Human Rights

What? This is universal, and fundamental rights inherent to all individuals, regardless of nationality, sex, religion, or status, focused on protecting human dignity. They include rights to life, liberty, freedom from torture, and equality.
Features of Human Rights
1. Universal
2. Inalienable:cannot be taken away
3. Indivisible and Interdependent: The improvement or violation of one right affects others
4. Fundamental: They are essential for human dignity
5. Non-discriminatory: Guaranteed regardless of status.
Are Human Rights Legal Rights?
- Yes, human rights are legally protected through both international and domestic laws.
- International Law: Instruments like the Universal Declaration of Human Rights (UDHR) and international covenants (ICCPR and ICESCR) codify these rights
- Domestic Law: In many countries, human rights are enshrined in national constitutions as "fundamental rights" and are justiciable, meaning they can be enforced by courts

Object of Human Rights Law

- Protection of Human Dignity
- Promoting Universal Standards
- Ensuring Accountability
- Limiting State Power

Kinds of Human rights

1. Civil and Political Rights (1st Generation): Rright to life, freedom of speech, privacy, fair trial, freedom of religion, and freedom from torture.
2. Economic, Social, and Cultural Rights (2nd Generation): Right to work, education, healthcare, and an adequate standard of living.
3. Collective/Solidarity Rights (3rd Generation): Rights to development, a healthy environment, and self-determination

Theories relating to basis of human rights

1. Natural Rights Theory (Locke, Hobbes): rights are inherent, universal, and inalienable
2. Legal Rights Theory (Austin, Bentham):rights are granted by the state and exist only within a legal system
3. Social Welfare Theory (Bentham, Mill): Rights are seen as instrumental to achieving the best social welfare.
4. Historical Theory (Burke): human rights are the product of slow development over time
5. Human Dignity Theory (Kant): Rights exist to protect this unique dignity.
6. Marxist Theory (Karl Marx):rights can only exist in a classless society, free from economic exploitation.
7. Social Contract Theory (Locke, Rousseau): human rights are part of an implicit contract where individuals agree to follow laws

History of evolution of concept of human rights

Ancient and Pre-Modern Foundations
- Code of Hammurabi (c. 1800 B.C.): One of the earliest written laws, setting standards for property and justice, though with disparities between social classes.
- Cyrus Cylinder (539 B.C.): Following his conquest of Babylon, Cyrus the Great freed slaves, declared religious freedom, and established racial equality, considered the first human rights charter.
- Natural Law (Greece/Rome): Philosophers like Plato and Aristotle believed in a universal, unwritten law of nature that provided inherent dignity to individuals.
Medieval and Early Modern Development
- Magna Carta (1215): English King John was forced to recognize liberties, establishing that the monarch was subject to the rule of law and protecting against arbitrary detention.
- Petition of Right (1628): Strengthened the rights of citizens against the state in England.
Enlightenment Era (17th–18th Century): Thinkers like John Locke argued for inherent rights to life, liberty, and property, shifting focus to the individual.
Revolutionary Era and Legal Codification
- U.S. Declaration of Independence (1776): Proclaimed that all men are created equal and endowed with unalienable rights, including life, liberty, and the pursuit of happiness.
- Declaration of the Rights of Man (France, 1789): Proclaimed that "men are born and remain free and equal in rights
20th Century and Modern International Law
- Post-WWII/Holocaust: The atrocities of World War II catalyzed a global demand for enforced human rights.
- United Nations (1945): Founded to promote human rights and fundamental freedoms.
- UDHR (1948): The General Assembly adopted the Universal Declaration of Human Rights, establishing 30 fundamental rights for all. - International Covenants (1966/1976): The UDHR was strengthened by the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights
Modern Evolution
- The modern human rights movement has expanded from focusing on anti-torture and political rights to encompassing women's rights, LGBT rights, and rights for disabled persons

International human rights law

This derives from treaties, custom, and general principles, compelling states to respect, protect, and fulfill fundamental rights. largely codified through UN bodies and declarations

