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Nagaraj Head, Department of Communication and Journalism, Mangalore University John Thomas Ex-Editor, Vijay Times and Former Vice-Dean IIJNM, Bangalore Adam Clapham Author and Former Senior Producer, BBC Gopakumar A.V. Sr. Lecturer (Journalism and Mass Communication) SMU DDE, Manipal Special Invitee Prof. Kushal Kumar Dean, MIME, Bangalore Human Rights and Media Contents Unit 1 Introduction To Human Rights 151 Unit 2 Principles and Theories of Human Rights 53100 Unit 3 Organizations Related to Human Rights 101147 Unit 4 State of Human Rights in India 149198 Unit 5 Indian Constitution and Human Rights 199258 Unit 6 Child and Human Rights 259296 Unit 7 Women and Human Rights 297358 SUBJECT INTRODUCTION Human Rights and Media The concept of human rights has arisen from that of natural rights of all human. The belief that every person by virtue of his humanity is entitled to certain natural rights is a recurring theme throughout the history of mankind. It can be traced back thousands of years from the Vedas to the Hammurabai Code to the Magna Carta, the French Declaration of Human Rights, and the American Bill of Rights. Time and again history shows that the existence of human rights has been recognized and accepted as a necessary component for the well being of civilization at any given time. The World conference of Human Rights held in 1993 marks a crucial stage in United Nations policy in the field of human rights. The Vienna Declaration encouraged the United Nations to pursue and strengthen its activities to make respect for human rights a priority objective on the same level as development and democracy and to work for the concurrent achievements of these objectives. However, despite such developments, the sad fact remains that many people still remain unaware of their rights. According to the Amnesty International, the largest human rights organization in the world, only 8 per cent of adults and 4 per cent of youth in the Unites States are aware of foundation stone for human rights. It is here that the media can play a monumental role in creating larger awareness of human rights. The role of media in protection of human rights cannot be ignored or minimized, because it is a communicator of the public and sets its social, political economic and cultural agenda. Media can play a major role in protecting and promoting human rights in the world. It can make people aware of the need to promote certain values in the cause of human rights which are of eternal value to the mankind. Peace, non- violence, disarmament, maintenance and promotion of ecological balances and unpolluted environment and ensuring human rights to all irrespective of caste, colour and creed should be the minimum common agenda for the media. The media can perform this role in different ways. It can make people aware of their rights, expose its violations and focus attention on people and areas in need of the protection of human rights and pursue their case till they achieve them. Human Rights and Media Subject Introduction Sikkim Manipal University Page No. (vi) The seven units in this book discuss the following topics: Unit 1 Introduction to Human Rights: Gives a comprehensive overview of the origin, sources and perspective of human rights Unit 2 Principles and Theories of Human Rights: States the evolution of the concept of human rights and its various theories, approaches and principles Unit 3 Organizations Related to Human Rights: Explains the functioning of the UN, its specialized agencies, Security Council, ECOSOC and UN Commission on Human Rights Unit 4 State of Human Rights in India: Defines the genesis of human rights in India and the rights of minorities Unit 5 Indian Constitution and Human Rights: Critically evaluates human rights in the context of Constitution of India, UN Declaration on Human Rights Unit 6 - Child and Human Rights: Discusses the rights of children, female foeticide, sexual exploitation, child labour, child prostitution, illegitimacy and delinquency Unit 7 Women and Human Rights: Explains the various acts of violence faced by women including dowry death, domestic violence and sexual harassment at workplace Objectives of studying the unit After studying this subject, you should be able to: Describe the concept of human rights Discuss the principles and theories of human rights List the organizations devoted to the cause of human rights Assess the situation of human rights in India Define the concept of human rights in context of the Indian constitution Criticize the concept of child rights Elaborate upon the rights of women Unit 1 Introduction To Human Rights Structure 1.1 Introduction Objectives 1.2 Historical Origins of Human Rights 1.3 Sources of Human Rights 1.4 Perspectives on Human Rights and Human Duties 1.5 Nature and Concept of Duties 1.6 UN and UN Charter 1.7 International Bill of Rights 1.8 Individual and Human Rights 1.9 State Responsibility in International Law 1.10 Indian Values and Human Rights 1.11 Emerging Dimensions in Human Rights: Basic Concepts 1.12 Summary 1.13 Glossary 1.14 Terminal Questions 1.15 Answers 1.16 Further Reading In January 2003, Libya was elected to chair the United Nations Human Rights Commission! And why not? Libyan dictator Muammar Brotherly Leader and Guide of the Revolution Gaddafi, with his long history of supporting terrorism and torturing and assassinating political opponents, was certainly an expert on Human Rights!! Source: http://www.anecdotage.com/index.php?aid=15655 1.1 Introduction Human rights are the basic rights and freedom that all people should enjoy irrespective of the country they belong to, their sex, their race or origin, the religion they follow, the language they speak, or any other status. These rights include civil and political rights, that is the right to life, liberty and freedom of expression. These rights also comprise social, cultural and economic rights, including the right to participate in culture, the right to food, and the right to not only work but also get educated. There are treaties and laws, both national and international, that uphold human rights and protect them. Human rights are rights enjoyed by Human Rights and Media Unit 1 Sikkim Manipal University Page No. 2 an individual simply because he or she is human. These rights are regarded as universal, equal and inalienable and are held by all human beings regardless of any distinctions. Respect for the dignity and worth of each person forms the foundation of human rights. Human rights are universal. In other words, they belong to everyone everywhere.They must be applied equally and without discrimination to all people. They are inalienable, which means that human rights of persons cannot be taken away other than in specific conditions as prescribed by law. For example, the right to liberty can be restricted if a person is found guilty of a crime by a court of law. Human rights are indivisible, interrelated and interdependent. It is not enough to respect some human rights and ignore others. As a result of their interrelatedness, the violation of one right will often affect the respect of several other rights. There is no hierarchy between different sets of rights. Therefore, equal importance should be given to all human rights. It should be considered essential by one and all to respect the dignity and worth of every person. All individuals should have an understanding of human rights. This is an important part of an individuals status as a human being and equally important for our collective status as members of the global community of humankind. A thorough understanding of how human rights infuence our daily lives is essential for us to fulfil our responsibilities in accepting the need to balance those rights with the rights of others. In this unit, you will learn about the origin and sources of human rights, the different perspectives on human rights and duties, the nature and concept of duties and emerging dimensions in human rights. You will also read about the role of the UN and UN charter, the international bill of rights and responsibility of state in international law. Objectives After studying this unit, you should be able to: Identify how human values determine human rights Define the concepts of liberty, equality, justice and unity as understood under the term human rights Distinguish between rights and duties, and explain how they are interrelated Explain the UN Charter Discuss how the laws of state responsibility govern when and how states are held responsible for violation of international obligations Evaluate the emerging dimensions in human rights Human Rights and Media Unit 1 Sikkim Manipal University Page No. 3 1.2 Historical Origins of Human Rights A philosophical discussion that went on for over two thousand years within the European societies and their colonial descendants, led to the emergence of the concept of human rights. Ethical values of political organization and behaviour were sought, which would be independent of the contemporary society. People have generally been critical of the view that what is right or good is entirely dependent on the stand that the society or ruling class takes on what is correct at that particular time. This apprehension led to the hunt for long-lasting moral values that would be applicable at all times and at all places. Political philosophers argued this matter back and forth. This led later thinkers to lay the way for contemporary human rights. There were some, however, who were against this view and these thinkers laid their own path. Thus, it can be seen that human rights emerged from natural rights amidst much conflict. It was argued by some people that rights could come only from the law of a particular society and not from any other source, natural or inherent. Classical Greek philosophers propounded the concept of natural right. Though initiated by Aristotle, it was Thomas Aquinas who completely developed it in his Summa Theological. Aquinas notion was the accepted authority for many centuries. In it, he said that goods or behaviours that were naturally right or wrong were due to the will of God. Humans could use their power of reasoning to determine what was naturally right. Hugo Grotius elaborated on this notion in De jure belli et paci (On the Law of War and Peace), putting forth the idea that what is naturally right or wrong cannot change. The Law of Nature is so unalterable, that it cannot be changed even by God himself. Although the power of God is infinite, yet there are some things, to which it does not extend. ...Thus two and two must make four, nor is it possible otherwise; nor, again, can what is really evil not be evil. The origin of moral authority of natural right was considered to be divine and thus, assured. The extent of human political activity was fixed by God. But the religious foundations for this vein of thought resulted in its long-term difficulty. Thomas Hobbes, in 1651, critically viewed the theory of the divine basis of natural right. According to him, God had no hand in his State of Nature.What was more important was that Hobbes switched from using natural right to a natural right. This meant that a list of behaviour that was simply naturally right or wrong, did not exist any more. Hobbes believed that we were entitled to something from nature. In Hobbes view, this was the natural right of self-preservation. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 4 Immanuel Kant reacted to Hobbes at the end of the seventeenth century, and reinforced the theory of natural rights. He believed it was natural for human beings to protect each other from violence that could arise in a state of nature. This led to the formation of a state-structured society. According to the basic rules of society, the members are obliged to treat each other according to universal principles. Kants moral philosophy led to his political doctrine wherein he stated that universal laws had to be imposed and obeyed for the organization of a state. However, these laws were expected to respect the equality, freedom, and autonomy of the citizens. That is how Kant emphasized the necessity of basic rights for civil society: A true system of politics cannot therefore take a single step without first paying tribute to morality. ...The rights of man must be held sacred, however great a sacrifice the ruling power must make. Many years after Hobbes published his Leviathan, the divine basis of natural rights was still studied. At the end of the seventeenth century, John Locke published his Two Treatises on government where he wrote in favour of natural rights. His work indicated what God had intended or given to mankind. Lockes long-term effect on political discourse showed through in the American Declaration of Independence and Frances Declaration of the Rights of Man and the Citizen, passed by the Republican Assembly after the revolution in 1789. The French declaration proclaimed 17 rights as the natural, inalienable and sacred rights of man. The French Declaration of Rights created a stir among political writers in England. Its notion of natural rights was questioned and attacked. Jeremy Bentham argued that it was not possible to have natural rights because rights were created by societal law. In his work Anarchical Fallacies, he criticized each and every clause of the Declaration. Right, the substantive right, is the child of law: from real laws come real rights; but from laws of nature, fancied and invented by poets, rhetoriticians, and dealers in moral and intellectual poisons come imaginary rights, a bastard brood of monsters, gorgons and chimeras dire. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts. Harsh criticism of the French Declarations assertion of natural rights came from Edmund Burke too. His argument was that rights were the benefits that were won by each society. Since the political struggles of England and France had been different through history, they also came to hold different rights. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 5 Soon after the French Declaration, Thomas Paine defended the conception of natural rights and their link with the rights of a particular society in The Rights of Man. This work was published in 1791 and 1792, in two parts. Paine distinguished between natural rights and civil rights, but emphasized an essential link: Natural rights are those which appertain to man in right of his existence. Of this kind are all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others. Civil rights are those which appertain to man in right of being a member of society. Every civil right has for its foundation, some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection. In these words we find, earlier inspiration for human rights from the social contract views of writers such as Jean-Jacques Rousseau, whose argument was that people consent to live with and follow common rules if the society protects them. It can thus be said that the rights that individuals cannot protect on their own are taken care of by the state. Modern theorists follow a notion of natural rights that is not sourced or inspired from a divine ordering. Those who oppose this view build on Burkes and Benthams criticisms and also on views of Rousseau about civil society. Persistent opposition results from the perspective that rights are inexistent irrespective of human endeavour; these can only be created by human action. Rights are viewed as the product of a particular society and its legal system. Karl Marx also opposed rights that checked socialist thinkers from accommodating rights within their theories of society. Marx believed that rights were fabricated by the middle class where the individual was separate from his or her society. Rights were required in capitalist states for ensuring protection from the state. According to Marxs view of society, an individual is a product of society and, therefore, should ideally not be seen in an antagonistic relationship where rights are needed. However, many socialists have come to accept certain conceptions of rights in the late twentieth century. Political philosophy has been several centuries in the making involving innumerable sessions of debates. Many years ago the seeds of the idea of Human Rights were sown in the minds of philosophers of natural rights. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 6 Significantly, the concept occupies a vital place in contemporary apolitical consciousness. However, in spite of the countless discourses thinkers have not been able to provide answers to the following questions Can we assume that rights are products of a particular vision and laws of society? Are these rights sacrosanct and irrefutable? Another moot point is that these theories are rooted in Western political traditions. They are an offshoot of European natural rights. More so, rights that are seen as natural have their background in theory of liberalism of the nineteenth and twentieth centuries. With human rights, the rhetorical framework of the natural rights tradition has become the foundation for the values of Western liberalism. One critique of human rights is that these cannot be universal as they are derivatives of Western thought, and are grounded in a purely European idea that man is separable from society. Are such thoughts on individual rights applicable to collectivist or communitarian societies? Clearly such cultures see the individual as very much an indistinguishable part of society as a whole. Those in the West and some others believe that the individual is a unique entity; however this thought is not shared by all societies. Different social orders have differing views on whether individuals should be given rights that protect them from society and if yes, then how much. Not only is there a disagreement on the basis of this concept itself but also one on the way that human rights have gestated. Some of the human rights that are listed sound like conditions required for democracy. However it may be mentioned that there are several societies that have worked very successfully in spite of not having any form of individual equality or even the right to vote, which is clearly indispensible to the tenets of democracy. A question that recurs in later discussions is whether the human rights advocated today are really civil rights that pertain to a particular liberal and conception of society. We can say that to answer this question we need to examine the objective of human rights. What are we trying to achieve? If human rights is just another name for liberalism, then we cannot debate their authority over other political values. For human rights to be universal they must not be dominated by a certain ideology. They must be grounded on a common universality for there to be any substantial measure of compliance. Human rights are an age-old idea. Generally, it adheres to a notion that human beings are equal in the eyes of the law. Wherever granted, human rights are inherent, individual and automatically exercised. These rights were adopted in 1948 at the UN Universal Declaration of Human Rights. They were codified in Human Rights and Media Unit 1 Sikkim Manipal University Page No. 7 1966, at the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. What do these human rights encompass and what is their reach? According to some, they go back to traditional civil liberties and political freedoms and to some they go beyond and cover social and economic rights. Naturally, human rights are essential for everyone and begin with the idea of an indivisible respect for human dignity. They also are a precursor to guaranteeing basic rights. Global and national communities have made frequent efforts to promote and protect human rights. Every human being has certain rights that he is born with and is guaranteed. These rights are commonly known as human rights. Human right includes civil rights, civil liberties and social, economic and cultural rights. Human rights are validated as morally right. But rights cannot exist independently; they are accompanied by a set of duties. Individuals cannot enjoy rights if they do not carry out their duties. Every individual has a natural right to life, liberty, property and the pursuit of happiness. This notion is central to liberalism and influences our ideas about rights and duties of individuals in the modern state. However, there are many views that co-exist within liberal political thought; such as what is the nature and range of citizens rights and to what extent do rights include duties. 