INDIAN CONSTITUTION, UDHR, ICCPR AND ICESCR: ON FOR HUMAN RIGHTS
January 26, 2017 | Author: Gautam Jayasurya | Category: N/A
Short Description
Gautam Jayasurya, 2nd Year B.A (Hons) LLB, Rajiv Gandhi National University of Law, Patiala, Punjab. SSRN Author Page: ...
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What are human rights? ï ï
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Human rights are said to be inherent, inalienable and universal. universal. They are inherent, in that they belong to everyone because of their common humanity. humanity. They are inalienable, in that people cannot give them up or be deprived of them by governments governments.. They are universal, in that they apply regardless of distinctions such as race, sex, language or religion. religion. Human rights govern how individual human beings live in society and with each other, as well as their relationship with the State and the obligations that the State has towards them them.. Human rights aim to recognise and protect the dignity of all human beings whatever their status or condition in life. life. human rights are not the gift or bounty of any political sovereign through legislation or any edict, but are rights inherent in human existence. The purpose of any law dealing with these rights is merely to recognize them, to regulate their exercise and to provide for their enforcement, and the ancillary matters.
| | | || | ï Slaves were property and could be sold ï Masters could do as they like with their slaves ï Masters could destroy slaves ï Slaves could be killed ï Slaves couldn¶t marry, Slaves couldn¶t be educated ï ï couldn¶t couldn¶t ¢ ï ¢ ï ¢ ï
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Most of the world¶s major philosophies, religions and cultures have recognised similar concepts in one form or another for centuries, but it took the atrocities that occurred during World War II to galvanise the international community into developing common standards and processes for the protection of human rights. rights. In 1945 the United Nations developed a Charter based on the precedents included in the Nuremburg Judgement . The Charter¶s primary purpose was to establish a system for ensuring global peace and security that included µpromoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion¶ (Article 1, para..3). para Documents asserting individual rights, such the Magna Carta (1215), 1215), the English Bill of Rights (1689), 1689), the French Declaration on the Rights of Man and Citizen (1789), 1789), and the US Constitution and Bill of Rights (1791 1791)) are the written precursors to many of today¶s human rights documents.. Yet many of these documents, when originally translated into documents policy, O O O, people of colour, colour, and members of certain social, religious, economic, and political groups. groups. Nevertheless, oppressed people throughout the world have drawn on the principles these documents express to support revolutions that assert the right to selfselfdetermination.. determination
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| O The idea of human rights emerged stronger after World War II. II. The extermination by Nazi Germany of over six million Jews, Sinti and Romani (gypsies), homosexuals, and persons with disabilities horrified the world. world. Trials were held in Nuremberg and Tokyo after World War II, II, (judges from victorious nations, therefore the impartiality of the decisions given by these courts were questionedquestioned-you can not be judge in your own cause, so it was the sheer violation of human rights) rights) and officials from the defeated countries were punished for committing war crimes, "crimes against peace," and "crimes against humanity. humanity." Governments then committed themselves to establishing the United Nations, with the primary goal of bolstering international peace and preventing conflict. conflict. People wanted to ensure that never again would anyone be unjustly denied life, freedom, food, shelter, and nationality. nationality. The essence of these emerging human rights principles was captured in President Franklin Delano Roosevelt¶s 1941 State of the Union Address when he spoke of a world founded on four essential freedoms: freedoms: freedom of speech and religion and freedom from want and fear. fear. The calls came from across the globe for human rights standards to protect citizens from abuses by their governments, standards against which nations could be held accountable for the treatment of those living within their borders.. borders
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O O . Human rights are universal and inalienable. inalienable. All people everywhere in the world are entitled to them. them. The human person in whom they inhere cannot voluntarily give them up. up. Nor can others take them away from him or her. her. As stated in article 1 of the Universal Declaration of Human Rights, ³All human beings are born free and equal in dignity and rights´. rights´.
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| . Human rights are indivisible. indivisible. Whether of a civil, cultural, economic, political or social nature, they are all inherent to the dignity of every human person. person. Consequently, they all have equal status as rights, and cannot be ranked, a priori, in a hierarchical order. order.
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O OO. The realization of one right often depends, wholly or in part, upon the realization of others. others. For instance, realization of the right to health may depend, in certain circumstances, on realization of the right to education or of the right to information. information.
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. All individuals are equal as human beings and by virtue of the inherent dignity of each human person. person. All human beings are entitled to their human rights without discrimination of any kind, such as race, colour, colour, sex, ethnicity, age, language, religion, political or other opinion, national or social origin, disability, property, birth or other status as explained by the human rights treaty bodies. bodies.
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. Every person and all peoples are entitled to active, free and meaningful participation in, contribution to, and enjoyment of civil, economic, social, cultural and political development in which human rights and fundamental freedoms can be realized. realized.