Sources of International Human Rights Law

International Treaties/Conventions, Customary International Law, General Principles of Law, Soft Law Instruments: Declarations, guidelines, and resolutions, Judicial Decisions and Teachings

Universal Declaration of Human Rights (UDHR)

Adopted by the UN General Assembly on December 10, 1948 in Paris
Has 30 fundamental, inalienable rights that belong to all people, regardless of race, gender, or status
The Rights Declared in 1948
- Fundamental Principles: equal in dignity and rights (Article 1) , rights without discrimination (Article 2)
- Civil and Political Rights: Right to life, liberty, and security of person (Article 3), Prohibition of torture and degrading treatment (Article 5), Right to recognition as a person before the law (Article 6)
- Economic, Social, and Cultural Rights

Rights and Articles

Article 22: Social security right.
Article 23: Work, free choice of employment, fair wages, and protection against unemployment rights.
Article 24: Rest and leisure, including reasonable working hours and periodic holidays rights.
Article 25: Standard of living (including food, clothing, housing, medical care, and necessary social services), and security in case of sickness, disability, or old age.
Article 26: Education (free and compulsory elementary education).
Article 27: Participate freely in the cultural life of the community and enjoy the arts and science

International Covenant(Aggrement) on Civil and Political Rights (ICCPR)

Adopted by the UN General Assembly on December 16, 1966, and in force since 1976. It compels signatory nations to uphold rights like life, liberty, fair trial, and freedom of expression
Key Rights Proclaimed by the UN General Assembly
- Physical Integrity & Liberty
- Due Process & Legal Rights
- Fundamental Freedoms
- Political Participation
- Equality & Protection

International covenant on economic social and cultural rights

1966 United Nations treaty, states to protect and promote essential human rights, including work, education, health, and an adequate standard of living.The ICESCR comprises 31 articles organized into five parts:
Fundamental Rights(Article 1), Labour and Work(Article 6), Standard of Living(Article 11), Health and Education(Article 12)

Vienna Declaration and Programme of Action (VDPA) 1993

All human rights—civil, political, economic, social, and cultural—are universal, indivisible, interdependent, and interrelated
Key points of the Vienna Declaration include:
1. Universality and Indivisibility
2. Right to Development:
3. Protection of Vulnerable Groups: The VDPA explicitly focused on the rights of women, children, indigenous people,
4. Democracy and Rule of Law: It emphasized that democracy, development, and respect for human rights
5. Role of NGOs: Recognized the crucial role of non-governmental organizations in promoting and protecting human right

UN Charter (1945)

promotes fundamental human rights, dignity, and equality without distinction to race, sex, language, or religion. Rights include(Civil & Political Rights, Economic, Social & Cultural Rights, Non-Discrimination)

Are Provisions Binding on UN Members?

Yes, the Charter is a legally binding treaty. All members must respect the principles of the Charter, which include promoting human rights.

Measures Taken by the UN to Protect Human Rights

UN Human Rights Council, UN High Commissioner for Human Rights, Treaty Bodies, Special Procedures

Protection of Human Rights Act, 1993

Provides for the constitution of
1. National Human Rights Commission (NHRC)
2. State Human Rights Commissions (SHRC)
3. Human Rights Courts

Extent: Whole of India except J&K

Objectives of the Act
1. Establish independent bodies like the NHRC and SHRCs for examining, investigating, and monitoring human rights violations.
2. Set up Human Rights Courts in districts for the speedy trial of offences related to human rights violations.
3. To promote human rights education, awareness, and research.

Procedure for Inquiry in General Complaints

Filing: Complaints can be filed in Hindi, English, or any 8th Schedule language. No fee is required, and they can be sent via email or post.
Inquiry Power (Section 13): The Commission has the powers of a civil court, including summoning witnesses, examining documents, and receiving evidence on affidavits.
Investigation (Section 14): The Commission can utilize the services of central or state government investigation agencies with their concurrence.
Procedure (Section 18): After inquiry, the commission may: Recommend the initiation of prosecution proceedings.
Action Taken Report: The concerned government must provide a report on actions taken within one month

Procedure for Violations by Armed Forces (Section 19)

