Human Rights Law ( LLB -407)

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
Semester: BALLB & BBALLB VII
Name of the Subject:
HUMAN RIGHTS LAW-407
FACULTY NAME: MS.ANNAPURNA
CHAKRABORTY TIWARI (ASSISTANT
PROFESSOR)

NATURE OF HUMAR RIGHTS
Human rights are a special sort of inalienable moral entitlement. They attach to all persons
equally, by virtue of their humanity, irrespective of race, nationality, or membership of any
particular social group. Human rights belong to an individual as a consequence of being
human. The term came into wide use after World War II, replacing the earlier phrase "natural
rights," which had been associated with the Greco-Roman concept of natural law since the
end of the Middle Ages. As understood today, human rights refer to a wide variety of values
and capabilities reflecting the diversity of human circumstances and history. They are
conceived of as universal Universality of human rights is controutrsial,applying to all human
beings everywhere, and as fundamental, referring to essential or basic human needs.
The concept of human rights is based on the belief that every human being is entitled to enjoy
her/his rights without discrimination. Human rights differ from other rights in two respects.

ORIGIN AND EVOLUTION
• While belief in the sanctity of human life has ancient precedents in many religions of the
world, the foundations of modern human rights began during the era of renaissance humanism
in the early modern period. The European wars of religion and the civil wars of seventeenth-
century Kingdom of England gave rise to the philosophy of liberalism and belief in natural
rights became a central concern of European intellectual culture during the eighteenth-
century Age of Enlightenment. These ideas lay at the core of the American and French
Revolutions which occurred toward the end of that century. Democratic evolution through the
nineteenth century paved the way for the advent of universal suffrage in the twentieth century.
Two world wars led to the creation of the Universal Declaration of Human Rights.
• The post-war era saw movements arising from specific groups experiencing a shortfall in their
rights, such as feminism and the civil rights of African Americans. The human rights
movements of members of the Soviet bloc emerged in the 1970s along with workers' rights
movements in the West.

DEVLOPMENT OF HUMAN RIGHTS REGIME
• The “international regime” concept is one of the most important ones in the IR field. It allows
us to describe this key element of the international relations in the world today with greater
precision. According to the already classical “consensus” definition offered by Stephen
Krasner, an international regime is a type of international institution formed by a set of
principles, norms, rules and decision-making procedures adopted and established by states to
regulate or guide their interactions in a particular thematic area.
• The international human rights regime (or regimes, as we will see shortly) is founded on the
principles of dignity, the equal worth of and equal rights for “all members of the human
family”, without distinction of any kind, such as “race, colour, sex, language or religion”, as
well as the idea that human rights are inalienable, universal, interdependent and indivisible in
nature.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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State has authority to violate it. A prisoner does not cease to be a human being even when
lodged in jail; he continues to enjoy all his fundamental rights including the right to life.
Right to speedy trial: The Supreme Court held that right to speedy trial is a part of
the fundamental right envisaged under Article 21 of the Constitution. Delay in disposal of
cases is denial of justice, so the court is expected to adopt necessary steps for expeditious trial
and quick disposal of cases.
• Right to speedy trial: The Supreme Court held that right to speedy trial is a part of the
fundamental right envisaged under Article 21 of the Constitution. Delay in disposal of
cases is denial of justice, so the court is expected to adopt necessary steps for expeditious
trial and quick disposal of cases. The Hon’ble Supreme Court has laid down detailed
guidelines for speedy trial of an accused in a criminal case but it declined to fix any time
limit for trial of offences. The burden lies on the prosecution to justify and explain the

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delay. The court held that the right to speedy trial flowing from Article 21, is available to
accused at all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision
and re-trial. The court comes to conclusion in the interest of natural justice that when the
right to speedy trial of an accused has been infringed the charges of the conviction shall be
quashed.