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O . States and other dutyduty-bearers are answerable for the observance of human rights. rights. In this regard, they have to comply with the legal norms and standards enshrined in human rights instruments.. Where they fail to do so, aggrieved rightsinstruments rights-holders are entitled to institute proceedings for appropriate redress before a competent court or other adjudicator in accordance with the rules and procedures provided by law
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The Virginia Bill of Rights (1776) 1776) proclaimed that: that: ³All men are by nature equally free and independent and have certain inherent rights, rights, of which, when they enter a state of society they cannot by any compact deprive or divest their posterity: posterity: namely, the enjoyment of life and liberty, with the means of acquiring and possessing property and pursuing and obtaining happiness..´ (future generations) happiness The American Declaration of Independence further said: said: ³We hold these truths to be selfself-evident: evident: that all men are created equal; equal; that they are endowed by their creator with certain inalienable rights; rights; that among these are life, liberty and the pursuit of happiness. happiness.´ The French Declaration [1789] 1789] said said:: ³Men are born and remain free and equal in rights« rights« the purpose of all political association is the conservation of the natural and inalienable rights of man: man: these rights are liberty, property, security and resistance to oppression. oppression.´
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The Magna Carta is a document that King John of England (1166 - 1216 1216)) was forced into signing. signing. King John was forced into signing the charter because it greatly reduced the power he held as the King of England and allowed for the formation of a powerful parliament. parliament. The purpose of the Magna Carta was to curb the King and make him govern by the old English laws. laws. King John signed the document which was originally called the 'Articles of the Barons' on June 10 10,, 1215 1215.. The content of the Magna Carta was drafted by Archbishop Stephen Langton and the most powerful Barons of England England..
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In 1205 King John quarrelled with the Pope Innocent III about who should be archbishop of Canterbury. Canterbury. The Pope wanted a man named Stephen Langton to be archbishop, but King John swore he should never come to England. England. In 1209 The pope retaliated, excommunicated King John and banned all church services in all churches. churches. Pope Innocent made the king and people pay him money whenever he demanded it it.. (Dominance of the Church). Church). Taxes levied by King John were huge. huge. In 1212 King John imposes taxes on the Barons.. Barons King John quarrels with the Barons over his methods of ruling England. England. The Barons and Stephen Langton decided to curb the King and make him govern by the old English laws. laws. The Barons took up arms against King John John.. The Barons captured London in May 1215 1215.. King John signed and sealed the document on June 10 10,, 1215 1215.. The royal chancery produced a formal royal grant, based on the agreements reached at Runnymede, which became known as Magna Carta. Carta.
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At the threshold of the new century, the world leaders gathered in New York for the World Summit to consider the challenges faced in the new century, and they set out their aims in their Millennium Declaration. (Adopted Adopted by the United Nations General Assembly in its resolution 55/ 55/2 of 8 September 2000) 2000). By the year 2015, all United Nations member states have pledged to meet the goals: Eradicate extreme poverty and hunger Achieve universal primary education Promote gender equality and empower women Reduce child mortality Improve maternal health Combat HIV/AIDS, malaria and other diseases Ensure environmental sustainability Develop a global partnership for development
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The then UN Secretary General, Kofi Annan in his UN Day (24 October, 2000) message referred to the Declaration: ³They pledged themselves to free their peoples ± from the scourge of , from abject and dehumanizing O , and from the threat of living on a O O with few natural resources left. They undertook to promote O O O ; to protect O and other vulnerable people; and to meet the O OO . And they promised to make the United Nations itself more effective, as an instrument for pursuing all those aims.´
The Universal Declaration of Human Rights ï
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Member states of the United Nations pledged to promote respect for the human rights of all. all. To advance this goal, the UN established a Commission on Human Rights and charged it with the task of drafting a document spelling out the meaning of the fundamental rights and freedoms proclaimed in the Charter. Charter. The Commission was guided by Eleanor Roosevelt¶s forceful leadership. leadership. On December 10, 10, 1948, 1948, the Universal Declaration of Human Rights (UDHR) was adopted by the 56 members of the United Nations. Nations. The vote was unanimous, although eight nations chose to abstain. abstain. The UDHR, commonly referred to as the international Magna Carta, Carta, extended the revolution in international law ushered in by the United Nations Charter ± namely, that how a government treats its own citizens is now a matter of legitimate international concern, and not simply a domestic issue. issue. It claims that all rights are interdependent and indivisible indivisible.. Its Preamble asserts that that:: Ô
The influence of the UDHR has been substantial. substantial. Its principles have been incorporated into the constitutions of most of the more than 185 nations now in the UN.. Although the declaration is not a legally enforceable and binding document, UN the Universal Declaration has achieved the status of customary international law because people regard it "as a common standard of achievement for all people and all nations. nations."
