Notes on the Human Rights and Its Violation in India

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1. Forms of Human Rights in International Context

Man has the right to live. He has the right to bodily integrate and to the means necessary for proper develop­ment of life, particularly food, clothing, shelter, medical care, rest and finally necessary social services. Hence human rights are undeniable and inherent rights of every individual.

The minimum standards of human rights norms in a state of exception formulated by the Human Rights Com­mittee of International Law recognise 11 non-suspendable rights in any kind of emergency:

1. Right to life.

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2. Prohibition of torture.

3. Prohibition of slavery or servitude.

4. Prohibition of retroactive criminal laws.

5. Rights to recognition of legal personality.

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6. Freedom of conscience and religion.

7. Prohibition of imprisonment for breach of contrac­tual obligation.

8. Rights of the family.

9. Rights of the child.

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10. Rights to nationality.

11. Rights to participate in Government.

The concept of human rights has its origin in human­ism which recognizes the value and dignity of man and makes him the measure of all things or somehow takes human nature, its limits, or its interests as its theme.

Human rights are often called fundamental and uni­versal. Human freedom refers primarily to a condition characterized by the absence of coercion or constraint imposed by another person. It refers to an aspect of conduct within which each man chooses his own course and is protected from compulsion or restraint. The necessary condition, for the existence of freedom would be:

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(a) The absence of human coercion or restraint prevent­ing one from choosing alternatives he would wish to choose;

(b) The absence of natural conditions preventing one from achieving a chosen objective;

(c) The possession of the means or the power to achieve the objective one chooses of one’s own volition.

The San Francisco Charter of 1945 through which the People of United Nations reaffirmed their faith in “encour­aging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.”

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In 1948 the U.N. General Assembly proclaimed in a resolution, the Universal Declaration of Human Rights. In 1955-56 the United Nations started the periodic report­ing by states on development, studies on specific rights or group of rights and advisory services in the field of human rights. In 1964, it adopted the International Covenants on Economic, Social and Cultural Rights and the International Covenants on Civil and Political Rights.

2. Evolution of Human Rights in India

India is a signatory to the Universal Declaration of Human Rights of 1948. In 1979 India ratified 2 covenants: International Covenant of Economic, Social and Cultural Rights; and the International Covenant on Civil and Political Rights. The Constitution of India guarantees Human Rights in the Chapter on Fundamental Rights.

The Directive Principles of State Policy supply the necessary guidelines for their effective implementation. Fostering respect for International Law is an obligation of the State under Article 51 of the Constitution.

The human rights relevant to the administration of criminal justice derive sustenance from the Constitution and gain strength from the creative interpretations of the Supreme Court. In the country’s human rights jurispru­dence, Article 21 became the springboard for judicial activism. The Supreme Court mainly interpreted Article 5 of the Universal Declaration of Human Rights and Article 10 of the International Covenant on Civil and Political Rights which provided respectively—

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

Article 19 guarantees to all citizens of freedom i.e.

(i) Freedom of speech and expression (which includes freedom of press);

(ii) To assemble peaceably and without arms;

(iii) To form associations or unions;

(iv) To move freely throughout the territory of India;

(v) To reside and settle in any part of the territory of India;

(vi) To acquire, hold and dispose of property; and

(vii) To practise any profession or to carry on any occupation, trade or business.

Article 20 protects every individual against ex-post facto (retrospective) criminal law, double jeopardy and testimonial compulsion. It declares that no person shall be deprived of life or personal liberty except according to the procedure established by law.

The dimensions and ampli­tudes of these freedoms have been explained by the • Supreme Court in two recent decisions namely ‘Maneka Gandhi vs. Union of India’ and ‘Sunil Batra vs State’.

In the Maneka Gandhi case, the individual’s right to foreign travel was upheld. In the ‘Sunil Batra case’ the Supreme Court declared that even the prisoners cannot be denied the fundamental rights guaranteed by the Constitution.

Article 15 and 16 amplify specific aspects of equality before law by declaring that no citizen is discriminated on the ground of religion, race, caste, sex, birth-place, or be subject to any disability or restricted with regard to access to public place or equal opportunity to public office. Article 17 is directed towards abolition of untouchability, and Article 18 towards the abolition of titles.

Articles 23 and 24 are rights against exploitation. They prohibit traffic in human beings and forced labour as well as employment of children in factories or hazardous work.

Articles 25 to 28 are about right to freedom of religion. Article 31 guarantees right to property and permits dep­rivation only for public purpose and that too on payment of compensation.

Under Article 22(1) the right to consult an advocate of his choice shall not be denied to one who is arrested. Article 20(1) (3) may be telescoped by making it prudent- for the police to permit the advocate of the accused to be present at the time he is examined. If the accused expresses his desire to have his lawyer by his side at the time of examination, the facility- shall not be denied.

In keeping with the spirit of human rights movement all over the world, the National Human Rights Commission came in India in 1993 through an ordinance promulgated on 28 September 1993 by the President of India. Soon the ordinance was replaced by a statute called the Protection of Human Rights.

Human Rights Act, 1993 came into force in 1994. The Act provides for setting up the National Human Rights Commission at the Centre as well as State Level Human Rights Commission.

The National Human Rights Commission consists of a Chairman and 4 members, all of them being full-time members. The Chairperson may be no less than a former Chief Justice of the Supreme Court.

Of the 5 members, including the Chairman, three are to possess high-level judicial background and the remaining two must have knowledge of or practical experience in matters relating to human rights. The serious areas of human rights violations in India are custodial deaths, custodial rapes, and misuse of Terrorist and Disruptive Activities (Prevention) Act.

In order to further human rights, the Commission can intervene in any legal proceedings involving an allegation of violation of human rights. It can visit with prior approval of the state government any jail to study the living conditions of the inmates and make recommendations. It can review the Constitution or any law for the protection of human rights and recommend measures for their effec­tive implementation.

The Commission reviews the factor, including Acts of Terrorism, that inhibit the enjoyment of human rights and recommends measures. It also under­takes and promotes research in the field of human rights. It encourages NGOs working in the field of human rights.

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