Report Seeking: The Commission, upon receiving a complaint, cannot directly initiate a full inquiry in the same manner as general cases. Instead, it must seek a report from the Central Government.
Action Upon Report: Based on the report, the Commission can either: Decide not to proceed with the complaint if the explanation is satisfactory. Make recommendations to the Central Government.
The Central Government must inform the Commission of the action taken on recommendations within three months (or further time allowed).
Publication: The NHRC will publish its report, recommendations, and the action taken by the Government, providing a copy to the petitioner

NHRC(National Human Rights Commission)

Established on October 12, 1993, under the Protection of Human Rights Act (PHRA) for protecting and promoting human rights.

Constitution of NHRC

A chairperson and 5 full-time members, along with 7 deemed members
Chairperson: either retired CJ of India or retired Judge of SC
Members: 1 retired or serving Judge of SC, 3 social workers, 1 woman
Deemed Members: Chairpersons of the National Commissions for SCs, STs, Backward Classes, Minorities, Women, Protection of Child Rights, and the Chief Commissioner for Persons with Disabilities.
Appointment: Chairperson and members are appointed by the President on the recommendation of a high-level committee headed by the Prime Minister.

Powers of NHRC

1. investigate human rights violations
2. summon witnesses
3. Examine evidences
4. visit prisons, and recommend compensation or prosecution

Limitations of NRHC

Non enforcable: The NHRC's findings are not enforceable, meaning the government is not obligated to follow its recommendations.
No Direct Penalty Power: It cannot directly punish violators or award compensation itself, only recommend it.
RArmed forces cases: Powers are limited there just to seek reports from the Central Government.
Case cannot strech more than 1 year: The Commission generally cannot investigate cases more than one year old

SHRC(State Human Rights Commission)

Created under the Protection of Human Rights Act, 1993

Constitution of the SHRC

Established by state governments. 1 chairperson, Secretary, 2 members
Chairperson: Retired CJ of state HC or retired judge of HC
Members: 1 retired judge, 1 social worker
Secretary: Acts as the chief executive officer.

Functions of the SHRC

Investigating Violations, jail visits, Reviewing Safeguards, Research & Awareness, Intervention in Courts

Powers of SHRC

summoning witnesses, receiving evidence on affidavits, and requisitioning public records
regulate its own procedure
cannot investigate matters older than one year

Minority rights in India

constitutional and legal safeguards for religious and linguistic minorities, ensuring equality, non-discrimination, and protection of their distinct identity, culture, and educational interests.
Grounded in Articles 25-30, these rights promote secularism by enabling communities to preserve their heritage and manage institutions.

Key Constitutional Rights for Minorities

Cultural and Educational Rights (Article 29 & 30)
Freedom of Religion (Articles 25-28)
Equality and Non-discrimination (Articles 14-16)
Linguistic Safeguards: Article 350A
Cases
1. State of Madras vs. Smt. Champakam Dorairajan (1951): The Madras government’s "Communal Government Order (G.O.)" (from 1927) reserved seats in state medical and engineering colleges based on caste/community. Champakam Dorairajan(a Brahmin student) was denied admission despite having higher marks than non-Brahmin candidates who were admitted under the quota. She challenged this as a violation of her fundamental right to equality.
2. Ahmedabad St. Xavier's College Society v. State of Gujarat (1974): The Society of Jesus challenged the Gujarat University Act of 1949 (amended 1972), which compelled mandatory affiliation and interfered with the administration's right to manage the college. Verdict: Regulations cannot infringe upon the core management rights of minority institutions.