The Universal Declaration of Human Rights continued« ï
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With the goal of establishing mechanisms for enforcing the UDHR, the UN treaties:: the Commission on Human Rights proceeded to draft two treaties International Covenant on Civil and Political Rights (ICCPR) and its optional Protocol and the International Covenant on Economic, Social and Cultural Rights (ICESCR). (ICESCR). Together with the Universal Declaration, they are commonly referred to as the International Bill of Human Rights. Rights. The ICCPR focuses on such issues as the right to life, freedom of speech, religion, and voting. voting. The ICESCR focuses on such issues as food, education, health, and shelter. shelter. Both covenants trumpet the extension of rights to all persons and prohibit discrimination. discrimination. It was in 1946 that a Human Rights Commission was formed under the United Nations on international basis. basis. On 10 December 1948 the United Nations Organisation adopted the well known Declaration of Human Rights.. That declaration ensures to every one in the world his birthright to Rights lead a life without any discrimination on the basis of caste, religion, race, language, citizenship, conviction, culture, family, sex, and so on on..
The Universal Declaration of Human Rights continued« ï
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The UDHR contains a preamble and 30 articles, which include a general prohibition of discrimination and set forth various types of rights and obligations including political and civil rights (such as the right to life, liberty and security of person, freedom from slavery and servitude, freedom from torture and cruel, inhuman or degrading treatment or punishment, the right to recognition before the law, and the freedoms of thought, conscience, religion, expression, opinion, assembly and association) and economic, social and cultural rights (among them the rights to social security, work, education, and to a standard of living adequate for health and wellwell-being). being). Although the UDHR is not a legally binding instrument (i (i..e. it does not create legal obligations for States), it has over time been widely accepted as a universal agreement on fundamental human rights norms that duty bearers are expected to respect, protect and fulfill. fulfill. It therefore carries significant moral weight, and a number of its provisions now constitute customary international law.. law The UDHR has inspired a large number of legal documents at the national, regional and international levels. levels. Many subsequent international instruments are based on its catalogue of fundamental rights and freedoms. freedoms.
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The Universal Declaration of Human Rights continued« Can there be any hierarchy among human rights? The 1948 Universal Declaration of Human Rights makes it clear that human rights of all kinds² kinds²economic, political, civil, cultural and social² social²are of equal validity and importance. importance. This fact has been reaffirmed repeatedly by the international community, for example in the 1986 Declaration on the Right to Development, the 1993 Vienna Declaration and the nearnear-universally ratified Convention on the Rights of the Child. Child. So there is no hierarchy among human rights i.e. all human rights are equally important. important. (answer to the above mentioned question is µNO¶) In general, To respect human rights means simply not to interfere with their enjoyment.. For instance, States should refrain from carrying out forced enjoyment evictions and not arbitrarily restrict the right to vote or the freedom of association.. association To protect human rights means to take steps to ensure that third parties do not interfere with their enjoyment. enjoyment. For example, States must protect the accessibility of education by ensuring that parents and employers do not stop girls from going to school. school. To fulfil human rights means to take steps progressively to realize the right in question.. question
The Universal Declaration of Human Rights continued« ï
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The Declaration not only creates duties for States, but makes it clear that individuals too, have responsibilities. responsibilities. In international human rights standards (International Council on Human Rights Policy, 1999), 1999), we find three kinds of duties that apply to individuals: individuals: the duty of individuals vested with State authority to respect, promote and protect human rights
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the duty of individuals to exercise their rights responsibly
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more general duties of individuals to others and their community. community.
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Article 29 specifically states that µeveryone has duties to the community in which alone the free and full development of his personality is possible. possible.¶ The rights in the Declaration fall roughly into two categories categories.. The first consists of civil and political rights, such as freedom of opinion and expression and the right to justice. justice. These are often recognised by States in Constitutions or laws such as Bills of Rights. Rights. The second comprises economic, cultural and social rights, such as the right to work, or to µa reasonable standard of living¶. living¶.
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The Convention on the Elimination of All Forms of Racial Discrimination The Convention on the Prevention and Punishment of the Crime of Genocide The Convention on the Political Rights of Women The Slavery Convention of 1926 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ICESCR) (1966 1966), ), The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), The Convention on the Rights of the Child (CRC), The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW), The International Convention on the Rights of Persons with Disabilities
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In order to give the standards in the Declaration legal force, two major covenants were developed in the years following its adoption. adoption. One deals with civil and political rights ± the International Covenant on Civil and Political Rights (ICCPR) ± and the other with economic, social and cultural rights ± the International Covenant on Economic, Social and Cultural Rights (ICESCR). (ICESCR). Both were adopted by a special resolution of the UN General Assembly in 1966 and came into effect when the necessary number of countries had ratified them in 1976. 1976. The two covenants and the Declaration are often referred to as the International Bill of Rights. Rights. The concepts in the Declaration have been further refined in a series of specialist treaties or conventions that address matters of concern to particular groups such as women and children. children. As with the two major covenants, these conventions are binding on the States that ratify them. them. The other major treaties are the International Convention on the Elimination of All Forms of Racism (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (UNCROC).. Some of these instruments are supplemented by Optional (UNCROC) Protocols that allow individuals to take complaints to the relevant UN body after they have exhausted their domestic remedies. remedies.
