Human Rights in India
People For Human Rights Council(PHRC) This organization founded with the intention to help the needy persons who are unable to fight for their rights . This organization fights for the protection of human rights of general public without any discrimination on the basis of cast, creed, colour, religion, region and language. This organization is working all over the India by establishing its sub offices in different cities of the India.
Its Head Office is at SCO No. 38-39 sector 17-A Chandigarh. This organization always raises voice against the human rights violations prevailing in the state agencies, police, politics and society. This organization is working in all over the India with its numbers of honest and dedicated members, who are working for the betterment of the general public. The members of this organization are also serving the general public as RTI activists and whistle blowers against the corruption prevailing in the bureaucracy, politicians, and other state agencies.
Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the usage of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others.the rights are not absolute rights so the citizen of India must be aware about their duties as rights and duties are the opposite faces of each others.
HUMAN RIGHTS IN INDIA
Respect for the dignity of an individual and striving for peace and harmony in society, has been an abiding factor in Indian culture. The Indian culture has been the product of assimilation of diverse cultures and religions that came into contact in the enormous Indian sub-continent over time. The international community has recognized the growing importance of strengthening national human rights institutions. In this context, in the year 1991 an UN-sponsored meeting of representatives of national institutions held in Paris, a detailed set of principles on the status of national institutions was developed, these are commonly known as the Paris Principles. These principles, subsequently endorsed by the UN Commission on Human Rights and the UN General Assembly have become the foundation and reference point for the establishment and operation of national human rights institutions.
Main constitutional Provisions to protect human rights in India
Article 14: … shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15: … shall not discriminate against any citizen… (3) Nothing in this article shall prevent the State from making special provision for women and children. (4) Nothing … shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
The effort by the constitution of Indian
Article 17: “Untouchability” is abolished and its practice in any form is forbidden. …
Article 19: (1) All citizens shall have the right – (a) to freedom of speech and expression; … (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India.
Article 21: No person shall be deprived of his life or personal liberty except according to the procedure established by law.
Article 21 A: … shall provide free and compulsory education to all children of the age of six to fourteen years…
Article 23: Traffic in human beings and the beggar and other similar forms of forced labor are prohibited…
Article 24: No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Directive Principles of State Policy to protect human rights
Article 39: … (e) … the tender age of children are not abused… and not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood… protected against exploitation and against moral and material abandonment.
Article 45: …provide early childhood care and education for all children until they complete the age of six years.
Article 46: …shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes…
Article 47: …raising of the level of nutrition and the standard of living of its people and the improvement of public health…
Article 51: The State shall Endeavour to – … (c) foster respect for international law and treaty obligations …
Article 51A: … (k) … parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.21 Development programmes in the country, including those for children, are carried out within the framework of the Five-Year Plans. Some of these programmes are wholly funded by the Central Government, some by both Central and State Governments, and some entirely by the State Government, depending on whether the programmes are classified as Central, centrally sponsored or State sector schemes. In addition, a wide variety of programmes are also being implemented in collaboration with international organization’s and non-governmental organization’s, which are now growing as a vibrant sector in the development and empowerment of children. In the ensuing paragraphs, let us now see the milestones achieved by India on the whole ever since it achieved independence with regard to survival, development, protection and participation of children
Both at the national and international level.
The First Five-Year Plan (1951-56) took a comprehensive review of resources and needs of children along with women to meet the problems that had emanated out of the Second World War and the partition of the country. Health, nutrition and education of children were identified as special areas of concern. In order to focus attention on these areas, it was decided to forge a viable partnership with the voluntary sector. Correspondingly, in 1953, the Central Social Welfare Board (CSWB) was constituted with the object especially of assisting voluntary agencies in organising welfare programmes for children, women and handicapped persons. The Board assisted 591 child welfare organizations during the First Five-Year Plan. Besides, in collaboration with State Governments, the Board setup State Welfare Boards throughout the country. In 1954, Welfare Extension Projects were started to reach children and women in rural areas through the creation of balwadis and mahila mandals. Special programmes were also taken up to meet the needs of delinquents, destitute, handicapped and other groups of children. For this, extensive training was provided to childcare functionaries engaged in carrying out different kinds of programmes for children. In addition, the Government of India passed the Protection of Civil Rights Act, 1955 and ratified the International Labour Organization (ILO) Convention No. 5 of 1919 on minimum age of work in industry.