Fundamental human rights provided by Constitution

Part 3(Fundamental Rights, Articles 12-35) and guides policy via Part 4(Directive Principles)
PIL(Public intrest litigation), Cases where the court allowed PIL

European Convention on Human Rights (ECHR)

signed on November 4, 1950, is a foundational treaty protecting fundamental rights and freedoms, including the right to life, fair trial, privacy, freedom of speech, and prohibition of torture.
It established the European Court of Human Rights, ensuring individual complaints against states

Protocols in ECHR

There are 16 protocols.
These protocols protect additional rights, such as property rights (Protocol 1) and abolition of the death penalty (Protocols 6 & 13), or modify the Court’s procedural mechanisms (Protocols 11, 14, 15, 16).
Protocols 1, 4, 6, 7, 12, and 13 add new rights or freedoms.
Protocols 11, 14, 15, and 16 focus on modifying the Court's machinery to improve efficiency.
latest, Protocol No. 16, allows for advisory opinions

Relationship between Universal Declaration of Human Rights (UDHR, 1948) and the two 1966 Covenants(ICCPR and ICESCR)

ICCPR and ICESCR—together form the International Bill of Human Rights
The UDHR acts as the foundational, moral, and influential standard, while the Covenants provide specific, legally binding, and actionable treaty obligations for ratifying nations
UDHR (1948): Set out basic principles as a "common standard of achievement". It is technically non-binding, though much of it is considered customary international law.
ICCPR (International Covenant on Civil and Political Rights): Focuses on rights such as the right to life, liberty, and freedom of expression.
ICESCR (International Covenant on Economic, Social and Cultural Rights): Focuses on rights such as work, education, and health

American Convention on Human Rights 1969

Binding international treaty adopted by the Organization of American States (OAS) to protect civil and political rights in the Americas.
It created the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights to monitor compliance, emphasizing the rights to life
Rights: Right to life, Humane Treatment, Liberty and Security, free trial

Difference Between European and American Conventions

1. The American Convention places a stronger emphasis on social, economic, and cultural rights, often linking them with civil and political rights, whereas the ECHR focuses primarily on civil and political rights.
2.The American Convention explicitly recognizes that "individual duties" exist in relation to family, community, and humanity, which is not a major focus of the ECHR.
3. American Convention explicitly protects the right to life "in general, from the moment of conception," which differs from the legal standards applied in Europe.
4. European system is generally considered to have a more developed, stronger court system that acts as a "constitutional instrument" for its members

National commission for women

National Commission for Women (NCW) was formed in 1992 for ensure equal livelihood, and protect women against violence and discrimination

Reasons for Formation of the NCW Act, 1990

Need for a Specialized Body: To establish a dedicated statutory apex body to address women's issues, as previous mechanisms were insufficient.
Protection Against Injustices: To address rising crimes, violence, and exploitation against women.
Review Constitutional Safeguards: To review existing laws and constitutional protections, recommending amendments to tackle inadequacies.
Policy Formulation: To advise the government on all policy matters affecting women's welfare and development

Functions of the Commission (Section 10)

Investigation: For cases of woman-related rights violations and non-implementation of protective laws.
Review Laws: Reviews constitution and legal safeguards to recommend remedial legislative measures.
Grievance Redressal: Takes up issues and complaints of women with authorities.
Research & Studies: Conducts studies on social and economic factors causing gender disparities.
Evaluation: Evaluates the progress of women’s development under the Union and State governments

Powers of Commission

Civil Court Authority: The NCW has the powers of a civil court, including summoning witnesses, receiving evidence on affidavits, and requisitioning public records.
Suo Moto Notice: It can take up cases voluntarily or take on-the-spot inquiries into serious violations.
Advisory Function: It provides recommendations for changes to laws and policy to the Union and State Governments.

Collective Rights

entitlements held by a community, group, or people rather than individuals, aimed at protecting shared interests like culture, language, land, or identity, often for marginalized communities or Indigenous peoples

Kinds of Collective Rights

Cultural and Linguistic Rights: Right to preserve, use, and teach one's language and culture.
Land and Territorial Rights: Customary or legal rights of indigenous communities to own, manage, and utilize ancestral land and natural resources.
Self-Determination and Self-Government: Rights of groups to determine their own political status and govern their own affairs.
Intellectual Property and Knowledge: Rights to protect traditional knowledge, genetic resources, and artistic heritage.
Right to Development: The right of a community to thrive and manage its own development.