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HOW TO MAKE INTERNATIONAL RULES APPLICABLE AT DOMESTIC OR NATIONAL LEVEL? Freedom of the concerned State to apply International Law as it is or to apply it with modifications at the municipal level. level. Freedom to ratify it or not. not. How the International instruments are developed: developed: They are developed by a process of negotiation among United Nations member States to produce a set of standards acceptable to all of them.. Individual States then decide whether to accede to, or ratify, a them treaty.. treaty Ratification is acceptance by a State that it will be bound by the terms of a treaty and will guarantee their implementation to its people.. In ratifying an instrument a State recognises the people international law and accepts an obligation to respect, protect, promote and fulfil the rights in a treaty. treaty. The duty to respect a right requires the State to refrain from carrying out any actions which violate it it.. The duty to protect requires action by the State to prevent violation by others. others. The duty to promote means a State should raise awareness of the right. right. The duty to fulfil requires the State to take steps to ensure the full realisation of the right. right.
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(1) PROTECTION OF RIGHT TO LIFE AND PERSONAL LIBERTY LIBERTY.. (2) RIGHT TO PRIVACY PRIVACY.. (3) RIGHT TO OWN PROPERTY PROPERTY.. (4) FREEDOM FROM TORTURE TORTURE.. (5) INHUMAN AND DEGRADING TREATMENT TREATMENT.. (6) FREEDOM OF THOUGHT THOUGHT.. (7) CONSCIENCE AND RELIGION RELIGION.. (8) FREEDOM OF MOVEMENT MOVEMENT.. (9) RIGHT OF SELF SELF--DETERMINATION DETERMINATION.. (freely determine their political status and freely pursue their economic, social and cultural development. development.) (10 10)) GENDER EQUALITY (11 11)) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. punishment. (12 12)) slavery, forced or compulsory labour PROHIBITED. PROHIBITED. (13 13)) No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation (14 14)) Right to vote (Adult Suffrage)
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(1) RIGHT OF SELF SELF--DETERMINATION (2) NO DISCRIMINATION DISCRIMINATION.. (3) equal right of men and women (4) the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts (5) enjoyment of just and favourable conditions of work (6) The right of everyone to form trade unions and join the trade union of his choice (7) right of everyone to social security, including social insurance (8) adequate standard of living (9) highest attainable standard of physical and mental health. health. (10 10)) right of everyone to education (11 11)) All reports shall be submitted to the SecretarySecretary-General of the United Nations, who shall transmit copies to the Economic and Social Council for consideration in accordance with the provisions of the present Covenant; Covenant;
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Civil and political rights are considered to be absolute and to take effect as soon as a State ratifies the Covenant. Covenant. The rights apply equally and without discrimination. discrimination. The obligations to ensure equality and nonnon-discrimination are described as nonnon-derogable derogable.. That is, once a State ratifies the covenant it cannot deviate from them under any circumstances. circumstances.
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The obligations under the ICCPR can be limited in two ways only only:: Article 4 permits temporary derogation in situations of public emergency that threaten the life of the nation. nation. Such limitations are permitted only µto the extent strictly required by the exigencies of the situation¶. situation¶. For example, in some closely defined circumstances Article 9, relating to arrest and detention, may not apply. apply. Some of the articles include limitation clauses. clauses. For example, Article 19 (which relates to freedom of expression) allows legal restrictions if they are to protect the rights or reputations of others, in situations of public emergency, and if they are prescribed by law. law.
The relationship between civil and political rights and economic, social and cultural rights ï
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The 1993 Vienna World Conference reaffirmed that human rights are indivisible and interrelated. interrelated. In other words, no right is superior to another and different rights should not be considered in isolation, since the enjoyment of one will often depend on the realisation of another.. another Originally it was intended that a single treaty would address both social and economic, and civil and political rights. rights. Two separate treaties were eventually developed, because: because: (1) civil and political rights were considered to be enforceable, enforceable, or justiciable,, while economic, social and cultural rights were not justiciable (2) civil and political rights were thought to be immediately applicable,, while social and economic rights could only be applicable implemented progressively (3) generally speaking, civil and political rights were considered to be rights of the individual µagainst¶ the State (that is, against unlawful and unjust action of the State) while social and economic rights were rights that the State would have to take positive action to promote (United Nations, 1955) 1955).