1.2.1 Rights Since the 17th century, human thinking has been veering round to the theory that man has certain essential, basic, natural and inalienable rights or freedoms and it is the function of the State to ensure that human liberty is preserved, human personality developed, and an effective social and democratic life promoted, to recognize these rights and freedoms. The concept of human rights can be traced to the natural law philosophers such as Locke and Rousseau. These natural law philosophers philosophized over such inherent human rights and sought to preserve these rights by propounding the theory of social compact. According to Locke, man is born with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the Law of Nature and he has by nature a power to preserve his property, that is, his life, liberty, and estate, against the injuries and attempts of other men. (Two Treatises of Government, Chapter 7, Section 87-89) The Declaration of the French Revolution in 1789, which may be regarded as a concrete political statement on human rights and which was inspired by the Lockeian philosophy, declared: Human Rights and Media Unit 1 Sikkim Manipal University Page No. 8 The aim of all political association is the conservation of the natural and inalienable rights of man. The concept of human rights protects individuals against the excesses of the State. The concept of human rights represents an attempt to protect the individual from oppression and injustice. In modern times, it is widely accepted that the right to liberty is the very essence of a free society and it must be safeguarded at all times. The idea of guaranteeing certain rights is to ensure that a person may have a minimum guaranteed freedom. According to Austin, liberty is illusory if it is not protected by law and if law protects it, it amounts to a right. The difference between a right and liberty lies only in the emphasis laid on particular elements in the conception. In liberty, prominence is given to the absence of legal restraint and protection is secondary, but in the case of right it is just the other way. Right denotes protection and the absence of restraint. A right may be defined as a moral principle that describes and guarantees an individuals freedom of action in a social context. Interestingly, there is only one fundamental right, which is that a person has a right to his own life. All others are derivates or upshots of this. The right to life implies that individuals have the right to pursue self-sustaining and self-generated action. In other words it means that a person can take all possible actions so as to meet his aspirations in life. This is what is meant by having the right to life, liberty and the pursuit of happiness. By rights we refer to those conditions that a person needs so as to live. This includes having the freedom to live ,to apply his mind, act freely in keeping with his way of thinking, and having the right to hold on to the product of his work. People have to live as rational beings. Anyone or any community or country that tries to gag a mans freedom and rights is anti life. Self-Assessment Questions 1. Fill in the blanks with appropriate words: (a) In The Rights of Man, published in two parts in 1791 and 1792, _______ made a distinction between natural rights and civil rights. (b) _______ propounded the immutability of what is naturally right and wrong. 2. State whether the following are true or false: (a) There is only one fundamental right, that is, a mans right to his own life. The rest are consequences or corollaries of this right. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 9 (b) It is the function of the king to ensure that human liberty is preserved, human personality is developed, and an effective social and democratic life is promoted 1.3 Sources of Human Rights The recognition of human rights has evolved extensively since the creation of the United Nations, which has established a set of rules for all the people across the globe. The variety of sources from where international human rights laws have been derived is as follows: Religion: The term human right as such is not found in most of the worlds religions. Nonetheless, theology serves as the basis of a human rights theory stemming from a law higher than the State and whose source is the Supreme Being. This presupposes an acceptance of revealed doctrine as the source of such rights. Every individual is considered sacred in the religious context. The fact that human beings have been created by a common creator gives rise to the theory of a common humanity; from this rise the universality of these rights. A wide intercultural tradition has been constructed by the common bond of religion that supports various principles of justice and equality that underlie human rights. Natural law: Natural law theory has underpinnings in Sophocles and Aristotles writings. It was first elaborated during the Greek period and later during the Roman period. Natural law, embodied elementary principles of justice which were right, that is, they were in accordance with nature, unalterable and eternal. The natural rights theory evolved from the natural law theory. John Locke, the chief exponent of the natural rights theory, developed his philosophy within the framework of the 17th century humanism and enlightenment. The 18th century saw the birth of absolutism, against which the natural rights theory provided impetus to revolt. The same impetus is also seen in the French Declaration of the Rights of man and in the American Declaration of Independence. It is also evident in the later States which declared their independence against anti- colonial terrorism and also in the principle United Nations human rights documents. The natural rights theory has identified human freedom and equality from which other human rights originate and has thus contributed tremendously to the evolution of human rights internationally. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 10 International treaties: Treaties are the most important sources of international human rights law. At present, there are a number of multilateral human rights treaties in operation, which are legally binding for the countries that have ratified them. The most important amongst them is the United Nations Charter. It is binding on all the countries in the world and establishes at least general obligations to respect and promote human rights. The United Nations has also enacted a number of other multilateral human rights treaties that have created obligations to the contracting parties. European Convention on Human Rights, American Convention on Human Rights and African Charter on Human and Peoples Rights are other regional treaties on human rights. They are also legally binding on the contracting States. They, therefore, are the sources of international human rights law. International custom: There are some global human rights that have come to be seen as routine international law because they are followed in countries and are binding on all whether they have agreed to them or not. Some examples of these are genocide, slavery or slave trade, the murder or causing the disappearance of individuals, torture or other cruel, inhuman or degrading treatment or punishment, prolonged arbitrary detention, systematic racial discrimination, or a consistent pattern of gross violations of internationally recognized human rights. These are heinous acts and are condemned by all and thus form a part of international law. Other international instruments: A large number of international declarations, resolutions and recommendations connecting to human rights have been adopted with the support of the United Nations. Though they are not legally binding on the States but have established broadly recognized standards in connection with human rights issues. The most important of these is the Universal Declaration of Human Rights of 1948, which has moral or political force for persuading government officials to observe human rights standards. Some of the rights referred therein have acquired the character of customary rule of International Law and also serve as the source of the commitment by the international community. Judicial decisions: Decisions of the various national bodies like National Human Rights Commission and international judicial bodies like International Court of Justice and European Court of Human Rights are relevant in the determination of the rules on human rights issues. The decisions of the Supreme Court and high courts on human rights issues have contributed immensely to the development of human rights law. In Human Rights and Media Unit 1 Sikkim Manipal University Page No. 11 addition to the judicial decisions, opinions of the arbitral bodies whose function is to mediate on complaints of human rights violations under the various treaties also help in the determination of the rules relevant to international human rights. Official documentations: United Nations and its subsidiary bodies through their official documents have produced a vast amount of records relating to human rights matters. Human Rights Law Journal, Human Rights Review and European Law Review and the collective work done under the auspices of the international and national bodies are of considerable value. The above are the important sources of international human rights law but they by no means are exhaustive. Many international and national institutions contribute to the protection of human rights. Further, a variety of actions taken by the United Nations organs and other international bodies have also supported specific efforts to protect human rights (Figure 1.1). Religion Official documentation Judicial decisions International treaties & instruments Natural law Human Rights International custom Figure 1.1 : Human rights have been derived from various sources Self-Assessment Questions 3. Fill in the blanks with appropriate words: (a) ________, the chief exponent of the natural rights theory, developed his philosophy within the framework of the 17th century humanism and enlightenment. (b) The _________of 1948, has moral or political force for persuading government officials to observe human rights standards. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 12 4. State whether the following are true or false: (a) A large number of international declarations, resolutions and recommendations connecting to human rights have been adopted with the support of the United Nations. (b) Treaties are the most important sources of international human rights law. 1.4 Perspectives on Human Rights and Human Duties As per United Nations System and Human Rights (2000), human rights are universal legal guarantees protecting individuals and groups against actions that interfere with fundamental freedoms and human dignity. Some of the most important characteristics of human rights are that they: Are guaranteed by international standards Are legally protected Focus on the dignity of the human being Oblige States and State actors Cannot be waived or taken away Are interdependent and interrelated Are universal Human rights are natural rights that stem from human dignity and have some peculiar characteristics. These are described as follows: Internationalism: United Nations Charter, the Universal Declaration of Human Rights, the Vienna Declaration of Human Rights, etc., guarantee respect for human dignity and the right to pursue happiness. These international efforts have been agreed on internationally making human rights a subject of international concern. All the countries are expected to observe these rights equally and with sincerity. Consequently, the guarantee of human rights is given not only by individual States but by the international community as a whole. It is a vital and ever-increasing issue. It has become the common ideology of the whole international community that is beyond State borders. Universality: Human rights go along with the progress of human society and have always been a universal concern of human beings in various Human Rights and Media Unit 1 Sikkim Manipal University Page No. 13 international documents. The dignity, worth and right to happiness of all must be accepted without any condition or clause. Race, colour, sex, language, religion, political opinion, nation, social position, property, origin or other circumstance should not be used for discrimination and that everybody is endowed with all rights and freedoms. Moreover, nobody can be discriminated against because of membership in a particular self- governed or dependent state, nor limited in his rights because of political, legislative or international position. They are objectively accorded regardless of anyones will. Inheritance: Human rights guarantee human dignity and because they were given originally to the people they are recognized as natural inherent rights. Human rights are not granted in accordance with any law or by any State. Absoluteness: Human rights are inalienable rights. So, they are recognized universally and are absolute rights. The essence of human personality, human dignity and worth, confirms them to be inviolable. As such the State must guarantee the peoples dignity, respect and happiness by preventing any law which would do otherwise. Inviolability: Human rights cannot be violated as they are inherent and are internationally enforced. In addition to this, the guarantee of human rights is the duty of the State. The State should neither alienate these rights nor, limit or violate them. Permanence: Human rights are not to be guaranteed temporarily for a certain period of time but should be permanently assured of which nobody could be deprived. The dignity and worth of human beings does not change over time by the status or position. Individuality: Human rights have their basis in peoples dignity, worth and happiness. Every human being is independent and each person possesses a right to be independent which cannot be taken away in lieu of any other thing. Every person has a right to determine own destiny, which is a prerequisite of personal right. In simple terms, human rights are a subject of neither a nation nor of a collective body, but of the individual. Self-determination: All people have the right to self-determination on the basis of inherent human dignity. It means that all people freely determine their own political position and independence, seek their own economic, social and cultural development. As human dignity, worth and happiness Human Rights and Media Unit 1 Sikkim Manipal University Page No. 14 are intrinsic to personal rights, personal rights become a necessary prerequisite for the individuals to determine their own destiny. The subject of human rights is the natural human or the individual who has the right to determine his life. Self-evidence: Men are born equal and with certain fixed, inherent, inalienable rights, including the right to life, freedom and happiness. This is accepted as a self-evident truth. Fundamental: Human rights include the principle of obtaining a guarantee of human dignity, worth and happiness. It is a fundamental norm and produces a basic principle, which has become a standard for analysing the essence of effectiveness of laws and ordinances. Thus, it should be considered a standard of human dignity and worth as far as it is included both in establishing the laws and analysing them. EXHIBIT 1.1 December 19, 2011 Kim Jong-ils Death: An Opportunity for Human Rights in North Korea? By Sharon Singh (Washington, D.C.) The death of North Korean leader Kim Jong-il and assumption of power by his son, Kim Jong-un, present an important opportunity for improving the countrys catastrophic human rights record, Amnesty International said today. Kim Jong-il, like his father before him, left millions of North Koreans mired in poverty, without access to adequate food and healthcare, and with hundreds of thousands of people detained in brutal prison camps, said Sam Zarifi, Amnesty Internationals Asia-Pacific director. With this transition, we hope that the new government will step away from the horrific, failed policies of the past. However, recent reports received by Amnesty International suggest that the North Korean government has purged possibly hundreds of officials deemed to be a threat to Kim Jong-uns succession, by having them executed or sent to political prison camps. In the months immediately following Kim Jong-ils own succession to the North Korean leadership, after the 1994 death of his father Kim Il-Sung, tens of thousands of perceived or potential political opponents and their family members were sent to political prison camps. Political opponents were also executed either in secret or publicly following grossly unfair trials, or no trial at all. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 15 Amnesty International has documented North Koreas abysmal human rights record for years. Freedom of expression and association are almost non- existent. Hundreds of thousands of people deemed to oppose the state are held in detention camps such as the notorious Yodok facility, which detain family members up to three generations. Inmates are forced into hard labor for up to 12 hours a day. Meanwhile, more than a third of the population is suffering food shortages and the healthcare system is in critical decline. Amnesty International has received reports of people surviving on eating bark and grass, the use of unsterilized needles, and major surgeries undertaken without anesthesia. Amnesty International is repeating its call on the North Korean government, as well as international donors, to ensure that food is adequately distributed to the neediest people in North Korea. Nearly a million people have died in North Korea because of acute food shortages since the mid-1990s. Millions more, especially children and the elderly, continue to suffer from chronic malnutrition. This is in large part due to failed or counterproductive government policies implemented under the leadership of Kim Il-Sung and then under Kim Jong-il. The North Korean authorities and the new leader of North Korea must make immediate improvements in human rights including: Immediately and unconditionally release all prisoners of conscience, including family members, held in all political prison camps. All other inmates should be released unless they are charged with an internationally recognizable offense, remanded by an independent court and are given a fair trial Act immediately to stop forced labor, torture and other ill-treatment of prisoners including those held in all political prisons camps Grant immediate and unfettered access to international humanitarian agencies such as the U.N. World Food Program to ensure that food reaches those most in need Address severe shortages in the healthcare system including through accepting international humanitarian assistance and providing full cooperation and access to ensure that care reaches those most in need Immediately end public and secret executions Thoroughly, independently and impartially investigate past and current allegations of abductions and enforced disappearances Human Rights and Media Unit 1 Sikkim Manipal University Page No. 16 Ensure the rights to freedom of expression and religion provided for in the Constitution and in relevant international human rights instruments are fully guaranteed in practice Take immediate action to implement the recommendations of international human rights experts and recommendations made to North Korea during the Universal Periodic Review. Invite independent monitors such as the U.N. Special Rapporteurs on the right to food, the right to freedom of opinion and expression, freedom of religion and belief, and in particular the situation on human rights in the Democratic Peoples Republic of Korea to the country Amnesty International is a Nobel Peace Prize-winning grassroots activist organization with more than 3 million supporters, activists and volunteers in more than 150 countries campaigning for human rights worldwide. The organization investigates and exposes abuses, educates and mobilizes the public and works to protect people wherever justice, freedom and dignity are denied. Source: http://www.amnestyusa.org/news/press-releases/kim-jong-il-s-death-could- be-opportunity-for-human-rights-in-north-korea-says-amnesty-international Human Rights Self-evidence Fundamental Internationalism Universality Inheritance Absoluteness Inviolability Permanence Individuality Self-determination Figure 1.2 Characteristic Features of Human Rights Human Rights and Media Unit 1 Sikkim Manipal University Page No. 17 Types of Rights Rights can be categorized as inherent rights, inalienable rights, universal rights, individual rights and group rights. Individual Rights Collective or Group Rights Universal (International or global) Rights Figure 1.3 Types of Rights Inherent Rights All human beings come under the umbrella of human rights irrespective of their nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. Every individual is entitled to his human rights without discrimination. All human rights are interrelated, interdependent and indivisible. Inheritable rights are those that can be passed on from one generation to the next such as the right to possess ancestral property. In the case of human rights, these are basic rights that a human being is born with, such as the right to food. These rights are basic for survival and for maintenance of minimum living standards. According to Morsink, everyone has human rights simply by virtue of being born into the human family and regardless of any government or court action (or inaction). Human rights thus are global and not outcomes of a particular culture, economic scheme, or political system. Inherent rights and Indigenous People Indigenous peoples human rights, like all human rights, are widely recognized as inherent and inalienable. UN declarations do not grant human rights, and cannot be used to extinguish them. We have rights as Indigenous peoples, because we exist as Indigenous peoples. Declarations can affirm that specific Human Rights and Media Unit 1 Sikkim Manipal University Page No. 18 human rights are recognizedby governments, and may describe them in more detail. The Preamble to the UN Declaration on the Rights of Indigenous Peoples further reinforces that the collective rights of indigenous peoples are inherent. Recognizing the urgent need to respect and promote the inherent rights of indigenous peopleswhich derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources. Governments can contribute to the