The Second Five-Year Plan (1956-61) aimed at stabilizing the child welfare system. As such, the activities of CSWB were further strengthened. In 1956, the Suppression of Immoral Traffic in Women and Girls Act (SITA) was enacted in pursuance of Government of India’s ratification of the United Nations Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others in the year 1950. Some of the other legislations enacted in the year 1956 were the Hindu Adoption and Maintenance Act, Hindu Minority and Guardianship Act, Women’s and Children’s Institutions (Licensing) Act and Young Persons (Harmful Publications) Act. In 1957, the Welfare Extension Projects were reviewed. This led 22 to the launching of Coordinated Welfare Extension Projects in 1958.
The Central and State Governments also stepped in to share the responsibility of implementing the schemes and programmes for destitutes and delinquents under the Children’s Act, 1960. Special programmes were also undertaken for education, training and rehabilitation of handicapped children. During the Plan period, existing health, nutrition and education services were further strengthened and expanded. In 1957, the National Bravery Award Scheme was instituted and 14 November, which also happens to be the birthday of our first Prime Minister, Pt. Jawaharlal Nehru was declared as Universal Children’s Day. At the international level, the United Nations General Assembly adopted the Declaration of the Rights of the Child on 20 November, 1959. Prior to this, in 1948, the United Nations General Assembly had adopted the Universal Declaration of Human Rights (UDHR). The UDHR contains three specific references about children and their rights.
Article 25 states that “Motherhood and childhood are entitled to special care and assistance”, and adds that “All children, whether born in or out of wedlock, shall enjoy the same social protection”. In Article 26, which deals with the right to education, provision is made to ensure that “Parents have a prior right to choose the kind of education that shall be given to their children”. Thus, when the UDHR was adopted, it was assumed that children’s rights had been taken care of on the whole. But, this was, however, not found to be fully adequate to the situation of children in the post-Second World War era. Children were recognized as a particularly vulnerable group, who needed specific measures directed towards their protection and the provision of rights that would permit their full and healthy development. It was in this background that the General Assembly adopted the Declaration of the Rights of the Child mentioned above.
The 1959 Declaration expanded the five principles of the Geneva Declaration to ten basic principles. The gist of the ten principles adopted is given in Box (see next page). Like its predecessor, the 1959 Declaration was no more than a statement of good intentions. For, there was no way to bind the Member States of the United Nations in order to put the principles of the Declaration into practice. Besides, the Declaration looked at children purely as an investment. It did not accord any recognition to their autonomy, or for that matter to the importance of their wishes and feelings, nor any appreciation to their empowerment. The child only remained as an object of concern, rather than a person with self-determination. However, much before the 1959 Declaration came into existence, Indian Constitution had reflected all these 10 principles including the articles contained in the UDHR. Nonetheless, the Government of India subscribed to the principle.
Establishment of National Human Rights Commission and its function
The Government of India did realize the need to establish an independent body for promotion and protection of human rights. The establishment of an autonomous National Human Rights Commission (Commission) by the Government of India reflects its commitment for effective implementation of human rights provisions under national and international instruments. The Commission is the first of its kind among the South Asian countries and also few among the National Human Rights institutions, which were established, in early 1990s. The Commission came into effect on 12 October 1993, by virtue of the Protection of Human Rights Act 1993. Fourteen Indian States have also set up their own human rights commissions to deal with violations from within their states. The Act contains broad provisions related with its function and powers, composition and other related aspects.
Section(2) of the Act defines human rights as rights relating to life, equality and dignity of the individual guaranteed by Constitution or embodied in the international covenants and enforceable by Courts in India. The Indian Constitution provides certain rights for individuals in Part III of the Constitution, which are known as the fundamental rights. Part IV sets out the Directive Principles of State Policy. While the former guarantees certain rights to the individual, the latter gives direction to the State to provide economic and social rights to its people in specified manner. The word fundamental means that these rights are inherent in all the human beings and basic and essential for the individual. However, the rights guaranteed in the Constitution are required to be in conformity with the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights in view of the fact that India has become a party to these Covenants by ratifying them. The justifiability of fundamental rights is itself guaranteed under the Indian Constitution. The responsibility for the enforcement of the fundamental rights lies with the Supreme Court by virtue of Article 32 and by Article 226 to the High Courts.
- Constitution of the National Human Rights Commission the Constitution of the Commission dealt with in Chapter II of the Act. Section 3 of the Act says “the Central government shall constitute a body to be known to the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.
- The Commission shall consist of:-
(a) A Chairperson who has been a Chief Justice of the Supreme Court;
(b) One Member who is, or has been a judge of the Supreme Court;
(c) One Member who is, or has been the Chief Justice of the High Court;
(d) Two members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.
- The Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled Castes and Scheduled Tribes and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of section
- There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as it may delegate to him.
- The headquarters of the Commission shall be Delhi and the Commission may, with the previous approval of the Central Government, establish offices at other places in India.