Necessity of State Cooperation

Yes, states need to cooperate with each other because many issues affecting collective rights are transnational. Cooperation ensures:
Environmental Protection: Managing biodiversity, water, and air, which often span borders.
Protection of Refugees/Migrants: Managing the movement of people.
Conflict Prevention: Managing issues related to minority rights that could lead to regional instability.
Upholding International Norms: Implementing international treaties such as the UN Declaration on the Rights of Indigenous Peoples, as seen on UNSR James Anaya

International conferences on human rights

high-level diplomatic meetings convened by international organizations—most notably the United Nations—to establish, evaluate, and advance global standards for human rights protection

Meanings and Objectives of International Conferences on Human Rights

Review and Evaluation
Setting New Standards
Elimination of Discrimination
Program Formulation
Global Solidarity

1968 International Conference on Human Rights in Tehran

commemorated the 20th anniversary of the Universal Declaration of Human Rights (UDHR) and produced the Proclamation of Tehran. Points
1. Decolonization and Self-Determination: colonialism constitutes a "total denial" of human rights and called for urgent measures to implement the Declaration on the Granting of Independence to Colonial Countries and Peoples
2. Women's Rights:
3. Family and Child Protection: The protection of the family and child is a top priority
4. economic justice
5. Science and Technology:
6. Disarmament: It was argued that disarmament would release resources that should be redirected toward the promotion of human rights

Judicial activism

SC & HC go beyond traditional adjudication to create new rules, enforce fundamental rights, and address social injustices when the legislature or executive fails to act.
Cases:
1. Lakshmi Kant Pandey vs Union of India: Lawyer Laxmi Kant Pandey filed a petition following reports of exploitation, trafficking, and improper, long-term care of Indian children adopted by foreign nationals. The Court, recognizing the absence of a comprehensive law, used the Guardians and Wards Act, 1890 to establish guidelines. Verdict: No direct adoption by foreign parents; all applications must pass through licensed agencies. Emphasis on finding adoptive parents within India first, treating foreign adoption as a last resort. Strict inspection of prospective parents and the adoption process to prevent exploitation
Other Cases

Main Objectives of Judicial Activism

Protecting Fundamental Rights
Filling Legislative Vacuum
Ensuring Executive Accountability
Promoting Social Justice

Importance of PIL to Judicial Activism

Acts as the vehicle or tool for judicial activism
1. Relaxation of Locus Standi: Traditional law requires the aggrieved party to approach the court. PIL allows any public-spirited person or organization to approach the court on behalf of others who cannot do so due to poverty or social disadvantage.
2. Accessibility to Justice: PIL has democratized the judicial system, making it reachable to the masses and transforming it into a "strategic arm of the legal aid movement".
3. Scope: PILs facilitate judicial intervention in various issues, including bonded labor, child care, and environmental protection

United nations commission on human rights (UNCHR)

Foundational UN body dedicated to promoting and protecting human rights globally
Key Achievements and Mechanisms:
Setting Standards, Special Procedures, Monitoring Situations

Office of the United Nations High Commissioner for Human Rights (OHCHR)

Established on December 20, 1993, by General Assembly Resolution 48/141
High Commissioner acts as the principal UN human rights official, mandated to promote, protect, and defend all human rights—civil, political, economic, social, and cultural—globally
High Commissioner is appointed by the UN Secretary-General and approved by the General Assembly.
Holds the rank of Under-Secretary-General for a four-year, renewable term.

Specific Responsibilities (Resolution 48/141)

Promotion and Protection, International Cooperation
Advisory Services: Providing technical assistance and expertise to governments for the implementation of human rights standards.
Preventive Action, Dialogue and Diplomacy, Support to Mechanisms

Universal Periodic Review (UPR)

Reviews the human rights records of all 193 UN Member States every 4.5 to 5 years
Peer-review process where countries share progress made on human rights, receive recommendations, and discuss challenges to improve human rights situations globally

Features of the UPR

Universal Coverage: Applies equally to all 193 Member States.
Peer-Driven: Member States review each other, recommending actions to improve human rights.
Three Main Reports: The review is based on national reports, UN compilation reports, and stakeholder inputs (NGOs, National Human Rights Institutions).
Outcome: The reviewed state indicates which recommendations it accepts or notes