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Article 28 says that there shall be established a Human Rights Committee.. It shall consist of eighteen members and shall Committee carry out the functions hereinafter provided. provided. The Committee shall be composed of nationals of the States Parties to the present Covenant who shall be persons of high moral character and recognized competence in the field of human rights, rights, consideration being given to the usefulness of the participation of some persons having legal experience. experience. Article 29: 29: The members of the Committee shall be elected by secret ballot from a list of persons possessing the qualifications prescribed in article 28 and nominated for the purpose by the States Parties to the present Covenant. Covenant. Each State Party to the present Covenant may nominate not more than two persons. persons. These persons shall be nationals of the nominating State. State. A person shall be eligible for renomination renomination..
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Article 30: 30: At least four months before the date of each election to the Committee, other than an election to fill a vacancy, the Secretary--General of the United Nations shall address a written Secretary invitation to the States Parties to the present Covenant to submit their nominations for membership of the Committee within three months.. months The SecretarySecretary-General of the United Nations shall prepare a list in alphabetical order of all the persons thus nominated, with an indication of the States Parties which have nominated them, and shall submit it to the States Parties to the present Covenant no later than one month before the date of each election. election. Elections of the members of the Committee shall be held at a meeting of the States Parties to the present Covenant convened by the Secretary General of the United Nations at the Headquarters of the United Nations Article 32: 32: The members of the Committee shall be elected for a term of four years years.. They shall be eligible for re re--election if renominated.. renominated
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Article 33: 33: If, in the unanimous opinion of the other members, a member of the Committee has ceased to carry out his functions for any cause other than absence of a temporary character, the Chairman of the Committee shall notify the SecretarySecretary-General of the United Nations, who shall then declare the seat of that member to be vacant. vacant. In the event of the death or the resignation of a member of the Committee, the Chairman shall immediately notify the SecretarySecretaryGeneral of the United Nations, who shall declare the seat vacant from the date of death or the date on which the resignation takes effect.. effect Article 34: 34: fill the vacancy Article 35: 35: The members of the Committee shall, with the approval of the General Assembly of the United Nations, receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide, having regard to the importance of the Committee's responsibilities. responsibilities.
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Article 36: 36: The SecretarySecretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Covenant. Covenant. Article 37: 37: The SecretarySecretary-General of the United Nations shall convene the initial meeting of the Committee at the Headquarters of the United Nations. Nations. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure. procedure. The Committee shall normally meet at the Headquarters of the United Nations or at the United Nations Office at Geneva. Geneva. Article 38: 38: Every member of the Committee shall, before taking up his duties, make a solemn declaration in open committee that he will perform his functions impartially and conscientiously.. conscientiously
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Article 39 : The Committee shall establish its own rules of procedure, procedure, but these rules shall provide that: that: (a) Twelve members shall constitute a quorum; quorum; (b) Decisions of the Committee shall be made by a majority vote of the members present.. present Article 40: 40: The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights: rights: (a) Within one year of the entry into force of the present Covenant for the States Parties concerned; concerned; (b) Thereafter whenever the Committee so requests. requests. All reports shall be submitted to the SecretarySecretary-General of the United Nations, who shall transmit them to the Committee for consideration consideration.. Reports shall indicate the factors and difficulties, difficulties, if any, affecting the implementation of the present Covenant. Covenant. The SecretarySecretary-General of the United Nations may, after consultation with the Committee, transmit to the specialized agencies concerned copies of such parts of the reports as may fall within their field of competence.. competence The Committee shall study the reports submitted by the States Parties to the present Covenant. Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant. Covenant.