The appointment of the Chairperson and other Members are elaborately discussed under Section 4 of the Act. The other provisions relate to the removal of a member of the Commission, the term of office of Members, a member to act as chairperson or to discharge his functions in certain circumstances, the terms and conditions of service of members vacancies, etc., not to invalidate the proceedings of the Commission, the procedure to be regulated by the Commission, the officers and the other staff of the Commission.
Functions and Powers of the Commission
Wide powers and functions have been given to the Commission under section12 of the Act. The paragraph (a) of section 12 provides, that the Commission can enquire suo moto action against any public servant against whom a complaint has been registered for violation of human rights. Section 12(b) provides that the Commission can intervene in any proceeding involving any allegation of a violation of human rights pending before a Court with the approval of such Court. Section 12(c) empowers the Commission to visit any jail or other institution prior intimation to the State Government, for the purpose of mainly monitoring prison or custodial jurisprudence. The Commission can make recommendations to State Governments on the basis of such visits.
The Commission found after visiting many jails that pathetic conditions prevailed in jails in which prisoners are forced to live. In its view this is not due to a lack of ideas but due to apathy and lack of priority accorded to prison conditions and the rights of prisoners and under trials. The Commission has already initiated action to improve prison conditions in India, and started studying all prevailing reports related with prisons. The Commission has recommended the preparation of a new All India Jail Manual and also suggested the revision of the old Indian Prison Act of 1894. The Commission sought help from all who believe that human dignity must not be left when a person enters the gate of jail.
Section 12(d) empowers the Commission to review the safeguards provided under the Constitution or any law for the time being in force for the protection of human rights and also to recommend measures for their effective implementation. Under Section 12(e) there is a separate provision to review the causes of terrorism, which inhibits the enjoyment of human rights, and to recommend appropriate remedial measures. Section 12(f) provides for the study of all treaties related with international human rights instruments and the making of recommendations for their effective implementation. Section 12 (g) provides for promotion of research in the field of human rights. Section 12(h) empowers the Commission to spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publication, the media, seminars and other available means. Section 12(I) empowers the Commission to encourage the efforts of Non- governmental organizations (NGOs) working in the field of human rights. Lastly, Section 12(j) provides, such other functions as it may consider necessary for the promotion of human rights.
Functional Approach of the Commission
The responsibility entrusted to the Commission under the Act of 1993 cannot be adequately fulfilled without the development of close ties between the Commission and NGOs. For the Commission, it is not just a matter of statutory obligation under Section 12(I) of the Act. The Commission recognized that the cause of human rights has much to gain both from the practical help and from the constructive criticism that NGOs and the Commission can bring to bear in their mutual interaction and growing relationship The Commission from very beginning associated NGOs with the inquiry of complaints. In several places, during visits by the Commission, NGOs have boldly come forward with evidence of wrong-doing in relation to specific complaints addressed to the Commission.
The Commission acknowledged that the promotion and protection of human rights requires the courage and commitment that NGOs bring to bear in their endeavors and that it is for this reason that the country has much to gain by encouraging their efforts, whether the NGOs are national or international. Investigation Division
There is a well organized investigation division within the Commission. The primary duty of this investigation division is to look into complaints received by the Commission. For this purpose the investigation team makes on the spot investigations. The Act outlines the investigative role of the Commission. Subsection 1(b) of Section 11 provides, “Such police and investigative staff under and officer not below the rank of a Director General of Police and such other officers and staff as may be necessary for the efficient performance of the functions of the Commission.”
Inquiry into Complaints a considerable increase in public awareness of the work of the Commission has been observed. This is reflected in the vast increase in the number of the complaints of human rights violations received by the Commission over the years. Many of the cases received by the Commission were of great poignancy, but they could not be entertained by the Commission because of the Regulation 8 of the Commission. The Commission broadly divides the cases in these following categories: (1) Custodial deaths; (2) Police excesses (Torture, Illegal detention/ unlawful arrest, false implication etc.; (3) Fake encounters; (4) Cases related to Women and Children; (5) Atrocities on Delist\Members of Minority community /Disabled (6) Bonded labour (7) Armed forces/ Para military forces and (8) other important cases. Once the Commission accepts a complaint, it seeks comments from the concerned government or authority regarding complaint.