language of a declaration. Governments can agree to a human rights declaration. They can sign and ratify a human rights treaty.Governments can promote and protect human rights that are recognized internationally or regionally. Article 1 of the Declaration affirms: Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in international human rights law. The collective right of Indigenous peoples to self-determination is enumerated in both the International Covenant on Civil and Political Rights (ICCPR) and the InternationalCovenant on Economic, Social, and Cultural Rights (ICESCR). It reads, in part: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. All peoples may, for their own ends, freely dispose of their natural wealth and resources In no case may a people be deprived of its own means of subsistence. Another example from the ICCPR is the right to our own cultures. A broad definition of culture is applied to this right, which acknowledges an indigenous perspective. Culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting Inalienable Rights We can define inalienable rights as those that cannot be surrendered, sold or transferred. They can be referred to as natural or God-given rights (life, liberty Human Rights and Media Unit 1 Sikkim Manipal University Page No. 19 and the pursuit of happiness). Certain rights such as a social security number are inalienable only because the law prohibits reassigning an individuals number to someone else. Inalienable rights are those that can only be handed over to someone else when the person who possesses them agrees to do so. Human rights are inalienable and should be taken away only according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law. All human rights are indivisible, whether they are civil or political rights, such as the right to life, equality before the law, and freedom of expression. Economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self- determination, are indivisible, interrelated and interdependent. When one right changes for the better, it leads to expansion of other rights. Similarly, restraining one right can have a negative effect on others. Thus, they are related. Universal Rights Universality of human rights is the foundation of international human rights law. First laid down in the Universal Declaration of Human Rights, 1948, this principle has been reiterated in numerous international human rights conventions, declarations, and resolutions. For example, the 1993 Vienna World Conference on Human Rights stressed on the responsibility of States to uphold and support all human rights and basic freedoms, regardless of their political, economic and cultural systems. Universal human rights are endorsed and safeguarded by law. This may be done in various ways such as through treaties, customary international law, general principles and other sources of international law. International human rights law offers guidelines to governments so as to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups. All nations have ratified at least one, and 80 per cent have ratified four or more of the core human rights treaties. This shows the nations aspiration to create legal obligations and give concrete expression to universality of human rights. Clearly there are some basic human rights norms that have universal protection provided by international law across all boundaries and civilizations. Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all major human rights treaties and is at the centre of some international human rights conventions such as the International Convention Human Rights and Media Unit 1 Sikkim Manipal University Page No. 20 on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women. The principle is pertinent to all vis a vis human rights and freedoms and prohibits discrimination on the basis of sex, race, colour, etc. The principle of nondiscrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: All human beings are born free and equal in dignity and rights. Individual Rights Individual rights are those that are held by a person rather than by a group. An individual can have rights by any of these ways: mandated by the law, provided by social means, or gained through self-determination. These rights are normally related to the concept of nature. It is true that everyone is born with rights that cannot be denied. According to political scientists, individual rights can either be negative or positive. When a person is not supposed to act on a certain principle it becomes a negative right and when he may act in a certain capacity if he wants then it is a positive right. This can either be authorized by the laws of a society or simply exist in a natural way. For example, a negative right prevents a person from stealing and a positive right gives him the liberty to speak freely. Individual rights globally are related to the concept of individualism. In the United States, individual rights are often viewed as a means to promote freedom and curtail the government or the majority. This is close to what is followed in most European countries. Interestingly, most debates regarding individual rights relate to negative rights. In China, individual rights are suppressed so as to prevent an upheaval in society and ensure a strong central power. This is maintained by coalescing negative rights with positive rights. Essentially what it means is that an individual works within a parameter of what he can and cannot do. The concept of a right largely pertains to freedom of action. It incorporates freedom from physical compulsion, coercion or interference by other men. Thus, a right is the moral sanction that a person has so that he can act freely on his own judgment, for his own goals, by his own voluntary choice. His rights impose no obligations on others around him except of a negative kind: to abstain from violating his rights. An individual right is the only proper principle of human coexistence because it rests on mans nature, i.e. the nature and requirements of a conceptual consciousness. While living in a human society is the proper way of life and man can benefit enormously from this interdependence, it comes Human Rights and Media Unit 1 Sikkim Manipal University Page No. 21 with certain caveats: Man is not a lone wolf and he is not a social animal. He is a contractual animal. He has to plan his life long-range, make his own choices, and deal with other men by voluntary agreement (and he has to be able to rely on their observance of the agreements they entered). Since man has inalienable individual rights, it is clear that others too hold such rights. Naturally, the rights of one man cannot and must not violate the rights of another. A man has the right to live but he cannot take the life of another. He has the right to be free but cannot enslave another. He has the right to choose his happiness, but not by causing misery to others. In this way, his own rights instruct him as to what he may or may not do. Within the sphere of your own rights, your freedom is absolute A right cannot be taken away except by physical force. A person does not have the right to take away the life of another, nor enslave him, nor prohibit him from pursuing his happiness. If he does this it will only be with the use of force. Whenever a man is made to act without his own free, personal, individual, voluntary consent his right is violated. There is there must be an unambiguous division between the rights of one man and those of another. It is an objective division to subject to differences of opinion, nor to majority decision, nor to the arbitrary decree of society. No man has the right to use physical force against another. Any alleged right of one man, which necessitates the violation of rights of another, cannot be called a right. Individual rights are not subject to public vote. The majority population cannot veto the rights of a minority. In fact, the political function of rights is to protect minorities from oppression by majorities (and the smallest minority on earth is the individual). When individual rights are abrogated, we cannot say who is entitled to what. There is no way to determine the fairness of anyones claims, desires, or interests. If we turn to the tribal way of living which says that ones wishes are limited only by the power of ones gang, we find that to survive under such a system, people have to resort to fear, hatred, and destruction of one another. One of the notions to justify the draft (which draft?)is that rights impose obligations. Obligations, to whom and imposed by whom? It implies that rights are a gift from the state, and that a man has to buy them by offering something (his life) in return. This is a contradiction and wrong because the function of a government is to protect mans rights. It is not entitled to his life in exchange for that protection. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 22 The only obligation that an individual has vis a vis his rights is one that is imposed by the nature of reality (i.e., by the law of identity). It refers to consistency, which means that if one wishes ones own rights to be recognized and protected then one must respect the rights of others. Group Rights Group rights are those that are granted to a group or a community rather than to an individual, and they are held by individuals only when they belong to a specified group. Alternatively, individual rights are those that are given to each person, whether they belong to a group or not. Significantly it has been seen in the past that group rights can both infringe upon and facilitate individual rights. This is what makes them so controversial. Group rights are not universal to all people and are not granted to a person just by virtue of being human. Since only an individual can possess rights, the expression individual rights is a redundancy (which one has to use for purposes of clarification in todays intellectual chaos). Collective rights is a contradiction in terms. A group, as such, has no rights. A man can neither acquire new rights by joining a group nor lose the rights that he possesses. Clearly, the principle of individual rights is the only moral base for all groups or associations. Individual rights have connotations of political and economic freedom, whereas group rights are associated with social control. The reason for this is that individual rights came about in connection with equality before the law and protection from the state. Examples include Magna Carta wherein the King of England consented that his will could be constrained by the law and certain rights of the Kings subjects were explicitly protected. Group rights in the context of colonialism that legalized racism and white nationalism have a negative meaning. Here group rights are granted to a privileged group. For example, in colonized South Africa inhabitants were classified into racial groups (black, white, coloured and Indian). Rights were awarded on a group basis and citizens were divided between first class and second class. In the modern world, some acknowledge the power of group rights to actively facilitate the realization of equality. In a society that provides for equality before the law for all citizens, equality often refers to material equality. Thus the group needs special protective rights so that its members enjoy living conditions that are similar to or equal with the rest. Examples of such groups include indigenous peoples, ethnic minorities, women, children and the disabled. This debate occurs in the context of negative and positive rights. Some commentators and policy-makers view equality as both a negative right, in the sense of ensuring freedom from discrimination and a positive right, in that the realization of equality requires redistributive action by Human Rights and Media Unit 1 Sikkim Manipal University Page No. 23 others or the state. In this respect group rights can aim to ensure equal opportunity and actively redress inequality. Many countries have programmes relating to reverse discrimination or positive discrimination. The US has a non-quota race preference called affirmative action for government jobs and educational institutions. India has many affirmative action quotas or reservations that hope to redress historical inequalities of opportunity, some of which are a product of the caste system. Group rights here seek to realize equality of opportunity and/or equality of outcome. Affirmative action is controversial because it is not consistent with the absolute application of the right to equality. There are other groups the rights of which cater to organizational persons, including nation-states, trade unions, corporations, trade associations, chambers of commerce, and political parties. Such organizations have rights that are particular to their specific functions and their capacities to speak on behalf of their members. This means the corporation can speak to the government on behalf of individual customers or employees. Another example is that of trade unions that can negotiate for benefits with employers on behalf of all workers in a company. Individual Rights vs Group Rights Ordinarily, the notion of rights in liberal western tradition is understood as guaranteed to the individual. Thus, the liberal thinkers generally understand rights as entitlements or interests which individuals possess against the state authority. In brief, group rights are generally the rights that are granted for the welfare of a community or society at large. For instance, the rights enshrined under Part IV of the Indian Constitution, which are described as Directive Principles of State Policy, are group rights as they are guaranteed for the general welfare of the society. The International Covenant of Social and Economic Rights (ICSCR) also incorporate rights of a similar nature. Students of constitutional law are well aware how the right to property (an individual right) under the Indian Constitution became a cause of struggle against the states effort to secure social/ land reforms. Indeed, the entire controversy leading to the Doctrine of Basic Structure in the Kesavananda Bharti case (1973) (see box) was a conflict between the individual right to property and social right to reduction of inequality of income. Thus, the conflicting interests of individual rights and societal/ group rights have led to a constant controversy. One of the major points of difference between capitalists and socialists is their preference of individual and societal rights. The former have emphasized the relative superiority of the individual rights, whereas the latter have advocated for socio-economic rights above individual rights. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 24 Kesavananda Bharati vs the State of Kerala and Others: when individualright was superseded by socio-economic rights Kesavananda Bharati vs The State of Kerala and Others is a landmark decision of the Supreme Court of India. It is the basis for the power of the Indian judiciary to review,and strike down, amendments to the Constitution of India passed by the Indian Parliament which conflict with or seek to alter the Constitutions basic structure.The judgment also defined the extent to which Parliament could restrict the right to property, in pursuit of land reform and the redistribution of large land holdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power toamend the Indian Constitution. Earlier, in 1967, in Golak Nath vs. the State of Punjab, a bench of eleven Supreme Court judges deliberated as to whether any part of the Fundamental Rights provisions of the Constitution could be revoked or limited by amendment of the Constitution. This question had previously been considered in Shankari Prasad vs Union of India and Sajjan Singh vs State of Rajasthan. In both cases, the power to amend the rights had been upheld on the basis of Article 368. In 1973, thirteen judges of the Supreme Court, including then Chief Justice, heard arguments in the Kesavananda Bharati vs the State of Kerala and thusc onsidered the validity of the 24th, 25th and 29th Amendments, and more basically the correctness of the decision in the Golak Nath case. This time, the Court held, by the thinnest of margins of 7-6, that although no part of the Constitution, including Fundamental Rights, was beyond the amending power of the Parliament (thus overrulingthe 1967 case), the basic structure of the Constitution could not be abrogated even by a constitutional amendment. Self Assessment Questions 5. Fill in the blanks with appropriate words: (a) _____ rights are rights held by a group rather than by its members separately. (b) In the ________, the English King accepted that his will could be bound by the law. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 25 6. State whether the following are true or false: (a) The capitalists have emphasized the relative superiority of the individual rights, whereas the socialists have advocated for socio- economic rights above individual rights. (b) The sociologists have emphasized the relative superiority of the individual rights, whereas the capitalists have advocated for socio- economic rights above individual rights. 1.5 Nature and Concept of Duties Duty refers to an act or a course of action that is required of one by position, social custom, law, or religion. According to Salmond: A duty is an obligatory act, that is, it is an act opposite of which would be a wrong. Duties and wrongs are correlatives. The commission of a wrong is the breach of duty and the performance of a duty is the avoidance of wrong. Duties are of two kindslegal and moral. A legal duty is an act required to be carried out by law and treated as such for the administration of justice. A moral or natural duty is an act the opposite of which is a moral or natural wrong. A duty may be moral but not legal, or legal but not moral, or both at once. For example, it is a legal duty not to sell adulterated milk knowingly. There is no legal duty to refrain from offensive curiosity about ones neighbours even if its satisfaction does them harm. This is a moral duty but not a legal duty. Duties may be positive or negative. When the law obliges us to do an act, the duty is called positive. When the law obliges us to forbear from doing an act, the duty is negative. If R has a right to a land, there is a corresponding duty on persons generally not to interfere with his exclusive use of the land. Such a duty is a negative duty. It is extinguished only if the right itself is extinguished. If S owes a sum of money to Y, the former has a duty to pay the amount due. This is a positive duty. In the case of positive duties, the performance of the duty extinguishes both duty and right but a negative duty can never be extinguished by fulfillment. Duties can also be primary and secondary. Primary duties are those which exist per se and independently of any other duty. An example of a primary duty is to forbear from causing personal injury to another. A secondary duty is that which has no independent existence but exists only for the enforcement of other duties. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 26 An example of a secondary duty is the duty to pay a man damages for the injury already done to his person. It is also called a remedial, restitutory or sanctioning duty. According to Austin, some duties are absolute. Those duties do not have a corresponding right. Examples of absolute duties are self-regarding duties such as a duty not to commit suicide or become intoxicated, a duty to indeterminate persons or the public such as a duty not to commit a nuisance, a duty to one who is not a human being, such as a duty towards God or animals and a duty to sovereign or State. 1.5.1 Concept of Duty in the Indian Constitution The Constitution Amendment Act, 1976, breaks new ground by introducing the innovative concept of Fundamental Duties of the Indian citizens in the Constitution. For this purpose, a new Part IVA consisting of Article 51 A has been added to the Constitution. Article 51 A lays down the following ten Fundamental Duties: 1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem 2. To cherish and follow the noble ideals which inspired our national struggle for freedom 3. To uphold and protect the sovereignty, unity and integrity of India 4. To defend the country and render national service when called upon to do so 5. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional diversities; to renounce practices derogatory to the dignity of women 6. To value and preserve the rich heritage of our composite culture 7. To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures 8. To develop a scientific temper, humanism and a spirit of enquiry and reform; 9. To safeguard public property and to abjure violence 10. To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement Human Rights and Media Unit 1 Sikkim Manipal University Page No. 27 It is not clear whether a law made for enforcement of a basic duty can infringe a Fundamental Right or not. There is no provision clarifying the relationship between Fundamental Duties and Fundamental Rights. Perhaps, the idea is that these precepts should become a part and parcel of every Indians thoughts and actions. 1.5.2 Interrelationship between Rights and Duties Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against the violation of human rights. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others. It is a debatable question whether rights and duties are necessarily correlative. There are two schools of thought, one led by Salmond (which claims that duty and right are correlative) and the other led by Austin (which claims that they are not correlative). The word correlative suggests something which is mutual, complementary, reciprocal or corresponding. Correlations signify something that occurs together. The term correlative does not mean opposite. Duty is not the opposite of right, it is a correlative of right; i.e., they occur together. The opposite of right is no- right. The view that duties and rights are correlative: According to Salmond, a duty is an obligatory act, it is an act, the opposite of which is a wrong. When we do a wrong we have violated the right of another. Wrong (breach of duty), therefore, signifies violation of a right. Salmond contends that there can be no duty unless there is someone to whom it is due. There can, therefore, be no right without a corresponding duty, and no duty without a corresponding right; just as there cannot be a wife without a husband or a father without a child. Examples: (a) A right to receive a debt on part of the creditor implies a corresponding duty on part of the debtor to pay the amount. (b) If I have a right to my reputation, then it means that you are under a duty not to spoil my reputation. Thus, we see that every right or duty involves a vinculum juris, or bond of legal obligation, by which two or more persons are bound together. Thus, every Human Rights and Media Unit 1 Sikkim Manipal University Page No. 28 duty must be a duty towards some person, in whom therefore, a corresponding right is vested. And conversely, every right must be a right against some person, upon whom therefore, a correlative duty is imposed. By and in the large, the courts have also accepted the line that rights and duties are correlative. Thus, in Lake Shore & M.S.R. Co. v. Kurtz (1894) the court said: A duty or a legal obligation is that which one ought or ought not to do. Duty and Right are correlative terms. When a right is invaded, a duty is violated. The view that duties and rights are not necessarily correlative: This school of thought is led by Austin and is supported by C.K. Allen. According to Austin, every right implies a corresponding duty, but every duty does not necessarily imply a corresponding right. Austins equation is as below: If R, then D. If D, then may or may not R. Examples: (a) It is the duty of a judge to punish an offender who is guilty; but it cannot be said that the duty of the judge implies a corresponding right on part of the offender to be punished. (b) Duties towards the public at large or toward indeterminate portions of the public have no correlative rights such as the right to refrain from committing a public nuisance. According to Austin there are two kinds of dutiesrelative duty and absolute duty. Relative duties are duties that have rights corresponding to them (for example, the right to debt has the corresponding duty to pay the debt). On the other hand, absolute duties do not have rights corresponding to them (for example, a judges duty to punish does not imply a corresponding right on part of the offender to be punished). In conclusion, it may be said that duties in the strict sense of the term have corresponding rights, but duties in the wider sense do not. Activity 1 Can you recall some incident of human rights violation in the context of religion? Write a note on the issue and its repercussions. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 29 Self-Assessment Questions 7. Fill in the blanks with appropriate words: (a) Duties are of two kinds legal and _____________. (b) When the law obliges us to do an act, the duty is called ________; when the law obliges us to forbear from doing an act, the duty is ___________. 8. State whether the following are true or false: (a) According to Salmond, there can be no right without a corresponding duty. (b) While relative duties have no corresponding rights, absolute duties have rights corresponding to them. 1.6 UN and UN Charter After World War I, the League of Nations was established in the year 1921 to prevent such a war in the future. However, the League of Nations proved a failure due to many reasons and soon World War II began in the year 1939, with the world facing another event of large-scale mass destruction and violation of humanity. Efforts for the creation of an international organization, in order to establish peace, were being made even during World War II. A number of conferences and meetings were held, in which many declarations were adopted like the Declaration of St. James Palace (1941), Atlantic Charter (1941), United Nations Declaration (1942), Moscow Declaration (1943), Tehran Declaration (1943), Dumbarton Oaks Conference (1944) and San Francisco Conference (1945). The result of these conferences and declarations was the establishment of an international organization to maintain peace and security in the world and in this way in the year 1945, United Nations came into existence on 24 October. At the San Francisco Conference delegates of many nations expressed that the United Nations should establish an International Bill of Rights. However, the concept of the International Bill of Rights did not gain much ground but many nations realized that it should be an obligation of the international community to promote human rights. The conference resulted in the adoption of the United Nations Charter containing some provisions which were general in nature and vague in the context of promoting and protecting human rights and fundamental rights. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 30 Just as the United Nations was established the Cold War broke out. For decades, the Security Council was beleaguered by hostilities that marked the USSR and US relations. This was reflected in the way in which the two countries rejected those resolutions that the other supported. Because of this, the enforcement mechanisms of the Security Council were seen as inadequate. This scenario changed when the Cold War ended. The US has made the provisions of the UN Charter binding and this is manifest in Article 6, clause 2 of the US Constitution. It says treaties of which the UN Charter is one are considered the supreme law of the land. Article 103 of the UN Charter underscores that the charter will supercede all other conflicting treaties. It says: In the event of conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. As the world witnessed another great war, the leaders of Britain, China, the US and the USSR, were under severe pressure to discuss the formation of a post-war organization. In 1944, representatives of the above countries met at Dumbarton Oaks in Washington, DC, and prepared a blueprint for an international organization. As the war was coming to an end, representatives of 50 countries gathered in San Francisco, between April and June 1945, to draft the text of what would be the foundations of international cooperation. This was the Charter of the United Nations, signed on 26 June by 50 countries. Poland, the 51st country, was not able to send a representative to the San Francisco conference but is considered an original member. Even though the League was discarded, most of its ideals and some of its structure were kept by the United Nations and outlined in its Charter. The new world organization stressed on peace and social and economic progress. This was adapted to suit the needs of a new and more complex world that emerged after the war. The Leagues Council was transformed into the Security Council consisting of the five victors of the war as permanent members and ten other countries serving two-year terms. The five permanent members were China, France, the UK, the USSR, and the US. These five members were also given veto power. This implies that these members have the power to obstruct any decisions taken by the Security Council. This is important as the Security Council is the main organ of the UN and is responsible for maintenance of peace. Also, the decision of the Security Council is obligatory on all member states. Over the years there has been a shift of balance of Big Powers with the joining of over Human Rights and Media Unit 1 Sikkim Manipal University Page No. 31 one hundred new Member States, mainly non-Western. Along with these changes, there are now demands that the Security Council be reformed. Social activities listed in Leagues Covenant was changed into an activity of economic and social cooperation. This was seen as essential to maintain stability and peaceful relations among nations. A new organ, the Economic and Social Council was formed under whose umbrella, specialized agencies in the fields of labour, education, health, agriculture, development and many others would be coordinated within the UN. As racism and repression abounded, the need was felt to incorporate a new, peoples element into the Charter. That element was of rights. Many sorts of rights, from the right to self-determination, which encouraged the independence of colonized peoples, to general human rights, which aimed to protect individuals, are enshrined in the Charter, the Universal Declaration of Human Rights and two Covenants which have become major, standard-setting additions to international law. The League of Nations came into being after World War I. Out of the 42 original countries, 26 were non-European. At one time, 57 countries were members of the League. The League was created out of the belief that a world organization of nations could be effective in helping create peace in the world and prevent another catastrophe like the World War from happening. It would be possible for the world body to be a success as communication was now so much easier. Also, people now had the experience of working together in international organizations. The need was increasingly being felt for coordination and cooperation for economic and social progress. The League worked with two aims. First was the preservation of peace through collective action. The Leagues Council was referred to for arbitration and conciliation. Economic and military sanctions could be used as a last resort. In other words, members undertook to defend other members from aggression. Secondly, the League aimed to promote international cooperation in economic and social affairs. The Covenant of the League of Nations begins... In order to promote international cooperation and to achieve international peace and security by the acceptance of obligations not to resort to war, by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another, Agree to this Covenant of the League of Nations. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 32 The commencement of World War II showed the failure of the League to keep peace. The League had no military power of its own but depended on contributions by members. These members, however, were not keen to use sanctions, economic or military. Moral authority was insufficient. The League did not get support from the big powers: the United States crucially never joined; Germany was a member for only seven years from 1926 and the USSR for only five years from 1934; Japan and Italy both withdrew in the 30s. The League then depended mainly on Britain and France, who did not like to act forcefully. to work through this new organization. After working independently, governments found it difficult to work through this new organization. The Charter of the United Nations is the starting point on which the organization is based. It is the guiding light to all that the organization does. It is against this background that the UN composes its aims and objectives, along with the rights and obligations of member states. It also inscribes the procedures of the United Nations. It was the terms as described in the United Nations charter that gave a platform for the development of international human rights protection. The preamble of the charter maintains that the members reaffirm faith in fundamental human rights, in the equal rights of men and women and Article 1(3) of the United Nations charter states that the UN seeks: to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. Article 55 provides that: The United Nations shall promote: a) higher standards of living, full employment, and conditions of economic and social progress and development; b) solutions of international economic, social, health, and related problems; c) international cultural and educational cooperation; d)universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. Article 56 of the charter is significant: All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55. This stipulation is obligatory for the Organization and its members and constitutes a legal commitment for all members of the United Nations. However, references to human rights in the Charter are not specific. It does not have any definite legal rights, nor does it have any authority with which it can protect these rights. In spite of this we Human Rights and Media Unit 1 Sikkim Manipal University Page No. 33 cannot underestimate the fact that human rights have been adopted in the UN charter. In fact the reason why human rights occupy such a significant position globally is because they have been given such importance in the United Nations framework. The UN Charter heralded the development of a broad array of declarations, treaties, implementation and enforcement mechanisms, UN organizations, committees and reports on the protection of human rights. The rights advocated in the UN charter are codified and defined in the International Bill of Human Rights, which composes the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Self-Assessment Questions 9. Fill in the blanks with appropriate words: (a) Signed by 51 states, the UN charter formally entered into force on _______1945. (b) The League of Nations was founded immediately after ________. 10. State whether the following are true or false: (a) The Charter of the United Nations is essentially the organizations founding document. (b) Germany was a member of the League of Nations for only three years from 1926. 1.7 International Bill of Rights The International Bill of Human Rights consists of the Universal Declaration of Human Rights (adopted in 1948), the International Covenant on Civil and Political Rights (1966) with its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights (1966). Following the sanctions of an adequate number of countries, the two agreements came into force in 1976. Initially there were conflicting views of how the bill of rights should be structured. In 1948, the bill was planned by the General assembly to include UDHR, one Covenant and measures of implementation. Two documents were then prepared by the Drafting Committee. One in the form of a declaration, which would set forth general principles or standards of human rights; the other Human Rights and Media Unit 1 Sikkim Manipal University Page No. 34 in the form of a convention, which would define specific rights and their limitations. Draft articles of an international declaration and an international convention on human rights were passed on by the Drafting Committee to the Commission on Human Rights. In December 1947, at its second session, the Commission took a decision to use the term International Bill of Human Rights to the series of documents in preparation and established three working groups: one on the declaration, one on the convention (which it renamed covenant) and one on implementation. Deliberating on the observations made by governments, the Commission amended the draft declaration at its third session, in May/June 1948. However, there was no time to consider the covenant or the question of implementation. The declaration was therefore submitted through the Economic and Social Council to the General Assembly, meeting in Paris. 1.8 Individual and Human Rights The fading away of the feudal authoritarianism and religious conservativism that was prevalent during the Middle Ages, coupled with the Renaissance in Europe, led to the concept of human rights. The attempt of European scholars to form a secularized version of Judeo-Christian ethics led to a clear definition of human rights. Though ideas of rights and liberty have been around for very long, they are quite distinct from the modern notions of human rights. Jack Donnelly says that in the ancient world, traditional societies typically have had elaborate systems of duties... conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, flourishing, or well- being entirely independent of human rights. These institutions and practices are alternative to, rather than different formulations of, human rights. The perception of universal human rights was an alien concept in the ancient world, including ancient India, ancient China and ancient Greece and Rome. Slavery, in ancient times, was regarded as a natural condition. Medieval charters of liberty such as the English Magna Carta were not charters of human rights, instead they were more of a limited legal and political agreement to address specific political circumstances. The Magna Carta was later mythologized in the course of early modern debates about rights. If we look back to recent European history, we can find the origin of modern legal explanations of human rights. The Twelve Articles (1525) are considered to be the first record of human rights in Europe. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 35 They were part of the peasants demands raised towards the Swabian League in the German Peasants War in Germany. In Spain in 1542 Bartolom de Las Casas argued against Juan Gins de Seplveda in the famous Valladolid debate, Seplveda held on to an Aristotelian view of humanity as being divided into classes of different worth. Las Casas argued in favor of equal rights to freedom of slavery for all humans regardless of race or religion. In Britain in 1683, the English Bill of Rights (or An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown) and the Scottish Claim of Right each made illegal a range of oppressive governmental actions. The 18th century saw two major revolutions taking place in the United States (1776) and in France (1789), which lead to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain legal rights. Additionally, the Virginia Declaration of Rights of 1776 encoded into law a number of fundamental civil rights and civil freedoms. Declaration of the Rights of Man and of the Citizen was approved by the National Assembly of France, August 26, 1789. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. United States Declaration of Independence, 1776 During the 18th and 19th centuries, philosophers such as Thomas Paine, John Stuart Mill and G.W.F. Hegel developed philosophy of human rights. The term human rights probably came into use sometime between Paines The Rights of Man and William Lloyd Garrisons 1831 writings in The Liberator, in which he stated that he was trying to enlist his readers in the great cause of human rights. In the 19th century, the matter of slavery was taken up as an issue of human rights. Many reformers, like William Wilberforce in Britain, campaigned the cause of abolition of slavery. Their efforts bore fruit in the British empire, with the passing of the Slave Trade Act 1807 and the Slavery Abolition Act 1833. Though the northern states of the United States had managed to abolish slavery between 1777 and 1804, the southern states still could not let go of this institution. Slavery now expanded to new areas and this was one of the prime reasons which led to the American Civil War. Throughout the period after the war, when rebuilding was taking place, several amendments to the United States Constitution were made. These included the 13th amendment, banning slavery, the 14th Human Rights and Media Unit 1 Sikkim Manipal University Page No. 36 amendment, assuring full citizenship and civil rights to all people born in the United States, and the 15th amendment, guaranteeing African Americans the right to vote. Intense social change, relating to human rights, was brought about during the course of the 20th century. Labour union laws came into effect in Western Europe and North America. These laws granted workers the right to strike, established minimum work conditions and forbade or regulated child labor. The womens rights movement succeeded in gaining for many women the right to vote. Colonial powers in many countries were ousted due to the national liberation movement. The most notable among them was the movement led by Mahatma Gandhi to free India from British rule. Racial and religious minorities who had been exploited, rose in protest and succeeded in their mission. Among them was the African American Civil Rights Movement, and more recently, diverse identity politics movements, on behalf of women and minorities in the United States. It was the establishment of the International Committee of the Red Cross, the 1864 Lieber Code and the first Geneva Convention in 1864 that paved the way for International humanitarian law. It got a boost after the two World Wars, when the world watched helplessly as inhuman atrocities were committed against mankind. It was the gross violations of human rights that spurred the movement towards modern human rights. The League of Nations was formed in 1919 Its goals included disarmament, prevention of war through collective security, settling disputes between countries through negotiation and diplomacy, and improving global welfare. Enshrined in its charter was a mandate to promote rights, many of which were later included in the Universal Declaration of Human Rights. At the 1945 Yalta Conference the Allied Powers voiced the need for a new body that would replace the League of Nations. Thus the United Nations came into being and has since played an important role in international human-rights law. In the years after the World Wars, the United Nations and its members developed much of the discourse and the bodies of law that now make up international humanitarian law and international human rights law. Many key ideas that lent vitality to the movement rose out the Second World War and the indignities suffered during the Holocaust. In 1948, the Universal Declaration of Human Rights was adopted by the United Nations General Assembly in Paris. The notion of universal human rights was a new one. Ancient societies had elaborate systems of duties... conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, flourishing, Human Rights and Media Unit 1 Sikkim Manipal University Page No. 37 or well-being entirely independent of human rights. The modern concept of human rights came about in the early Modern period, parallel with the European secularization of Judeo-Christian ethics. The concept of natural rights heralded the human rights discourse. Natural rights appeared as part of the medieval Natural law tradition, shot into the limelight during the Enlightenment thanks to philosophers such as John Locke, Francis Hutcheson, and Jean-Jacques Burlamaqui, and featured prominently in the political discourse of the American and the French Revolutions. It was the foundation on which the modern human rights movement grew during the second half of the twentieth century. Later, it became a crucial issue of debate in the world agenda. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. ..Article 1 of the United Nations Universal Declaration of Human Rights (UDHR) Self-Assessment Questions 11. Fill in the blanks with appropriate words: (a) All human beings are _______and equal in dignity and rights. (b) At the 1945 _________, the Allied Powers agreed to create a new body to supplant the role of the League of Nations. 12. State whether the following are true or false: (a) The basis of most modern legal interpretations of human rights can be traced back to recent European history. (b) Human rights are commonly understood as alienable fundamental rights to which a person is inherently entitled simply because she or he is a human being. 1.9 State Responsibility in International Law The laws of state responsibility are the principles governing when and how a state is held responsible for a violation of an international obligation. Instead of laying down any specific commitment or responsibility, the rules of state responsibility decide when an obligation has been violated and what are Human Rights and Media Unit 1 Sikkim Manipal University Page No. 38 the legal outcomes of that violation. It means that basic issues of responsibility are dealt by secondary rules and a solution is available for violation of primary or substantive rules of international law, such as with respect to the use of armed force. Since these rules are quite general, they can be examined without the help of primary rules of obligation. They determine when an act will be labeled as internationally wrong and the situations under which actions of officials, private individuals and other entities may be attributed to the state, general defences to liability and the consequences of liability. Previously, the theory of the law of state responsibility was still in a nascent stage. However, a change has come about due to the adoption of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Draft Articles) by the International Law Commission (ILC) in August 2001. The Draft Articles are a combination of codification and progressive development. The International Court of Justice has often quoted these and they have been well received. Though the articles are not specific, they may not be suitable in all cases. Particular treaty regimes, such as the General Agreement on Tariffs and Trade and the European Convention on Human Rights, have established their own special rules of responsibility. The onus for violation of international obligations lies with each state and they are held accountable for the acts. This is the basic principle of state responsibility. State responsibility also requires states to take accountability for any illegal actions and make good the harm they may do others. This is a fundamental principle, which forms part of international customary law, and is binding upon all states. The policy on state responsibility does not indicate the subject matter of a states obligations under international law, for example that torture is forbidden, or that a state must provide medical services to the civilian population. These obligations are specified in numerous international law treaties and in international customary law.The rules on state responsibility simply classify when a state can be held responsible for violating those obligations, and what is the penalty if it fails to discharge its responsibility. The international law allows certain rights and duties, which states, other international entities and individuals can enjoy. However, when these obligations are breached, individuals as well as states may have to bear the brunt of it. We can thus identify that states have responsibilities: 1. Towards their own citizens, and people under their jurisdiction, based on human rights law. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 39 2. Towards civilians, including occupied people, as well as combatants of the other party, during armed conflicts under International Humanitarian Law (IHL). 3. Towards other states, or international organizations (e.g. UN), based on general principles of international law, as well as specific bilateral and multilateral conventions that they have signed and ratified, including human rights and IHL treaties. 4. Towards the international community as a whole when it comes to very important rules, such as the prohibitions on genocide and torture. It can be seen that the state is not responsible for all acts of individuals. The state will be held responsible only if the breach committed is linked to that state. The state must be accountable for the individual who committed the violation. If this condition does not hold, then only individual criminal responsibility s at risk. There are some state organs or institutions which are characteristic of the state and their acts are the responsibility of the state. These could be organs that exercise legislative, executive, judicial or any other functions (parliament, police, court etc.). Armed forces is an organ whose activities are directly connected to the state. Therefore, all people associated with this are the responsibility of the state and the state is responsible for their action irrespective of whether they operate in the home country or abroad. The acts of persons or entities exercising elements of governmental authority are attributable to the state. This rule would, for example, cover private corporations, which are authorized by the state to exercise certain public functions in prisons, checkpoints etc. A violation is only attributable to the state if the organ or person, from the categories above, acts in his or her formal public capacity. However, attribution can be made even if the person or organ exceeds its authority or does not follow instructions. According to International Humanitarian Law (IHL), a party to the conflict shall be responsible for all acts by persons forming part of its armed forces (Article 3 Hague Regulation IV, Article 91 IAP). By this, it is clear that state responsibility extends not only to official capacity but also to the private actions of armed forces. This indicates that when a war is on, it is assumed that each soldier is on duty and all his actions will be under scrutiny of the state, including Human Rights and Media Unit 1 Sikkim Manipal University Page No. 40 private actions. For example, sexual crimes of a certain gravity committed by a soldier during leave will therefore, result in a violation of his or her states international obligations (in parallel to individual criminal responsibility). In case there is an offence which is not a feature of the state, it will still be attributable to it if the state acknowledges and assumes responsibility for the behaviour in question as its own. A clear example of this would be if the state publicly praise, and gives approval to a violation of IHL, committed by a person or group, which did not initially act under state orders. The conduct of a person, or group of persons, shall be considered an act of a state if she or he is in fact acting on the instructions of, or under the direction or control of another state when carrying out a violation. This point assumes significance when we scrutinize the actions of terrorist groups. More often than not, these groups are known to be under the wing of a state and are funded by it and are provided equipment, etc. to carry out their activities. The justification for the rules on control is to ensure that states do not deliberately avoid accountability by assigning illegal tasks to individuals or any other body, which are not official employees of the state. The main prerequisite for a state to be responsible for non-state actors is the control it exerts over the person who perpetrates the crime. The question then arises as to what act of the state constitutes control. Is the state supposed to have overall control over the group or does it have to concern itself with each and every activity carried out. As there is no specific legal answer to this, the responsibility of the state will have to be tackled on a case-to-case basis. It is also the duty of the state to be attentive and alert to see that suitable actions are taken to stop violations and penalize the wrong-doers. The state is held responsible if due to slackness on its part, violations do occur. In a situation where the state is aware that there is a probability of a violation taking place, and it does nothing to prevent that, it is considered a violation of its international responsibility. If, knowingly, the state turns a blind eye to acts of individual persons, it can be held accountable. The principle of due diligence is however applicable also when private actors acts independently from the state - a state can be held responsible even if the identity of the perpetrators is not known to it. The duty to take due diligence may be seen as falling under the obligation in Common Article 1 of the Geneva Conventions to ensure respect of the Conventions. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 41 Activity 2 "Within the sphere of your own rights, your freedom is absolute."Discuss. Self-Assessment Questions 13. Fill in the blanks with appropriate words: (a) The basic principle of ___________ in international law provides that any state that violates its international obligations must be held accountable for its acts. (b) Particular treaty regimes, such as the General Agreement on Tariffs and Trade and the European Convention on Human Rights, have established their own special rules of __________. 14. State whether the following are true or false: (a) The state is not responsible for the private actions of armed forces. (b) The laws of state responsibility are the principles governing when and how a state is held responsible for a breach of an international obligation. 1.10 Indian Values and Human Rights India is a large multicultural society where a number of faiths, cultures and belief systems coexist. Although the majority of the population consists of Hindus, there are sizeable populations of Muslims, Christians, Sikhs, Jains and Buddhists. Even within Hinduism, there are numerous sects and cults. In addition, different states have different languages and dialects, and there are vast differences in terms of culture and attitudes in different parts of the country. Such a mix of faiths and cultures makes India a perfect example of unity in diversity. However, despite the diversity of religions and culture, there has always been an emphasis on duty and respect in Indian values. Relations were viewed from a moral perspective in terms of mutual obligations within an orderly society. Although the legal codification in terms of human rights applicable to all citizens is a relatively new phenomenon, Indian values have stressed the role of the ruler in protecting his subjects and the importance of living up to ones place in society. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 42 Ahimsa and human rights Ahimsa is a key Indian cultural value that ensures rights by implication and interpretation. The concept of Ahimsa arose out of Buddhist philosophy, which did not believe in divinity. As opposed to the Hindu tradition, it was rooted in a republican mould. It reported of a golden age, which gradually decayed through the institution of private property and social evils. People then elected one from among themselves to rule over them and ensure an orderly society. This concept implies that the ruler is chosen by the people and is not appointed by God with absolute powers. Thus, the emphasis is on sovereignty of the people, which stresses the rights of individuals in society. Ahimsa, which gives every life a right to live, is really a celebration of the sovereignty of the people. Self-Assessment Questions 15. Fill in the blanks with appropriate words: (a) A mix of faiths and cultures makes India a perfect example of unity in _______. (b) The concept of ahimsa emerged out of the ________tradition. 16. State whether the following are true or false: (a) According to Buddhist philosophy, ahimsa, which gives every life a right to live, is a reflection of the belief in the sovereignty of the people. (b) Despite the diversity of religions and culture, there has always been an emphasis on duty and respect in Indian values. 1.11 Emerging Dimensions in Human Rights: Basic Concepts Every day 1.3 million people in India (of which more than80 per cent are Dalit women) are forced to clean human excrement with their bare hands for little to no wages. Known as manual scavenging, the practice violates human dignity and must be eradicated. The present world is witnessing unprecedented scientific, technological and economic development, accompanied by a high degree of emphasis on materialistic satisfaction. The constant thirst for more is leading to greater disparitiesso much so that people are rightly beginning to question if this is Human Rights and Media Unit 1 Sikkim Manipal University Page No. 43 real progress! Many people are still not able to fulfill their basic needs; they are not getting just and equal treatment in the various spheres of life. They suffer due to in unjust wages, malnutrition, poor health services and undemocratic distribution of educational facilities. On an international level, war, use of chemical weapons, terrorism, racism, poverty, ruthless destruction of natural resources and unfair distribution of economic wealth are some of the numerous indignities bestowed on nature and humans. Human rights include civil and political rights. Human rights are based on the following common values: Human dignity Liberty Equality Justice Unity Ethics Morals Dignity Every human being must have the right to live in dignity. It is a gauge to determine the quality and honour of the people, and measure the functioning of human rights. People erroneously measure the dignity of human beings by their economic status. The dignity of human life is a complex phenomenon of which economic status is only a part. It includes investigating their health, the food they eat, their education, liberty, equality, and so on. According to Plato, the concept of justice is an all-encompassing political virtue so that a good society and just society are one and the same. Thinkers Hobbes and Mill propagated that all men are equal by nature. Liberty Liberty is a human right and gives people the right to act, believe, and express themselves the way they want so long as they do not cause physical or psychological injury others; do not damage the environment, and do not violate other peoples liberties and freedom. Liberty allows us to be protected physically and legally, to be free from unjust exploitation, confinement, and forced labour. Did you know? The Statue of Liberty is one of the worlds most enduring symbols of democracy and freedom. The statue was a gift from the French government for the 100th anniversary of Americas Independence. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 44 To have and enjoy liberty, it is essential to be protected and free from any unjust control, or interference from religious or government elected, appointed, or employed officials. Nations who possess a Bill of Rights guarding and protecting the liberty of their citizens must protect it vigilantly. The boundaries of ones liberties are defined by the rules and guidelines of reason, common sense and ethical standards. Liberty is a word with many meanings. Every language in the world has a word for liberty. There are different kinds of liberty: Economic liberty - to follow our own vocation in life Personal liberty - to come and go as we please or to follow our own conscience Political liberty - to vote, participate in, and change our form of government Civil liberty - to enjoy certain unregulated, constitutionally protected freedoms Social and cultural liberty - to choose our own associates and be treated respectfully Equality Equality refers to equality before the law. It can be social, gender and economic. These are explained in the following section Social equality: By social equality we mean that people who live in a society or in a particular group have the same status in certain respects. It refers to equal rights under the law, which include security, voting rights, freedom of speech and assembly, and property rights. It also encompasses notions of economic equity, such as access to education, health care and other social securities. There can be no discrimination in terms of equality on grounds of gender, age, sexual orientation, caste or class, income or property, language, religion, convictions, opinions, health or disability. Gender equality: Gender equality has been defined in terms of human rights, especially womens rights, and economic development. The United Nations International Childrens Fund (UNICEF) defines gender equality as levelling the playing field for girls and women by ensuring that all children have equal opportunity to develop their talents. The United Nations Population Fund avers that women have a right to equality. Gender equity is one of the goals of the United Nations Millennium Project, to end world poverty by 2015. The project claims that every goal is directly related to womens rights, and societies where women are not afforded equal rights as men can never achieve development in a sustainable manner. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 45 The progress towards gender equality, especially in Western countries, began with the suffragette movement of the late nineteenth century. This was followed by a modification in womans property rights in marriage. The 1960s saw a leap in the progress for gender equality with womens liberation and feminism. This led to changes in laws that related to particular issues or to gender discrimination. There is an amendment in the ideas relating to equal opportunity for boys and girls in education. In many countries this has led to changes in social views, including equal pay for equal work, and equal opportunity of employment for men and women. Many countries now permit women to serve in the armed forces, the police force and in the fire-fighting service. Evidently, an increasing number of women are active in politics today and occupy high positions in business. On the other hand, men are taking on jobs that were regarded as bastions for women such as nursing. On the home front, men are increasingly accepting their responsibilities of child-rearing, which has so far been labeled as exclusively mothers domain. We come across many women today who do not hesitate in holding on to their maiden surnames after marriage and those who feel free to pursue their careers after marriage. This however is not true of all societies and can prominently be seen in the West. The movement towards greater gender equality will lead to greater economic prosperity. A 2008 United Nations-sponsored report cautioned countries in the Arab world that deny equal opportunity to women that this disempowerment was hampering these nations in their efforts to reach the first rank of global leaders in commerce, learning and culture. Economic equality: Every person should have equal opportunity to work. They should have a chance to do work of any kind and not be discriminated on grounds of sex, religion, caste and creed. Economic equality includes the following aspects: Equal opportunity Equal pay for equal work Hygienic and healthy working conditions Fair opportunities for further progress Article 16 of the Constitution of India grants equal opportunity in employment. It is a Fundamental Right. Article 39(d) provides for equal pay for equal work. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 46 Justice Justice is different from benevolence, charity, mercy, generosity or compassion. In numerous cultures, justice is linked with fate, reincarnation or divine providence. The law provides that justice means providing maximum welfare to all individuals. Justice requires that some people should give up a little of what they have for others, so long as everyones good is taken impartially into account. In the field of human rights it is related to the idea of providing equality before the law. Everyone must be equal before the law. They should be able to get justice through the legal system when required. Article 32 of the Constitution of India provides this as a Fundamental Right. Unity in Diversity Regrettably, the world today is facing a political and social climate that is marred by differences, disunity and destruction instead of unity and productive and constructive energy that is needed to sustain human societies. These negative forces have widened the gap between people and created disagreeable attitudes towards each other. Unity in diversity suggests unity in spite of diversity. It is only when people live harmoniously with the natural environment that they can tackle ongoing difficulties with each other as well. It presupposes social trust among people. Unity in diversity includes biodiversity and cultural diversity. Biodiversity: Biodiversity refers to the variation of life forms in an ecosystem, biome or on the entire earth. The ecological context of the concept is based on the knowledge that biological diversity is vital for the healthy existence of ecosystems. Biodiversity is often a gauge of the health of biological systems, and loss of biodiversity is an indicator of damage to an ecosystem. The survival of life on the planet is dependent on diversity of ecosystems. Today, global biodiversity is under threat from various forces such as loss of habitat due to developmental activities, poaching, and clash between man and nature. A number of species of plants and animals are being destroyed through acts such as burning of rainforests to make more arable land available. In some cases, environments are so sensitive that even minor changes result in unforeseen consequences such as extinction of some species. Cultural diversity: Cultural diversity refers to the variety of human societies or cultures in a specific region, or in the world as a whole. Intermingling of cultures allows people to learn more about each other, thus increasing awareness and understanding of the diversity within the human community. The greater the cultural diversity, the stronger are the attachments to ethnic roots. According to the United Nations, cultural diversity can only thrive where freedoms and human rights are safeguarded. These include freedom of expression, information and Human Rights and Media Unit 1 Sikkim Manipal University Page No. 47 communication, freedom from discrimination of any kind, as well as the ability of individuals to choose cultural expressions, and their right to participate or not to participate in the cultural life of given communities. Self-Assessment Questions 17. Fill in the blanks with appropriate words: (a) The ________of a human being is an essential concept in society because through it the quality and honour of the people can be determined. (b) In numerous cultures, ________has traditionally been associated with fate, reincarnation or divine providence. 18. State whether the following are true or false: (a) In India, the Constitution of India under Article 15(3) and 16(4) provides for the upliftment of women in the country through reservation in education. (b) Promoting gender equality does not affect economic prosperity. 1.12 Summary Let us recapitulate the important concepts discussed in the unit: Human rights are defined as the basic rights and freedoms that all people are entitled to, regardless of nationality, sex, national or ethnic origin, race, religion, language, or other status. All individuals have a strong set of beliefs that they consider to be right or wrong. These are known as values. These values form the basis of our attitude, behaviour and actions. Human rights are based on the common values of human dignity, liberty, equality, justice, unity, ethics and morals Human rights education refers to the teaching of human rights, including its history, theory, and law, in schools and educational institutions, as well as awareness generation among the general public. The United Nations has initiated and encouraged human rights awareness campaigns in order to promote particular human rights issues. The Human Rights and Media Unit 1 Sikkim Manipal University Page No. 48 activities carried out during these campaigns include the development of publications, studies and programmes with the involvement of United Nations bodies, States, other international, regional and local organizations and civil society The Charter of the United Nations is essentially the organizations founding document. It guides everything the organization does, setting out its aims and objectives, along with the rights and obligations of member states. It also establishes the organs and procedures of the United Nations. The International Bill of Human Rights consists of the Universal Declaration of Human Rights (adopted in 1948), the International Covenant on Civil and Political Rights (1966) with its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights (1966). Following the Second World War and the indignities of the Holocaust, the Universal Declaration of Human Rights was adopted by the United Nations General Assembly in Paris, in 1948. The laws of state responsibility are the principles governing when and how a state is held responsible for a breach of an international obligation. Ahimsa, which gives every life a right to live, is a reflection of the belief in the sovereignty of the people. It is an Indian cultural value that ensures rights by implication and interpretation. 1.13 Glossary Political doctrine: A policy, position or principle advocated, taught or put into effect concerning the acquisition and exercise of the power to govern or administrate in society Bourgeois society: Middle class Autocratic: Characteristic of an absolute ruler or absolute rule; having absolute sovereignty Vigilance: the process of paying close and continuous attention Occupied territory: Territory under the authority and effective control of a belligerent armed force Equality: The state of being equal, esp. in status, rights, and opportunities Human Rights and Media Unit 1 Sikkim Manipal University Page No. 49 Ethics: The moral factors that guide human conduct in a particular society or practice Human rights education: The teaching of human rights, including its history, theory, and law, in schools and educational institutions, as well as awareness generation among the general public Human rights: Basic rights and freedoms that all people are entitled to, regardless of nationality, sex, national or ethnic origin, race, religion, language, or other status Liberty: The state of being free within society from oppressive restrictions imposedby authority on ones way of life. Morality: The social norms and values that guide the interaction among individuals, their fellow human beings, communities, and the environment. Duty: An act or a course of action that is required of one by position, social custom, law, or religion. Inalienable: Incapable of being alienated, surrendered, or transferred to another; not alienable; as, in inalienable birthright Duty: An act or a course of action that is required of one by position, social custom, law, or religion. Inalienable: Incapable of being alienated, surrendered, or transferred to another; not alienable; as, in inalienable birthright. Indigenous people: Ethnic groups who are native to a land or region, especially before the arrival and intrusion of a foreign and possibly dominating culture. They are a group of people whose members share a cultural identity that has been shaped by their geographical region. Right: Moral principle defining and sanctioning a mans freedom of action in a social context 1.14 Terminal Questions 1. Explain the theory of natural right. 2. Explain religion and natural law as sources of human rights. 3. What are the characteristics of human rights? 4. Elaborate the concept of duty in the Indian Constitution. Human Rights and Media Unit 1 Sikkim Manipal University Page No. 50 5. Discuss liberty as a human right. 6. How is the problem of gender equality being tackled in todays world? 1.15 Answers Answers to Self-Assessment Questions 1. (a) Paine; (b) Hugo Grotius 2. (a) True; (b) False 3. (a) John Locke; (b) Universal Declaration of Human Rights 4. (a) True; (b) True 5. (a) Group; (b) Magna Carta 6. (a) True; (b) False 7. (a) Moral (b) Positive; negative 8. (a) True; (b) True 9. (a) 24 October; (b) World War I 10. (a) True; (b) False 11. (a) Born free; (b) Yalta Conference 12. (a) True; (b) False 13. (a) State responsibility; (b) Responsibility 14. (a) False; (b) True 15. (a) Diversity; (b) Buddhist 16. (a) True; (b) True 17. (a) Dignity; (b) Justice 18. (a) True; (b) False Answers to Terminal Questions 1. Refer to Section 1.2 2. Refer to Section 1.3 3. Refer to Section 1.4 Human Rights and Media Unit 1 Sikkim Manipal University Page No. 51 4. Refer to Section 1.5.1 5. Refer to Section 1.11 6. Refer to Section 1.11 1.16 Further Reading 1. De Schutter, Olivier. International Human Rights Law: Cases, Materials, Commentary. New York: Cambridge University Press, 2010. 2. Meckled-Garca, Saladin, Cali, Basak. The Legalization of Human Rights: Multidisciplinary perspectives on human rights and human rights law. New York: Routledge, 2006. 3. Ishay, Micheline. The History of Human Rights: From Ancient Times to the Globalization Era. Los Angeles: University of California Press, 2004. References Grotius, Hugo. On theLawsof War and Peace. Montana: Kessinger Publishing. Hans Reiss (ed.),Kant: Political Writings. Cambridge: Cambridge University Press. Bentham, Jeremy. Anarchical Fallacies in The Works of Jeremy Bentham, Volume 2. New York: W. Tait. Paine, Thomas. The Rights of Man. Bristol : Jordan Publishing. Locke, John. Two Treatises of Government, Chapter 7, Section 87-89.London: J. Whiston. The Ayan Rand Letter.A Nations Unity. New York: Plume. United Nations Universal Declaration of Human Rights Unit 2 Principles and Theories of Human Rights Structure 2.1 Introduction Objectives 2.2 Evolution of the Human Rights Concept 2.3 Approaches to Human Rights 2.4 Theories and Principles 2.5 A Humanist Alternative 2.6 The Theoretical Foundation of Human Rights 2.7 Internationalization of Human Rights 2.8 Critical Theories of Law 2.9 Summary 2.10 Glossary 2.11 Terminal Questions 2.12 Answers 2.13 Further Reading 2.1 Introduction The concept of human rights is significant in the development of countries and their citizens. Human rights are interdependent in nature as all human beings are a part of a larger framework. Human rights in layman terms can be understood as being inalienable rights of an individual who is entitled to these rights for the simple reason that he or she is a human being. In order to understand the concept of human rights it is imperative to understand its origin and evolution along with the different theories which evolved with respect to human rights over a period of time. Objectives After studying this unit, you should be able to: Recall the evolution of the human right concept Describe the approaches to human rights Interpret the theories and principles of human rights Recognize the role of religion and morality in human rights Identify the humanist alternative in human rights Human Rights and Media Unit 2 Sikkim Manipal University Page No. 54 2.2 Evolution of the Human Rights Concept In the course of human history, human rights are regarded as an evolving phenomenon. Throughout the ages it has been observed that the concept of human rights has been sophisticatedly linked to laws, customs and religion. This complex amalgamation is considered key to mankind. In history, the very first example of the codification of laws with respect to individual rights is seen in the Code of Hammurabi, which came into existence four thousand years ago. The sixth Babylonian king Hammurabi enacted the code which comprised of 282 laws. These laws were considered a model for the legal system and protected people from arbitrary punishment and persecution. However, underlying flaws in the code have come to the notice of some historians who believe that the problems in Hammurabis code are due to its cause and effect nature and that it had no provision for subjects of that were relevant to human rights such as race, religion, beliefs. The concept of human rights gained a more meaningful existence during the ancient Greek period. It was seen that human rights gained a substantial position in the legal process rather than the usual practice of preventing arbitrary persecution. The Greek philosophers Socrates and Plato defined natural law as a law that reflected the natural order of the universe and most importantly the will of gods who controlled nature. This thought has been beautifully described in Greek literature in the episode where Creon reproaches Antigone for defying his command to not bury her dead brother and she replies that she acted under the laws of gods. The natural rights of a person were respected in ancient Rome and the Roman jurist Ulpian believed that every person had his own natural rights irrespective of whether he was a Roman citizen or not. However, the natural rights of those days greatly differed from what we call as human rights now. The practice of having slaves is a classic example. In the ancient days, it was perfectly legal but it is an offence under the eyes of the law today. It would be an outright violation of the right of freedom and equality of an individual.History also witnesses more emphasis on individuals during the middle ages and later during Renaissance, a period which saw the decline of powers vested in the church. During the course of history, we find that there was a gradual lax in the fierce control exhibited by the church which actually resulted in a shift from the existing feudal or monarchic social setup. This has led to the emergence of the individual and we find that individual expressions began to thrive in the society Human Rights and Media Unit 2 Sikkim Manipal University Page No. 55 The idea of positive law gave birth to the next fundamental philosophy of human rights. Thomas Hobbes, an English philosopher known for his political thought viewed natural law as to not only being vague and hollow, but being available to different interpretations. Hence, under positive law, human rights can be given, taken away and modified according to the need and requirement of the society. Jeremy Bentham, who was a leading theorist in Anglo-American philosophy of law, aptly sums up the nature of positive laws: Right is a child of law; from real laws come real rights, but from imaginary law, from laws of nature, come imaginary rights.Natural rights is simple nonsense. The transfer of human rights into positive rights with these rights becoming concrete laws is best described in different legal documents which discuss these rights in great detail. To name a few of these exemplary documents which mention positive rights are the British Magna Carta, 1215; French Declaration of the Rights of Man, 1789; American Bill of Rights, 1789; and The Geneva Convention, 1864. Many erudite scholars of human rights gave their views on the notion and understanding of human rights, which have been mentioned below. Plato believes in the concept of universal truth and virtue. According to him human rights are universal and therefore are above the laws of individual state. Aristotle was of the view that different social classes existed in the world vis--vis accepting the fact that an underclass or slave class will always prevail and thus considered this perfectly normal. In simpler terms suggesting that self preservation required fundamental human rights. Positive law opines that the idea of law and human rights come from the state. The positive law theorists believed that the formulation of strong laws was essential for the protection of human rights. But they differed from previous viewpoints in one significant aspect. It was accepted that positive law can be given or taken away by the state and hence, there was no universality associated with it. The consecutive changes in positive law were made to accommodate the fact that the constitution is the legal structure for functioning of the society and the states laws were derived from it. As the constitution could only originate from natural law, the natural right of self preservation was obviously embodied in the constitution and thus, the states power cannot negate the inalienable human rights. This, therefore, further suggested that the state should safeguard individuals from the actions of others which may hamper their freedoms. This Human Rights and Media Unit 2 Sikkim Manipal University Page No. 56 also speaks about citizens empowerment and their right to revolt if they felt that the state was abusing its power. The ideas behind the French and American Revolutions were influenced by this and subsequently led to the development of their new nations. The social contract theory designed by Rousseau stated that all individuals in a society and entered into a contract to form a civilized society in exchange of equality from the government. In the opinion of Kant, each individual should be aware of other peoples freedom and should not infringe on the freedom of others. Every individuals action should be conducive to the social setup at large and should be in a pattern to accommodate the rights of everybody else. However, Mill was strongly opposed to such utilitarian concepts and in his view all this was just another form of tyranny by the majority. These rights are viewed in an entirely different context by Marks and Engels, the Fathers of Communism. According to them, these rights were totally unconnected to the grim realities in exploitation of the working class. Marx values the institution of government in the optimum distribution of liberalism among its people and therefore should not be regarded as interference. When it comes to ownership of private property, equality is deemed more significant than liberty. However, revolution is the only fundamental right that exists under their system. Benthams rejection of natural rights has been disregarded by Dworkins philosophy specifies that human rights are a creation of politics which try to treat people with equality. It is therefore not absolute and universal in nature. As per Dworkins philosophy all members of society have the same rights irrespective of their social status and utilitarianism ignores the rights of minorities under the doctrine of greatest good which is considered a threat to individual human rights. Human rights, specifically those that relate to individual liberty and equality had very compassionate support from Rawls and he maintained that these rights should be for all. In his view, the state should distribute everything equally to all the people and unequal distribution should be accepted only if and when it would be of benefit to the economically lower classes. He also emphasizes that fair human rights can only be formulated by a group of reasonable people living amicably in society. Since these western industrialized principles may not be appropriate anywhere else, they seem to be influenced by cultural relativism. In layman terms, human rights can be defined as freedoms and rights of individuals in society. Human rights are a set of written laws which confirm an individuals freedom and the boundaries pertaining to it. The concept of written Human Rights and Media Unit 2 Sikkim Manipal University Page No. 57 laws has been seen since times immemorial. In the