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Article 41: 41: A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. declaration. Communications received under this article shall be dealt with in accordance with the following procedure: procedure: (a) If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant, it may, by written communication, bring the matter to the attention of that State Party. Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending, or available in the matter; matter; (b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, Committee, by notice given to the Committee and to the other State; State; (c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. law. This shall not be the rule where the application of the remedies is unreasonably prolonged; prolonged;
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The Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant;; Covenant In any matter referred to it, the Committee may call upon the States Parties concerned, to supply any relevant information; information; The States Parties concerned, shall have the right to be represented when the matter is being considered in the Committee and to make submissions orally and/or in writing; writing; (h) The Committee shall, shall, within twelve months submit a report: report: (i) If a solution is reached, reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached; reached; (ii) If a s n n is not reached, reached, the Committee shall confine its report to a brief statement of the facts; facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. report. In every matter, the report shall be communicated to the States Parties concerned.. concerned
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OOO | O O Article 42: 42: If a matter referred to the Committee in accordance with article 41 is not resolved to the satisfaction of the States Parties concerned, the Committee may, with the prior consent of the States Parties concerned, appoint an ad hoc Conciliation Commission. Commission. The good offices of the Commission shall be made available to the States Parties concerned with a view to an amicable solution of the matter on the basis of respect for the present Covenant; Covenant; The Commission shall consist of five persons acceptable to the States Parties concerned.. If the States Parties concerned fail to reach agreement within three concerned months on all or part of the composition of the Commission, Commission, the members of the Commission concerning whom no agreement has been reached shall be elected by secret ballot by a twotwo-thirds majority vote of the Committee from among its members.. members The members may be nationals of the States Parties concerned, or of a State not Party to the present Covenant, or of a State Party which has not made a declaration under article 41. 41. The Commission shall elect its own Chairman and adopt its own rules of procedure. procedure. The information received and collated by the Committee shall be made available to the Commission and the Commission may call upon the States Parties concerned to supply any other relevant information. information. When the Commission has fully considered the matter, matter, but in any event not later than twelve months after having been seized of the matter, it shall submit to the Chairman of the Committee a report for communication to the States Parties concerned:: concerned
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(a) If the Commission is unable to complete its consideration of the matter within twelve months, months, it shall confine its report to a brief statement of the status of its consideration of the matter; matter; (b) If an amicable solution to the matter on tie basis of respect for human rights as recognized in the present Covenant is reached, reached, the Commission shall confine its report to a brief statement of the facts and of the solution reached;; reached (c) If a solution is not reached, reached, the Commission's report shall embody its findings on all questions of fact relevant to the issues between the States Parties concerned, and its views on the possibilities of an amicable solution of the matter. matter. This report shall also contain the written submissions and a record of the oral submissions made by the States Parties concerned; concerned; The States Parties concerned shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the SecretarySecretary-General of the United Nations. Nations. The SecretarySecretary-General of the United Nations shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States Parties concerned,
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Article 43: 43: The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under article 42, 42, shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations. Nations. Article 44: 44: The provisions for the implementation of the present Covenant shall apply without prejudice to the procedures prescribed in the field of human rights by or under the constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them. them. Article 45: 45: The Committee shall submit to the General Assembly of the United Nations, through the Economic and Social Council, an annual report on its activities. activities.
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| | || Articles 1414-18 on Right to Equality, Articles 1919-22 on Right to Freedom, Articles 2323-24 on Right against Exploitation, Articles 2525-28 on Right to Freedom of Religion, Articles 2929-31 on Cultural and Educational Rights, Articles 3232-35 on Right to Constitutional Remedies. Remedies.
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14. Equality before law. 14. law. (available to both citizens and non--citizens) non citizens).. 15. Prohibition of discrimination on grounds of religion, 15. race, caste, sex or place of birth. birth. ( even laws can be made in favour of Women, children, schedule caste and schedule tribes. tribes.) 16. Equality of opportunity in matters of public 16. employment 17.. Abolition of Untouchability. 17 Untouchability. 18.. Abolition of titles. 18 titles.
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The Preamble states: states: ³ WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: citizens: JUSTICE, social, economic and political; political; LIBERTY of thought, expression, belief, faith and worship; worship; EQUALITY of status and of opportunity; opportunity; and to promote among them all all;; FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; Nation; IN OUR CONSTITUENT ASSEMBLY this twentytwenty-sixth day of November, 1949, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION CONSTITUTION..´ Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458 458,, the Supreme Court observed that ³If fundamental rights are unamendable, it will lack dynamism and will lag behind the changes in the society.. society In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 The Supreme Court as observed that ³the fundamental rights are also subject to amendment by the Parliament and there by the Court maintained the dynamism. dynamism.´ Golaknath v. State of Punjab, AIR 1967 SC 1643 1643.., It has been observed that: that: the Fundamental rights has been given an important position. position. No authority including the parliament can amend the fundamental rights. rights. Article 368 did not confer upon Parliament the power to amend the Constitution Kesavananda Bharati v. State of Kerala, (1973) 1973) 4 SCC 225 225:: The amending power of the parliament is limited to the limit of not violating the basic structure of the Constitution. Constitution.
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O O O O OÎ Î Ä Ä explained that the concept of basic structure included: included: supremacy of the Constitution republican and democratic form of government secular character of the Constitution separation of powers between the legislature, executive and the judiciary federal character of the Constitution
O Ä O Ä added two more basic features to this list: O list: the mandate to build a welfare state contained in the Directive Principles of State Policy unity and integrity of the nation
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OO O O . identified a separate and shorter list of basic features: features: sovereignty of India democratic character of the polity unity of the country essential features of the individual freedoms secured to the citizens mandate to build a welfare state
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O Ä stated that elements of the basic features were to be found in the Preamble sovereign democratic republic republic parliamentary democracy democracy three organs of the State
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Forty-second amendment (passed in 1976 and came into effect on January Forty3, 1977 1977)). Among other things the amendment: amendment: a) gave the Directive Principles of State Policy precedence over the Fundamental Rights b) laid down that amendments to the Constitution made in the past or those likely to be made in future could not be questioned in any court on any ground;; ground c) removed all amendments to fundamental rights from the scope of judicial review and d) removed all limits on Parliament's power to amend the Constitution under Article 368. 368. Minerva Mills Ltd. Ltd. v Union of India (1980) 1980) 3 SCC 625 625:: They maintained that clauses Article 368 conferred unlimited power on Parliament to amend the Constitution. Constitution. They said that this deprived courts of the ability to question the amendment even if it damaged or destroyed the Constitution's basic structure. structure.