After receiving the comments of the concerned authority a detailed note on the merits of the case is prepared for the the Commission After this, directions and recommendations of the Commission are communicated to the concerned government under Sections 18 and 19 of the Act. Since its establishment in October 1993, the Commission has directed compensation in the amount of Rs. 9,76, 68,634/ be paid in 559 cases. In year 2002-2003 the Commission recommended that compensation amounting to Rs. 31,40,000\- be paid in 39 cases. The Commission during the period beginning from 1 April 2002 to 31 March 2003 registered 68,779 cases and in the same period for 2001 to 2002 the Commission registered 69,083 cases in year 2001-2002. Out 68,779 cases registered in the year 2002 to 2003, 67, 354 complaints were of human rights violations, 1340 related to custodial deaths, 2 concerned custodial rapes and 83 related to police encounters were found. As on 31March 2003, the total number of cases before the Commission was 43,010, which included 9763 cases awaiting preliminary consideration and 33,247 cases in respect of which reports were either awaited from the authorities concerned or the reports had been received and are pending further consideration within the Commission.
In some of the cases the Commission may opt for a personal hearing with the petitioner or any other person on behalf of petitioner for appropriate disposal of this matter. This personal hearing will provide an opportunity for examining any witnesses, if any, in support of the complaint and hearing evidence in support of the petitioner’s stand. Once the Commission or any other person under its authority undertakes an investigation, the report of the investigation should be submitted within a week of its completion. In some cases, the Commission may allow further time for the submission of reports. If the Commission is not satisfied with any report it may direct fresh investigation for ascertaining the truth or enabling it to properly dispose of the matter. On receipt of the report, the Commission on its own motion, or if moved in the matter, may direct inquiry to be carried out by it and receive evidence in the course of such inquiry. Lastly under Section 8(12), the Commission or any of its members when requested by the Chairperson may undertake visits for on-the-spot study and where such a study is undertaken by one or members, a report thereon shall be furnished to the Commission as early as possible.
Steps after Inquiry
On the completion of inquiry, the Commission may take any of the following steps under Section 18 of this Act, namely:
(1) Where the inquiry discloses, the commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
(2) Approach the Supreme Court or the High Court concerned for such directions, orders or units as that Court may deem necessary.
(3) recommend to the concerned government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;
(4) Subject to the provisions of clause (5) provide a copy of the inquiry report to the petitioner or his representative; (5) The Commission shall send a copy of its inquiry report together with its recommendations to the concerned government or authority who shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission. It seems from the above provisions that the Commission is fully equipped to handle any situation, but in practice the Commission is powerless, when a State government refuses to comply with its recommendation. The Commission is endowed with only recommendatory power, and recommendations of the Commission are not legally binding. However, in most of the cases recommendations of the Commission have been complied with by the concerned government or authority, as is apparent from the prosecutions of several police officials, and the compensation awarded to victims in various cases.
National Human Rights Commission v. State of Arunachal Pradesh
The Commission under Article 32 of the Indian Constitution has filed a writ petition as a public interest petition before the Supreme Court of India. The Commission filed this petition mainly for the enforcement of fundamental rights of about 65,000 Chakma/ Hajong tribal’s under Article 21 of the Constitution.41 In this case a large number of refugees from erstwhile East Pakistan were displaced in 1964 due to Captain Hydel Project.
These displaced Chakmas had taken shelter in North-Eastern States of India, namely, in Assam and Tripura. There were two main issues involved in this case; conferring of citizenship; fear of persecution by certain sections of the Commission shall publish its inquiry report together with the comments of the concerned government or authority, if any, and the action taken or proposed to be taken by the concerned government or authority on the recommendations of the Commission.. Curtail this power of the Commission and the express power to make recommendations leads necessarily to this conclusion. Jurisdiction of the NHRC to deal with the complaints against armed forces is subject only to a restrictive procedure. the citizens of Arunachal Pradesh. Largely to these two issues NHRC was approached by two different NGOs.
In this case the Commission contended before the Court that the Commission found serving of quit notices by All Arunachal Pradesh Students Union (AAPSU) to Chakras and their attempted enforcement appeared to be supported by the officers of Arunachal Pradesh. The State government deliberately delayed the disposal of the matter by not furnishing the required response to NHRC and infect assisted in the enforcement of eviction of the Chakras from the State through its agencies.43
The Court after hearing the argument directed the government of Arunachal Pradesh to ensure the life and personal liberty of each and every Chakma residing within the State. The significance of this judgment also lies in clearing the doubts regarding the applicability of fundamental rights to refugees. This decision rules that foreigners are entitled to enjoy the protection of right to life and liberty under Article 21 of the Indian Constitution. Timely intervention by the Commission has saved the life of thousands of innocent Chakma refugees from AAPSU.