WOMEN AND CHILDREN
Women and girls have the same fundamental human rights as men and boys have. These
rights are set out in the Universal Declaration of Human Rights, and more explicitly referred
to in the Convention on the Elimination of Discrimination Against
Women (CEDAW) and the Beijing Platform for Action.
CEDAW, is the principal international instrument on the rights of women. The Convention’s
focus is on eliminating all forms of discrimination against women so that substantive equality,
which requires equality in practice and the elimination of structural forms of inequality, can
be achieved. The CEDAW describes the three obligations that are central to state parties’
efforts to eliminate discrimination against women as:
To ensure that there is no direct or indirect discrimination in their laws and that
women are protected against discrimination – whether committed by public authorities, the
judiciary, organisations, enterprises or private individuals – in the public as well as the.

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private spheres, by competent tribunals as well as by sanctions and other remedies.
To improve the de facto position of women through concrete and effective policies
and programmes.
To address prevailing gender relations and the persistence of gender-based stereotypes that
affect women, not only through individual acts by individuals but also in the law, and legal
and societal structures and institutions.
Children’s rights are commonly viewed as falling into three categories:
Provision rights: include the right to an adequate standard of living, the right to free
education, the right to adequate health resources and the right to legal and social services.
Protection rights: include protection from abuse and neglect, protection from bullying,
protection from discrimination, and safety within the justice system.

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Participation rights: include the right to freedom of expression and the right to participate in
public life.
Children’s rights are enshrined in the United Nations Convention on the Rights of the Child
(UNCROC). This is one of the key international human rights treaties and is the most widely
accepted of the human rights instruments.

INDIGENOUS PEOPLE
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was
adopted by the General Assembly on Thursday, 13 September 2007, by a majority of
144 states in favour, 4 votes against (Australia, Canada, New Zealand and the United
States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia,
Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine). The work towards
this declaration can be seen as far as in 1923 and 1925 by the works of Haudenosaunee
Chief Deskaheh and Māori T.W. Ratana who attempted to bring issues of Canada and
New Zealand failure to uphold treaties to the League of Nations [precursor to the United
Nations].
• Right of self-determination of indigenous individuals and peoples.
• Rights of indigenous individuals and people to protect their culture through practices,
languages, education, media, and religion.

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• Asserts the indigenous peoples’ right to own type of governance and to economic
development
• Health Rights
• Protection of subgroups ex. elderly, women, and children.
• Land rights from ownership (including reparation, or return of land) to environmental
issues

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

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

SENIOR CITIZENS
The International Bill of Rights As mentioned earlier, human rights are universal. They
apply to all human beings everywhere, regardless of their sex, age, religious affiliation,
disability, sexual orientation and other distinctions. Thus, the human rights of all people,
including older persons are tacitly protected in the Bill of Rights. Although it is technically
a declaration, the UDHR (part of the Bill of Rights) is generally considered customary law,
and thus legally binding. Of particular significance to old age is Article 25(1) of the UDHR
that states that everyone has the right to security and a ‘standard of living adequate for the
health and well-being of himself and his family’. The two Conventions, the ICESCR and
the ICCPR, offer generic protection of cultural, economic, social, civil and political rights.
For older persons, important specific rights in the ICESCR are the work- related rights
(Articles 6–7) and the rights to social security (Article 9), to an adequate standard of living
(Article 11), to education (Article 13) and to the highest attainable standard of physical and

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mental health (Article 12). The ICESCR itself does not contain any direct references to older
persons. In 1995, the Committee on Economic, Social and Cultural Rights (CESCR) released
General Comment No. 6 on ‘the economic, social and cultural rights of older persons’. The
comment provides a legal interpretation of how the ICESCR ought to apply to older persons.
It explains that the omission of ‘age’ specifically as an illegal ground of discrimination was
not intentional, but occurred because when the ICESCR and ICCPR were adopted, ‘the
problem of demographic ageing was not as evident or as pressing as it is now’. In the same
committee’s 2009 General Comment No. 20, ‘Non-discrimination in economic, social and
cultural rights’, paragraph 29 holds that ‘Age is a prohibited ground of discrimination in
several contexts’. The CESCR emphasises the need to address discrimination against older
persons in finding work, in professional training, and against those living in poverty with
unequal access to pensions because of their place of residency. In the ICCPR, ‘participation
rights’ of special concern for older persons are the commitment of states to ensure freedom of

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

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

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

THANK YOU

Human Rights Law ( LLB -407)

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