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O All human beings are born free and equal in dignity and rights. rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. brotherhood. O All are equal before the law and are entitled without any discrimination to equal protection of the law. law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.. discrimination
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Article 2 (2): The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.. status O The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Covenant.
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Article 19 of the Indian Constitution: Constitution: Protection of certain rights regarding freedom of speech, etc. etc. (1) All citizens shall have the rightright(a) To freedom of speech and expression; expression; (b) To assemble peaceably and without arms; arms; (c) To form associations or unions; unions; (d) To move freely throughout the territory of India; India; (e) To reside and settle in any part of the territory of India; India; and (f) 2 . . (omitted by 44th Amendment Act, 1978 (Now under Article 300--A) 300 A).. {(Article 17 (2) (UDHR)} (g) To practise any profession, or to carry on any occupation, trade or business. business. These freedoms are not absolute and are subject to reasonable restrictions. restrictions.
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interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (6) Nothing in subsub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub--clause, and, in particular, nothing in the said subsub sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) The professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) The carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise].
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O O O O Everyone has the right to freedom of opinion and expression; 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. frontiers. O | 1. Everyone shall have the right to hold opinions without interference. interference. 2. Everyone shall have the right to freedom of expression; expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: necessary: (a) For respect of the rights or reputations of others; others; (b) For the protection of national security or of public order (order public), or of public health or morals. morals.
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Everyone has the right to freedom of peaceful assembly and association. association. O | | The right of peaceful assembly shall be recognized. recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (order public), the protection of public health or morals or the protection of the rights and freedoms of others. others.
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No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, be ineligible for, or discriminated against in respect of, any employment or office under the State.. ((1 State ((1)any requirement as to residence within that State or Union territory prior to such employment or appointment (2) in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State). State). (Article 16 of the Indian Constitution) Article 21 (2): Everyone has the right of equal access to public service in his country. country. (UDHR)
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Article 23 (4) O O O
Everyone has the right to form and to join trade unions for the protection of his interests. interests. O | | Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. interests. (Subject to restrictions). restrictions). O | | The States Parties to the present Covenant undertake to ensure the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests« interests «
To move freely and to reside and settle in any part of the territory concerned ï ï
O | 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. residence. 2. Everyone shall be free to leave any country, including his own.. own 3. The aboveabove-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country
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Article 15: 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, Article 17: 17: Abolition of Untouchablity | , Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. status. 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, nonnonself--governing or under any other limitation of self sovereignty.. sovereignty
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O 1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. status.
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Article 2 (2) The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other. other.
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It simply means that you can not make the criminal laws with retrospective effect that is to say that an accused person is to be prosecuted and punished according to the law already in force at the time of the commission of the offence.. You simply can not make a criminal law and prosecute a person offence who earlier committed some thing which can not be called as an offence at that very point of time. time. Further that person is not subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. offence. Article 20 (1) of the Indian Constitution says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. offence. Article 11 (2) (UDHR) (UDHR):: 2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed committed.. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed committed..
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O " 1) (ICCPR) (ICCPR):: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed committed.. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed committed.. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. thereby.
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Article 21 of the Indian Constitution deals with protection of life and personal liberty. liberty. It says that no person shall be deprived of his life or personal liberty except according to procedure established by law law.. Article 3 (UDHR): (UDHR): Everyone has the right to life, liberty and security of person. person. Article 6 (1) (ICCPR): (ICCPR): Every human being has the inherent right to life. life. This right shall be protected by law. law. No one shall be arbitrarily deprived of his life. life. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court« court«
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Ä Ä Ä O AIR 1950 SC 27 27:: the Supreme Court had given a literal and narrow interpretation to article 21 and refused to infuse the procedure with the principles of natural justice. justice. Three decades later, this view was overruled and it was held that the procedure contemplated under article 21 must answer the test of reasonableness. reasonableness. O Ä | | ,, (1978 1978)) 1 SCC 248 248:: Such a procedure should be in conformity with the principles of natural justice. justice. This is an example of the expansive interpretation of the fundamental right. right. O Ä AIR 1986 SC 180 180:: it was held that the sweep of the right to life conferred by article 21 is wide and farfar-reaching. reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law law.. That is but one aspect of the right to life. life. An equally important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. abrogation. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. life. Ä O O ,, [1967 1967]]3 SCR 525 525:: The expression ³personal liberty´ in article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under article 19 of the Constitution. Constitution. The said expression includes the right to go abroad and no person can be deprived of this right except according to the procedure prescribed by law O Ä O ,, (1980 1980)) 3 SCC 526 526:: Unnecessary handcuffing of underundertrial prisoners would be against article 21 OO O Ä | AIR 1986 SC 1773 1773:: the Supreme Court deprecated detention of children in jails.. jails
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Ä O (1981) 1 SCC 420: the Supreme Court held that the right to privacy is implicit in article 21. It has been held that surveillance, if intrusive, so seriously encroaches on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by article 21 and the freedom of movement guaranteed by article 19(1) (d). Surveillance must be to prevent crime. The right to privacy in terms of article 21 has been discussed in various other cases.