Indian Council of Legal Aid and Advice and others On 3rd December, 1996, the Commission took cognizance of a letter from Chaturanan Mishra, then Union Minister for Agriculture regarding starvation deaths due to the drought in Bolangir district of Orissa. In similar matter a Writ petition44 was filed on 23 December 1996 by the Indian Council of Legal Aid and Advice and others before the Supreme Court of India under Article 32 of the Constitution. The petition alleged that deaths by starvation continued to occur in certain districts of Orissa.45 The Supreme Court of India on 26th July 1997 t directed that since matter is seized with the NHRC and is expected to deliver some order, the petitioner can approach to the Commission. Realizing the urgency of the matter the Commission acted quickly and initially prepared an interim measure for the two years period and also requested the Orissa State Government to constitute a Committee to examine all aspects of the Land Reform question in the KBK Districts. A Special Reporter has been regularly monitoring the progress of implementation of its directions. The Commission observed that as starvation deaths reported from some pockets of the country are invariably the consequence of miss-governance resulting from acts of omission and commission on the part of the public servant. The Commission strongly supported the e view that to be free from hunger is a Fundamental Right of the people of the country. Starvation, hence, constitutes a gross denial and violation of this right.
The Commission organized a meeting with leading experts on the subject, in January, 2004 to discuss issues relating to Right to Food. The Commission has approved the constitution of a Core Group on Right to Food that can advise on issues referred to it and also suggest appropriate programmers, which can be undertaken by the Commission. By this decision it is firmly established in the context of India that economic, social and cultural rights are treated par with the civil and political rights before the India Courts and the Commission. India is amongst the view countries in the world, which have accorded justifiability of economic, social and cultural rights.
Punjab Mass Cremation Order
Two writ petitions were filed before the Supreme Court of India containing serious allegations about large-scale cremations resorted to by the Punjab Police of persons allegedly killed in what were termed as “encounters”. The main thrust of the Writ Petitions was that there were extra-judicial executions and hasty and secret cremations rendering the State liable for action. These petitions were largely relied on a press note of 16January 1995 by the Human Rights Wing of the Shiromani Akali Dal under the caption “Disappeared” “cremation ground”. The note alleged that the Punjab Police had cremated a large number of human bodies after labeling them as unidentified. The Supreme Court after examining the report submitted to the Court. Central Bureau of Investigation (CBI), relating to cremation of dead bodies observed that report indicates 585 dead bodies were fully identified, 274 partially identified and 1238 unidentified. The report discloses flagrant violation of human rights on a large scale. On 12 December 1996 the Court requested the Commission to have the matter examined in accordance with law and determine all the issues related with the case. Though matter is still pending before the Commission for final consideration, however, the Commission granted in some cases compensation amounting of Rupees Two Lakh Fifty thousand (Rs. 2, 50,000/-) to the next of kin of the 89 deceased persons. While granting the compensation the Commission relied on the laws developed by the Courts in India in the field of evolving legal standards for remedial, reparatory, punitive and exemplary damages for violation of Human Rights. The Commission observed, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressed of the established infringement of the fundamental right of life of a citizen by the public servants and the State. The claim of the citizen is based on the principle of strict liability to which the defiance of sovereign immunity is not available and the citizen must receive the amount of compensation
Gujarat Communal Riot
The commission took suo motu action on communal riot which took place in Gujarat in early 2002, the decision to take action was based of media reports, and both print and electronic. The Commission also received an e-mail communication requesting the Commission to intervene. A team of the Commission had visited Gujarat between19 to 22 March 2002 and prepared a confidential report, which is latter made to the public. The release of the confidential report was initially withheld to provide an opportunity to the Gujarat government to comment on its contents, given the Sensitivity of the allegations contained in it.
Unfortunately, the State government did not bother much about this report. The Commission observed that the State has failed to discharge its primary and inescapable responsibility to protect the rights to life, liberty, equality and dignity of all of those who constitute it. The principle of res ipsa loquitur (the affair speaking for itself) applies in this case in assessing the degree of State responsibility in the failure to protect the Constitutional rights of the people of Gujarat. The responsibility of the State extended not only to the acts of its own agents, but also to those of non-State players within its jurisdiction and to any action that may cause or facilitate the violation of human rights. Recently the US government has revoked visa to Chief Minister Narendra Modi because of the Commission’s report on Gujarat.
From its inception, the Commission attracted much suspicion because of its status as a government institution. However, in twelve years period it was able to establish its integrity and commitment. The Commission was able to demonstrate its ability to work independently and impartially, which is borne out by its recommendations. Even if the Commission is a very small step in the daunting task of the implementation of human rights at the national level, it remains a very significant step. Considering India’s extensive territorial domain, the vastness of its population and the complexity of social structure, cases of violation of rights, whether attributable to the agencies of the State or to the private individuals or groups, may occur despite its best efforts.