided by or under the Constitution.
4.The Commission shall review the factors, including acts of terrorism.
5. Shall study the treaties and other international instruments on human rights and
make recommendations

● Role of State HRC, NCW, NCM, SC/ST Commission
❖ The Protection of Human Rights Act of 1993 provides for the creation of State
Human Rights Commission at the state level. A State Human Rights Commission
can inquire into violation of human rights related to subjects covered under state list
and concurrent list in the seventh schedule of the Indian constitution
❖ According to the protection of Human Rights Act, 1993; State Human Rights
Commission is allowed to carry out all the function which are carried out by NHRC.
❖ SHRC has the similar powers and functions as of NHRC which it can execute on its
State level.

● Role of Civil Societies and Media
❖ Campaigning is always the first step to a noble cause and aims at building awareness
among the masses. In a great country like ours, the largest democracy of the world,
campaign is the authentic way to social change. The mass media can be an
instrument for educators, educational institutions and Governmental and Non-
Governmental Organizations for the emancipation of Human Rights.
❖ Freedom of expression, and press freedom in particular is an important factor in
democracy because of the media’s ability to provide information which serve as link
between mass publics, elites and government.
❖ They can also elevate the credibility and authority of new politicians, thus
enhancing their acceptability by voters. It is therefore evident that the media are
useful in ensuring that there is a feasible mechanism for democracy to thrive.

HUMAN RIGHTS LAW
UNIT IV
GROUP RIGHTS

GROUP RIGHTS
● RIGHTS AVAILABLE TO PRISONERS
❖ It is established that conviction for a crime does not reduce the person into a non-
person, so a prisoner is entitled to all the rights, which are generally available to the
non-prisoner.
❖ The Supreme Court of United States as well as the Indian Supreme Court held that
prisoner is a human being, a natural person and also a legal person. Being a prisoner
he does not cease to be a human being, natural person or legal person.
❖ Right to life and personal liberty : The Hon’ble Supreme Court has adopted
annotation of Article 21 and expanded connotation of “life” given by Field J.

❖ Right to live with human dignity : The Supreme Court held that right to life is one of
the basic human rights, guaranteed to every person by Article 21 and not even the
State has authority to violate it. A prisoner does not cease to be a human being even
when lodged in jail; he continues to enjoy all his fundamental rights including the
right to life.
❖ Right to speedy trial: The Supreme Court held that right to speedy trial is a part of
the fundamental right envisaged under Article 21 of the Constitution. Delay in
disposal of cases is denial of justice, so the court is expected to adopt necessary steps
for expeditious trial and quick disposal of cases.

● RIGHTS AVAILABLE TO WOMEN
❖ Women and girls have the same fundamental human rights as men and boys have.
These rights are set out in the Universal Declaration of Human Rights, and more
explicitly referred to in the Convention on the Elimination of Discrimination Against
Women (CEDAW) and the Beijing Platform for Action.
❖ CEDAW, is the principal international instrument on the rights of women. The
Convention’s focus is on eliminating all forms of discrimination against women so
that substantive equality, which requires equality in practice and the elimination of
structural forms of inequality, can be achieved.

❖ The CEDAW describes the three obligations that are central to state parties’ efforts
to eliminate discrimination against women as:
❖ To ensure that there is no direct or indirect discrimination in their laws and that
women are protected against discrimination – whether committed by public
authorities, the judiciary, organisations, enterprises or private individuals – in the
public as well as the private spheres, by competent tribunals as well as by sanctions
and other remedies.
❖ To improve the de facto position of women through concrete and effective policies
and programmes.
❖ To address prevailing gender relations and the persistence of gender-based
stereotypes that affect women, not only through individual acts by individuals but
also in the law, and legal and societal structures and institutions.

● RIGHTS AVAILABLE TO INDIGENOUS PERSON
❖ Right of self-determination of indigenous individuals and peoples.
❖ Rights of indigenous individuals and people to protect their culture through
practices, languages, education, media, and religion.
❖ Asserts the indigenous peoples’ right to own type of governance and to economic
development
❖ Health Rights
❖ Protection of subgroups ex. elderly, women, and children.
❖ Land rights from ownership (including reparation, or return of land) to
environmental issues

● RIGHTS OF DISABLED PERSON
❖ A disproportionate number of persons with disabilities live in developing countries,
often marginalized and in extreme poverty.
❖ The protection guaranteed in other human rights treaties, and grounded in the
Universal Declaration of Human Rights, should apply to all. Persons with disabilities
have, however, remained largely ‘invisible’, often side-lined in the rights debate and
unable to enjoy the full range of human rights
❖ The Convention on the Rights of Persons with Disabilities, which was adopted in
2006 and entered into force in 2008, signalled a ‘paradigm shift’ from traditional
charity-oriented, medical-based approaches to disability to one based on human
rights..

❖ The Convention on the Rights of Persons with Disabilities offers sufficient standards of
protection for the civil, cultural, economic, political and social rights of persons with
disabilities on the basis of inclusion, equality and non-discrimination. It makes clear
that persons with disabilities are entitled to live independently in their communities, to
make their own choices and to play an active role in society.
❖ The Committee on the Rights of Persons with Disabilities (CRPD), a group of 18
independent experts (currently, most of them persons with disabilities), oversees
promotion and implementation of the Convention. The experts are nominated by
individual countries and then elected by the States that have ratified the Convention.
All States are obliged to report regularly to the Committee on how the rights embodied
in the Convention are being implemented in each of their countries.

● RIGHTS OF SENIOR CITIZEN
❖ The International Bill of Rights As mentioned earlier, human rights are universal.
They apply to all human beings everywhere, regardless of their sex, age, religious
affiliation, disability, sexual orientation and other distinctions. Thus, the human
rights of all people, including older persons are tacitly protected in the Bill of Rights.
❖ Work-related rights (Articles 6–7)
❖ The rights to social security (Article 9)
❖ Right to an adequate standard of living (Article 11)
❖ Right to the highest attainable standard of physical and mental health (Article 12).

● RIGHTS AVAILABLE TO REFUGEES
❖ The concept of refugee protection is inseparable from the notion of human rights. In
other words, we can say that the contemporary refugee law evolved out of human
rights law and considered to be a part of international humanitarian law. The
international legal regime for the protection of refugees, whose basis is provided by
the 1951 Convention relating to the Status of Refugee and the 1967 Protocol.
❖ Once a person has been recognized as a refugee under the provisions of Convention,
he is entitled to residen e and a number of human rights without discrimination. The
rights enjoyed by refugees under this convention cover wide and diverse areas, such
as religious, economic, social, educational, cultural, fiscal and civil rights etc. The
1951 Convention and the 1967 Protocol constitute the most important codification
efforts of the rights of refugees.

❖ Determination of the personal status of a refugee by law of the country of his
domicile or, if he has no domicile, by the law of the country of his residence.
❖ The rights of acquisition of movable & immovable property through different mode.
❖ The same protection of industrial property such a s inventions, designs or models,
trademarks, trade names, and of rights in literary, artistic and scientific work.
❖ A refugee shall have right to free access to courts and to legal assistance.
❖ A refugee shall have right regarding association with nonpolitical and non-profit
making associations and trade unions.
❖ The application of its provisions to refugees without discrimination on the basis of
race , religion or country of origin.
❖ The refugees are to be accorded a treatment, at least as favourable a s is accorded to
the nationals.

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HUMAN RIGHTS LAW

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