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Ä# $ Ä #%$(2003) 1 SCC 500: the Supreme Court held that disclosure by the hospital or the doctor concerned to the persons related to the girl who intended to marry, of information that her fiancée had been suffering from HIV (+) did not involve violation of article 21 in the context of his right to privacy. Right to privacy is not absolute.
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ÄO ÄO Ä | (2001) 8 SCC 765: the Supreme Court after considering the harmful effects that smoking has on nonnon-smokers, gave directions to ban smoking in public places, namely, (1) auditoriums, (2) hospital buildings, (3) health institutions, (4) educational institutions, (5) libraries, (6) court buildings, (7) public offices, and (8) public conveyances, including railways. The language used gives the impression that the list of places is exhaustive. Airports, for example, are not included, although they are impliedly included
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Ä | (1984) 3 SCC 161 , the Supreme Court held that the writ petition under article 32 by way of public interest litigation by a publicpublic-spirited organization on behalf of persons belonging to socially and economically weaker sections violation of their human rights on being forced to serve as bonded labourers, labourers, was maintainable. According to the Court, a public interest litigation is not in the nature of an adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. Certain directions were given by the Court to the governments and other authorities with a view to improve the life conditions of the poor workers of the stone quarries and ensure social justice to them so that they may be able to breathe the fresh air of social and economic
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OO O Ä O (1982 1982)) 2 SCC 583 583,, the Supreme Court was considering the cases of mentally sick prisoners languishing in jail for nearly two or three decades. decades. Some of them were acquitted being of unsound mind mind.. Some underunder-trial prisoners of unsound mind regained sanity long before, but no steps were taken to commence proceedings against them. them. In view of the inordinately long incarceration already suffered by them without justification, the Supreme Court ordered all of them to be released forthwith by providing necessary funds for meeting expenses of their journey to their respective native places as also for maintenance for a period of one week. week. The above case was filed by way of public interest litigation by the Free Legal Aid Committee, Bihar, by addressing a letter to a Judge of the Supreme Court, drawing the Court¶s attention to unjustified and illegal detention of certain prisoners in the Central Jail, Hazaribagh,, for almost two or three decades. Hazaribagh decades. Treating this letter as a writ petition, the Supreme Court issued notice to the State of Bihar for the purpose of ascertaining facts and after giving opportunity to the State to file the counter affidavit, the Supreme Court held that if the poor are allowed to languish in jails without the slightest justification, the rule of law would become meaningless for the rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of the status quo which protects and preserves their dominance and permits them to exploit large sections of the community but it exists also for the poor and the downdown-trodden, the ignorant and the illiterate who constitute the large bulk of humanity in this country. country. The Supreme Court thus held that it is the solemn duty of the Court to protect and uphold the basic human rights of the weaker sections of the society. society.
Trafficking in human beings ï
O | Prohibition of traffic in human beings and forced labour. labour.
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No one shall be held in slavery or servitude; servitude; slavery and the slave trade shall be prohibited in all their forms.. O forms ÄÄ
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O | | No one shall be held in slavery; slavery; slavery and the slaveslave-trade in all their forms shall be prohibited.. prohibited
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25.. Freedom of conscience and free profession, practice and propagation of 25
religion. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any lawlaw- (a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; practice; (b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Hindus. ï
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26. 26. Freedom to manage religious affairs. affairs. Subject to public order, morality and health, every religious denomination or any section thereof shall have the rightright-(a) To establish and maintain institutions for religious and charitable purposes; purposes; (b) To manage its own affairs in matters of religion; religion; (c) To own and acquire movable and immovable property; property; and (d) To administer such property in accordance with law. law.
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O Ä person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. denomination. ÄÄ OO OO O
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O ÄÄ Everyone has the right to freedom of thought, conscience and religion; 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. observance.
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| O O && O O O 1. Everyone shall have the right to freedom of thought, conscience and religion. religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions convictions..
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