sixth century BC, Cyrus the Great of Persia issued the Cyrus Cylinder that took up the causes like freedom from slavery, freedom of religion etc. after the conquest of Babylon. That was the first instance of a set of laws written for the sake of human rights. The signing of the Magna Carta was a major milestone in the history of human rights and it was the turning point in the western world as far as the human rights are concerned. It was in the Magna Carta, a reigning English monarch King John accepted to set the rights of the people into the law of the land. Here, it is important to realize that human rights is a relatively modern concept and its major forerunner was the discourse of natural rights in different societies of the ancient world. Some philosophers opine that Natural Rights may be a more correct terminology instead of Human rights as it would cover all livings things and not just human beings. In spite of this, human rights are considered a major civilizing cornerstone in the 20 th century. The Declaration of the Rights of Man and of Citizen was a significant document that defined the individual and collective rights of a person. This particular outcome of the French Revolution originated from the Age of Enlightenment of the 18 th century which spread from Europe to the entire world. The one bleak flaw in this document is that it does not mention or define the status of slaves and women The United Nations came into existence after the Second World War and its main task was to establish rights for all individuals, irrespective of the fact as to where they lived. This led to the documentation of the Universal Declaration of Human Right (UDHR). The United Nations General Assembly adopted UDHR in the 1948 and it was headed by Eleanor Roosevelt. The UDHR was drafted after consultations with great philosophers of that time including Mahatma Gandhi and was accommodative of the social, cultural, economical, civil and political rights. It also needs to be understood that the UDHR was not a law and no nation was legally bound to follow these rights, although, many nations have signed treaties agreeing with the principles of UDHR. History has witnessed laws being formulated through demands made by the rights movement. The International Covenant on Civil and Political Rights was adopted in 1966 along with its two optional protocols apart from the UDHR by the United Nations and this made a significant impact on the International Bill of Human Rights that followed. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 58 There are many organizations that lend their voice to the advancement of human rights. In many countries, human rights laws are enacted in some form or the other. There are many issues relating to human rights which need to be addressed due to the ever increasing population of the world which make things complex. Looking back at history it can be said that much has been achieved in terms of human rights, however there is still much more to conquer. Article 4 of the Declaration of the Rights of Man has been approved by the National Assembly of France, August 26, 1789 and states the following, Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law. The seventeen articles in this document could easily be construed as an elaboration of the oft-quoted statement from the American Declaration of Independence of July 4th, 1776 We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the pursuit of Happiness. The IICPR as well as the International Human Rights Bill emulate the Golden Rule which emphasizes that individuals hold the right to do as they please as long as the rights of other individuals are not obstructed. Though any attempt to identify its origin would be futile as it is a very ancient piece of wisdom, the rule which states do unto others as you would have them do unto you makes a lot of sense in everyday life. As all the basic human rights are inherent and inalienable, instead of tracing the evolution of human rights, it would be useful if their evolution in terms of their application in the legal context as rule of law and government was traced. One of the first philosophers to have coined the term Civil Disobedience would be Henry David Thoreau. He was in favour of non-violent resistance against the government in order to fight for their rights as individuals thus coercing the government to comply by the Golden Rule. The roots of religion strictly lay in the philosophy of righteous human behaviour. As an institution, religion first seeks to instruct individuals to have mutual respect for human dignity and keeping social conduct within boundaries of universally accepted moral behaviour. These policies are considered essential attributes of people. Irrespective of ones religion, all religions suggest that all individuals are entitled to respect and dignity. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 59 There are numerous examples of human rights abuses in history which are the product of a corrupt and autocratic authority. In European history, in a time when kings and queens ruled, it would not be incorrect to conjecture that that rights of the peasant classes were restricted because of the extortion and exploitation they experienced. The serf classes were expected to serve in armies and provide taxes. Against this, the American Declaration of Independence was deemed a history-making document, for it contained the basic doctrines of an independent state which promotes the rights of an individual and rejects the feudal nature of government. It can be rightly said that the seeds of modern struggle to uphold human rights lay in the American Declaration of Independence. In contemporary times, a document was constructed which emphasized on the upholding and enforcing of human rights. This document was drawn by the founding members of United Nations in 1945 and was titled Universal Declaration of Human Rights. Articles 18 and 19 of this document outline the individuals right to freedom of thought, conscious, and religion and the freedom of expression of opinions and ideas in great detail. The process of evolution is not instant and therefore the concept of human rights evolved over a period of time. It has to be understood that human rights is not something people are born into, it is something that they grow into. Therefore, every civilized societies, should be constantly reminded about concerns regarding how to raise children, how to live in a society, morality, choice and consequences. The evolution of human rights is a continuous process and should be an ideal for all those who are evolved and continue to evolve. The evolved should be responsible enough to remind those who have been left behind. But how does one do that if they know by simple contact, a large population of the tribe may get killed? However, a mind which does not question or journey into the unknown will not be one which evolves on its own. Therefore, in order for evolution to take place, it needs to be enforced. Humanity is considered to be a gradual process evolving from the mind. This is the reason a constitution was written and taught from generation to generation. Hence, human rights are the product of evolution and the origins of human rights is a product of conscience reminded constantly by the supreme law of the state. Human rights have flourished in European society at least since King Johns time. As King John violated ancient laws and customs which were traditionally Human Rights and Media Unit 2 Sikkim Manipal University Page No. 60 followed in Englands governance, he was forced by his subjects to sign the Magna Carta or the Great Charter. A number of laws which were defined in the Great Charter later became the tenets of human rights. The great charter required the state authority to refrain from controlling or interfering with the activities of the Church. It freed the citizens from excessive taxes and established the rights of free citizens with reference to owning and inheriting properties. The rights of women, especially the rights of widows who choose not to remarry and to own property were clearly defined. Bribery and official misconduct were forbidden with specific provisions for legal actions were designed. This charter thus tried to establish the principles of due process and ensured that there was equality before the law. This period in history also witnessed different political and religious traditions question state on human rights and become self-proclaimed spokesperson who called upon the state officials to rule justly and compassionately. The delineation of the limits of ones control over the lives, properties and activities of their people was elaborated by the so called spokespersons of human rights along with all these aspects of human rights. The concept of natural rights was propounded by various European philosophers during the eighteenth and nineteenth centuries and these rights were not connected to the citizenship of the individual or his membership in any religious or ethnic group. An individual was entitled to these natural rights by nature by virtue of being a human. Nevertheless, some philosophers continued to hold the view that the underlying principle of individual rights as well as political and religious freedom actually is the concept of natural rights. The major revolutions in the history of the world relied on this concept. The two major revolutions in late 1700s American (1776) and French (1789) resulted in U.S. Declaration of Independence (where most British colonies in North America proclaimed their independence from the British rule). The American and French revolutions resulted in a general disfavor for the natural rights and saw the emergence of the universal rights. These two revolutions led many to disfavour natural rights. However, this period also saw the advent of universal rights. The ideals behind the concept of universal rights were discussed by many philosophers including Thomas Paine, John Stuart Mill and Henry David Thoreau in depth. We find that Thoreau as one of the first to use Human rights as a term and it has been mentioned in his treatise on Civil Disobedience. Leo Tolstoy, Mahatma Gandhi and Martin Luther King were greatly influenced by his works and it was a marked influence in the Human Rights and Media Unit 2 Sikkim Manipal University Page No. 61 latter two in particular. They developed the concept of non-violent resistance against unethical government actions and continued to succeed in their struggles. Human rights do find a mention in the works of the English philosopher John Stuart Mill (Essay on Liberty) and of the American political theorist Thomas Paine (Rights of Man). Quite a number of issues that came into the limelight in the mid-19 th century developed into bigger human rights issues with a mass following in the late 20 th century. Slavery, serfdom,brutal work conditions, starvation, wages, child labour are a few of the major issues that gained focus in this period. America abolishing slavery and Russia releasing serfs were the major highlights of this period. However neither the American slaves nor the Russian serfs had immediate access to their basic rights or any degree of freedom. They had to wait for many decades for all that to happen. The human rights activitism was found to be largely associated with the religious beliefs and political groups of the times in the late 19 th and early 20 th century. Very often revolutionaries were found accusing the state and propagating human rights as the essential factor to bring about social change. They firmly stated that their ideology was necessary to put an end to government atrocities. The disgust with the state operations is considered one of the main reasons as to why people got involved with revolutionaries in the first place. 17.To all such allegations, the government responded with equally strong accusations and insisted that a stern approach towards descent was necessary. The government pointed at the bombings, strike related violence and growth in violent crime and social disorder as the reasons for its stand. This led to a situation where there was no credibility between the two groups, i.e., state and revolutionaries, nor did these two groups have any credibility with the neutral citizens of the state. This may be due to the fact that the concerns raised by both the groups were political and not humanitarian in nature. Therefore, political protest often encouraged more oppression and neutral citizens who got caught in between the two groups cursed both sides and made no attempt to listen to either one of them. Even though there were several such dampening incidents, remarkable social changes did happen during this period due to the fiery emergence of civil rights and human rights movements. The labour unions made possible hitherto unheard of phenomena like the right to strike, establishment of minimum working conditions, prohibition of child labour, forty hour work weeks in Europe and America. There was a marked improvement in the position of women in the Human Rights and Media Unit 2 Sikkim Manipal University Page No. 62 society in this phase. With the efforts of womens rights movement, this period saw women get the right to vote. Many countries under colonial powers succeeded in getting freedom through national liberation movements in their countries. The best example of this is evident in Mahatma Gandhis movement to free India from the British rule. This period is also witness to different movements which assisted in the emancipation of long-oppressed racial and religious minorities, for instance the U.S. Civil Rights movement. Appeal for Amnesty, 1961 The formation of Appeal for Amnesty in 1961 is of great significance in the history of human rights as its effect was felt worldwide. 17. Two Portuguese students raised their glasses in a toast to freedom and were sentences to twenty years for that crime in 1961. This led to the formation of Appeal for Amnesty through the action of a group that included people from different walks of life - lawyers, journalists, political writers and many others. They announced this appeal for amnesty in the London Observer (Sunday supplement) on the 28 th of May 1961. The stories of six such prisoners called Prisoners of Conscience were carried in that appeal. They were from different countries and were imprisoned for peaceful expressions of their respective religious beliefs and political thoughts. The Appeal was addressed to the governments worldwide to free such prisoners and this initiative has continued to make impartial and non-partisan appeals on behalf of people who had been imprisoned for peaceful expression of their views. There was an astonishing reaction to this appeal and what was started as an one-year appeal got extended beyond the year paving the way for Amnesty International and the Human rights movement. The modern human rights movement had no new principles but was based on a complete rejection of any political ideology or partisan attitude. It put forth a demand to all the governments in the world that they adhere to the basic human rights principles in the treatment meted out to their people. The journey of modern human rights movements in its early phases was quite uncertain. Appeal for Amnesty, 1961 was considered a very basic and rudimentary form of organization. The activities of the staff members were focused on keeping even minute details in their mind and ensuring no wastage of financial resources. This strict financial accountability became an established trait in the following years. As initially the staff members got into partisan politics when they followed human rights violations in their respective countries, the Amnesty International members were prevented from working on cases in their Human Rights and Media Unit 2 Sikkim Manipal University Page No. 63 own country. Though this ensured that the non partisan ideology was safeguarded, the members were misinformed about prisoners and many early campaigns failed. This was later rectified with the establishment of a research team and prisoners of conscience were adopted by the organization only after thorough investigations. This was viewed as a very restrictive way of functioning by many people. Because of his violent struggle against apartheid, Nelson Mandela was dropped from the list of adopted prisoners by Amnesty International to the displeasure of most pro-democracy activists. It also created displeasure when it did not take up a fight against abusive governments that had little regard for basic human rights. The general opinion was that a better job in a broader spectrum of activities would have been befitting an organization of this stature. With the passage of time, the initial human rights concerns metamorphosed into numerous human rights groups. Regional human rights groups had extremely difficult operating conditions especially in the Soviet Union. Helsinki Watch was initiated by a few Russian activitists who were monitoring Soviet Unions compliance with Helsinki human right accords with respect to human rights. Many members were arrested soon after it was started and had no chances to operate actively. And many such groups including the Helsinki Watch merged to form the Human Rights Watch in 1978. There was a sudden burst in the formation of regional groups that resulted from military takeovers in Chile (1973), East Timor (1975), Argentina (1976) and the Chinese Democracy Wall Movement (1979). Though these regional groups differed widely in their philosophy, tactics and focus, at least for the most part, they did remain in talking terms. The unique feature about these regional groups was that one human rights activist could be a member of more than one group. It was only during the 1970s that human rights movement came to be recognized and a growth in the number of human rights movement was seen. Around the same time Amnesty International gained permanent observer status as an NGO at United Nations. It became mandatory for countries to recognize the reports issued by Amnesty. Their press releases received a lot of positive attention despite their recommendations being ignored by some governments. In the year 1977, Amnesty International was awarded the Nobel Peace Prize for its work. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 64 Exhibit 2.1 Was killing Osama bin Laden legal? 5-5-2011 By Gabor Rona International Legal Advisor He was an evil mass-murderer. Does it matter how it went down? Absolutely. It matters to one of the fundamental humanitarian principles of the laws of armed conflict: if they are hors de combat, or outside the fight, then targeting even military objectives is a war crime. So first, was bin Laden a military objective? Assuming one accepts the idea that the United States is at war with al Qaeda, yes. In war, persons who directly participate in hostilities or who perform a continuous combat function in an armed group are targetable, and bin Laden certainly was the latter, if not the former. But what about hors de combat? Heres what Protocol I to the Geneva Conventions says: A person is hors de combat if: (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape. The first reports had it that bin Laden was armed and put up resistance by using a woman as a human shield. Subsequent reports said wrong, not armed, no human shield. Does that render him hors de combat? No. It does not amount to either (a) or (b) or (c), above. Some law of war theorists claim that a person who poses no evident threat is also hors de combat. (To keep my students interested, I call it the naked soldier hypothetical). But unless and until that idea finds its way into the Geneva Conventions or into the practice of a substantial portion of the worlds militaries acting out of a sense of legal obligation, it will not be the law. What about the fact that he was an evil terrorist with the blood of thousands on his hands? If he was hors de combat that would be a matter for judge and jury to sort out, not Navy Seals. And thats exactly as it should be because killing in war is not for the purpose of implementing justice. Its for the purpose Human Rights and Media Unit 2 Sikkim Manipal University Page No. 65 of neutralizing the enemy. I wont argue with President Obamas conclusion that justice was done, but I do think that term is more appropriate for what comes from a (legitimate) court of law than the end of a gun. But what if you reject the war against al Qaeda paradigm? In that event, human rights law, rather than the laws of war would be your guide. And human rights law prohibits arbitrary deprivation of the right to life. While the legality of lethal force is a closer question outside of armed conflict than in it, the totality of circumstances make it difficult to claim that the killing was arbitrary, even if bin Laden was not actively resisting or fleeing. All in all, probably a legal kill assuming the official version is true. Update: The Obama Administration articulated the right standard and analysis to this case when White House Spokesman Jay Carney said, The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. Carney also stated that (t)he operation was planned so that the team was prepared and had the means to take bin Laden into custody. (Source: http://www.humanrightsfirst.org/2011/05/05/was-killing-osama-bin-laden-legal/ accessed on 26 December 2011) Activity 1 Analyze the case of the three U.S. hikers who tried to cross the Iranian border and trace the efforts taken by American government to free them. Self-Assessment Questions 1. Fill in the blanks with appropriate words: (a) After he conquered ________, Cyrus issued forth the Cyrus Cylinder which took up the freedoms of slavery, religion and other issues. (b) _________ was a black South African anti-apartheid activist 2. State whether the following statements are true or false: (a) In 1989, the people of France overthrew their monarchy and established the first French Republic. (b) In 1977, Amnesty International was awarded the Nobel Peace prize for its work. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 66 2.3 Approaches to Human Rights Human rights are a vast subject and many great philosophers and political thinkers have given their views regarding their understanding. On the basis of their views, the study of human rights has been broadly divided into five groups or approaches. They are as follows: 1. Natural Law Approach 2. Historical Approach 3. Positivist Approach 4. Marxist Approach 5. Social Science Approach The natural law approach According to the beliefs of the Natural Law proponents, the natural law is of a higher stature than that of the positive law (created by man) and the latter must conform to the former. Though this theory is based on equality, none of its claims can be either confirmed or rejected because it is usually based on the revelation of divine will, transcendental cognition and participation in natural reason The historical approach When we use a historical approach, human rights is often treated as a component function of culture and environment inclusive of factors like time and space. Though it is valid to employ a historical approach, it comes with its own drawbacks. This approach fails to consider the individual as a separate entity and he or she is always viewed as a part of the community. And we do find that there is an exaggerated importance given to language, religion etc. It is bereft of peoples viewpoint. Lastly, it differentaites between societies, which totally disregard the universal nature of human rights. The positivist approach The positivist approach is very pro-state as this approach sees laws enacted by state who have coercive powers within its territory. The drawback of this approach is that laws are enacted by the will of state and not by the will of the people. However, some philosophers and political thinkers are of the opinion that obedience could be easily obtained if sanctions came from laws based on the values of society rather than coercion. Positivists give more emphasis on state and not its citizens when it comes to international law therefore making a number of instruments which are available today ineffective. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 67 The marxist approach From the point of view of a Marxist, human rights just do not exist in the capitalistic societies. It is only in a classless society, which is characterized by public ownership of the means of production, human rights come into existence. The social science approach The social science approach, for assessing the success or failure of human rights, relies on various techniques and models including empirical and scientific methods. This approach views human rights from the perspectives of the social processes and stands by the communities role in shaping principles. And in this context, the failure to define a clear link between social processes and the state laws remains a major drawback for the social science approach. However, human rights do remain at the base of the stability and development of all countries in the world. Major emphasis is given to the international conventions of human rights to ensure a universal standard of acceptability. With new technologies and globalization taking place on a large scale, these principles gained significance not only in safeguarding individuals from ill-effects of change but by also ensuring that each person is allowed a share in the benefits reaped by this change. These changes have impacted the world with regards to human rights as well. These changes have proved to be both advantageous and disadvantageous to human rights. For instance, the developments in science and technology may impose certain risks on mankind which could hamper the implementation of human rights. Human rights have to be assimilated into the ethical codes for all the professions to ensure that human dignity is protected in all possible circumstances. The numerous technologies that emerge in the field of biotechnology and medicine are sufficient reasons for this to happen. If we consider organ transplantation for an example, there are a number of issues that spring from it such as issue of consent to donate, prevention of premature harvesting by a proper definition of death and of course, the most significant being an equal chance at transplantation. On the other hand, researches in genetic engineering may bring the dangers of gene mutation and cloning. The convention for the protection of human rights and dignity of the human being with regard to the application and medicine was organized to deal with such problems and it puts the welfare of the individual above that of the science or society. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 68 The need for and the ability to propose and enforce such mechanisms are important. These have been mocked at by conspicuous human rights violations and disregard of human dignity in many countries and these continue to happen at different points in various forms and levels. Most cases of this type do not result in prosecution of the accused (of human rights violations) as there are political situations and power equations to be considered. Letting such violations going unchecked may increase the number of violations as the perpetrators feel they can enjoy immunity from punishment. Self-Assessment Questions 3. Fill in the blanks with appropriate words: (a) The main disadvantage of the _______ Approach is that laws would not stem from the will of the people but from that of the sovereign. (b) By focusi ng on the di fferences between soci eti es, the __________approach undermines the universality of human rights. 4. State whether the following statements are true or false (a) In the field of biotechnology and medicine especially there is strong need for human rights (b) The Marxist approach posits that in a capitalist society, human beings are of prime importance. 2.4 Theories and Principles Human rights are a vast subject and in order to understand the fine nuances of this doctrine, it becomes essential to understand the principles it is based on. Some of the basic beliefs which influence human rights have been discussed below. Humanism and morality The streamlining and defining of non-religious rules with reference to ethics and morality would be a daunting task and a point of concern for both humanists and atheists. Few people interpret that individuals without religious faith also lack in ethics and morality. This has made humanists responsible to word their statements about their beliefs and ideologies in such a way that they support human rights, democracy, liberty etc, along with a need to provide an alternative Human Rights and Media Unit 2 Sikkim Manipal University Page No. 69 to religion. The International Humanist and Ethical Unions resolution is considered as the most authoritative statement in this regard. This effectively deals with humanist principles as per the guidelines listed in the American Associations Humanist Manifesto III (2003). The fundamental tenets of these statements are actually a result of the need to project these as an alternate to religious beliefs in order to encourage and support moral decision making among people. When there is an effective set of clear and concise guidelines for universal ethical values, it would be of use to humanists as well as to the entire humanity. Suggestions on the possible ways to do this would be beneficial. These statements draw guidelines based on published humanist values and also relevant inputs from everyday moral and ethical philosophies. Moral theory and principles The common sense morality is a very familiar concept and is actually based on common sense guides to human behaviour. These are generally basic etiquettes involving different aspects of everyday philosophy such as - do your best; be fair to others; keep your promises; treat others like you would like to be treated by others. Along with these there are certain facets that are generally associated with a fee good factor like happiness, honesty, justice, charity, courage, integrity, community, love, knowledge and freedom. These ideals generally function free from religion and are widely accepted and appreciated by all religions. We find that most people are no strangers to these traits and these ideals are basically dependent on the concept of common sense morality. But these may be become insufficient when we face complex situations. A major chunk of these ideals have been taken by philosophers in order to develop moral theories which help guide the behavioural pattern in society. Popular theories have been formulated based on the ethical standards and moral principles by the philosophers and the Divine Command theory, Utilitarianism theory and Natural Rights theory are prominent among them. The Divine Command Theory is based mostly on religious texts and is asserts to be based on Gods commands. The notion of maximizing happiness for all individuals forms the basis of utilitarian theory and moves towards the greatest good for the greatest number which is supposed to be the guiding tenet for morality. According to the Natural Rights theory, all human beings have their natural rights like right to life, liberty and property. These rights should be withdrawn only when the rights of fellow individuals are violated. Though it has been often Human Rights and Media Unit 2 Sikkim Manipal University Page No. 70 assumed that natural rights have a religious origin, there are many theories that are specific about the obligations and ethical behavior of individuals. But it must be understood that no theory among these has universal acceptance. As none of these theories can be applicable in all scenarios, no theory has actually gained predominance over the others. A requirement for flexibility arises in applying these theories in different situations and at times, even a combination of the different theories would be required for practical applications. Specifying a set of tenets that would be a combination of the best elements of all these theories to make a universal guideline would be a better option. Optimal use of these combination principles would be suitable for all situations but defining the best of these would pose a problem. Moral issues are usually conflicts between duties and no single principle can be defined as the absolute rule. These would remain moral presumptions as Field would call them which should be adhered to unless there is a valid situation demanding not to. When such principles are not observed they should be justifiable exceptions and may be fulfilling a different principle. Eight such principles have been suggested by Resnik in this regard. They can be listed as Non-malificence (Do not cause harm to yourself or to other people), Beneficence (Help yourself and other people as well), Autonomy (Allow rational individuals to make free and informed choices), Justice (Treat people fairly: treat equals equally and unequals unequally), Utility (Maximize the ratio of benefits to harms for all people), Fidelity (Keep your promises and agreements), Honesty (Do not lie, defraud, deceive or mislead) and Privacy (Respect personal privacy and confidentiality). The eight principles laid down by Resnik are a matter of debate since the connotation of words like harm, benefit, fairness, rational, and deception may be understood and explained differently by different people. A close observation of these principles assists in forming a general moral system. Another remarkable feature of these principles is that they are common to all cultures. These principles may or may not be influenced by religion but they do not completely rely on them. They are not rules in totality however should be seen as guidelines that should be used in combination with each other. Conflicts can arise among these principles. For example, the famous maxim, Honesty is the best policy is considered to be a good. However there can be situations where it may not be conducive, for instance, in situations where honesty is assisting a person with evil intentions. In situations where an ethical quandary arises, it has been advised to gather sufficient information and only after a Human Rights and Media Unit 2 Sikkim Manipal University Page No. 71 thorough research come to a decision. Therefore, a final decision could be made by evaluating the theories. This concept can be called moral reasoning and we generally find that it results in a state of reflective equilibrium or balanced judgment very often. The advantages of using this kind of defined principles are that they are understood better and easier to teach than the moral theories. As they can be covered under eight key words, the simple and plain structure of these principles it is easier to adopt for individuals. When we try to arrive at answers as to why these are considered good and what exactly is their purpose, we have to understand that these are very similar to Immanuel Kants suggestions and applicable to the golden rule test. As there would be no individual who would want to be harmed, neglected, betrayed, lied to, suppressed, cheated or invaded. It is a fact that everybody wants all others to behave without malificence towards them but with beneficence, fidelity and honesty as well as allowing autonomy, justice, and privacy. Hence an argument that these golden principles are to be accepted as universal objective principles stands strong. But we need to remember that their interpretation and application can also remain partly subjective. When we look at the scope of these eight principles, it is huge and is also found to include earlier theories on morality like natural rights and utilitarianism. However the moral theory of utilitarianism has come under heavy criticism as many people including philosophers and political thinkers feel that utility of two separate individuals cannot be compared. Each individual might have his or her own needs which might differ from that of the others and policies and regulations of morality would be affecting the interest of more than one individual. There might be a situation where one person may benefit from the same however some other person may not making it difficult to come to a decision based on utility of both the individuals needs. The concept of Preference Utilitarianism is being propounded in such scenarios. According to this concept, action is seen as conducive and recommended only if it essentially satisfies the needs of some without frustrating the needs of the others at the same time. This specific ethical theory or the other theories might not be suitable or may be difficult to practice in some circumstances. Hence, viewing it as a matter of judgement with respect to the other principles rather than as a single concrete theory which would provide a one-stop solution would be more appropriate. A thorough research with all the available knowledge or information should be complete before a judgement is exercised. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 72 In the same way, theories which revolve around individual freedom and seek to decipher ethics from all these principles benefit more from seeing the broader picture where all principles are seen in equality and balanced judgment. Utility as a moral principle as wide connotations and may include anything and everything which may be considered useful and beneficial to mankind. These things could mean a lot of aspects in life for individuals be it happiness, love, knowledge or material well being. When we look at the principle of utility it is not only relevant to inter-personal morality. Most government legislations or economic policy reforms are based on a form of utilitarianism which is expressed as a need for communal utility leading to maximization of community welfare. And in this scenario, an impartial economic analysis proves to be a very valuable tool for guidance. Most aspects of the economic theory would be in favour of maximization of utility as against the freedom that can be exercised in market choice. Hence when we associate economics and morality some people might feel it unacceptable. But this theory suggests that moral reasoning can be applied between individuals and also between individuals and a society. It also defines the societys obligations to the individuals involved. When we apply freedom and utility as additional principles, the rest of the principles find easier application with respect to the moral process of individuals or organizations/groups and also of the government. An apt definition of the notion of autonomy can be seen in the Universal Declaration of Human Rights, which states, the exercise of these rights and freedoms may be limited only for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in democratic society (Article 29). This article suggests that there needs to be a balance between individual rights and public welfare which means there needs to be a balance between autonomy and utility and that morality should be considered as an element in this process. Hence, we see a delicate balance between these principles being strived for in most public policy decisions and also in the international documents that have a great value ascribed to them. The individual level application of these principles with reference to inter- personal morality is quite obvious. The issue of abortion is found to have competing interests with respect to the mother and the foetus and these can be represented by non-malificence, beneficence and freedom in each case. So several issues must be weighed against each other and would have to be Human Rights and Media Unit 2 Sikkim Manipal University Page No. 73 balanced before a decision could be arrived at in this scenario. Here, we see that an implicit moral reasoning when applied get expressed into a more explicit principle. The advantage in this case is that there is no difficulty of defining the absolute rules that should be applicable in all situations. It is just a decision making on the basis of a few moral principles and does not have any practical application benefits. The principles provide a universal reference for evaluation irrespective of the fact that morally deviant behaviour will always occur in society. It has been seen that bad behaviour might involve disregard of a principle or inappropriate emphasis may be given to one principle. Herein if somebody has an acceptance of these principles, even if there are a few irrelevant rules (eg. a higher religious imperative), they have to be accepted as they are and there should be no arguments based on the universal principles. Even though every individual takes a moral stand in some way in most situations, a possibility of overlooking or being unaware of the relevant issues or facts may make them fail in the larger scheme of things. Religion and Morality We can often find, while analysing them that moral principles may have subjective judgments based on objective reasoning. There is often a delicate balance of judgment between competing objectives in many moral decisions. There might be a subjective judgement when the different moral principles are analysed finally but it is based on objective reasoning. Most moral decisions are the outcome of a delicate balance between actually competing objectives. The decisions are made based on the relative weightage associated with the competing principles. Though individuals may or may not differ in the importance given to the relevant principles but their open and clear reasoning is actually an advantage. This is not the case when it comes to religious morality where the reasons are closed and rigid and something can be considered bad just because it is believed to be bad. This might lead to a complete denial of certain moral principles without any clarity as to the reasoning behind it. Hence, evaluation of religious morality with reference to the universal morality becomes important. As different religions have different sets of morality, use of religious morality as a universal principle is not possible. And freedom of thought, conscience and religion as provided by the Article 18 of the Universal Declaration also makes this redundant. Most religions tend to enforce limits on the freedom of thought and conscience. Hence freedom from religion also signifies freedom from religious morality too. Contradictions to the universality of the Declaration Human Rights and Media Unit 2 Sikkim Manipal University Page No. 74 also cannot be universal. So, moral systems based on universal principles could be a solution here. The need for religious freedom as outlined by human rights is for the sake of the advancement of religious tolerance, even though it comes with an added contradiction as it also implies a tolerance to religious thoughts and beliefs that might not be tolerant. All these issues have to be associated with the moral relativism of the idea and also with the understanding that universal morality is neither possible nor desired. A discussion on the probable different forms of solutions for all these issues will naturally follow. But, before that is initiated, it would be better if a few difficulties that would possibly arise for religious thoughts and beliefs are considered when the moral principles are outlined explicitly. Though every individual deserves equal treatment by the tenets of moral justice, we find some religions violating this principle as it is obvious that the women do not receive equal treatment in those religious groups. For instance, Islam declares that women are inferior to men. This proves that religion in general has not always proved fruitful to human welfare. Though religion has been accused of motivating numerous wars, social strife and a number of violent acts, it has also been seen that religion is also responsible for the development of science and technology in the past centuries. This development in science and technology is ultimately linked to the economic prosperity. This effect is seen even today in many countries, Islamic countries in particular. In such cases, principles of utility, non malificence and beneficence are breached in the name of religion. Even more apparent problems are witnessed with religious ideologies when it comes to personal autonomy and honesty. Religions operate with a denial of freedom of thought and whether this is essential for the survival of religions is a matter of debate. But religious believers are usually denied a freedom of thought and persuaded into submission unlike the freethinkers. We find that the children are indoctrinated and threatened with eternal damnation when they voice their doubts. Thinking is permitted only as specified in the sacred books. There is no freedom of choice when it comes to religious beliefs. This is explicit in Islam where the Koran indicates This book is not to be doubted in almost its very first line and sanctions enforcement of religion on pain of death He that chooses a religion other than Islam, it will not be accepted of him. This denial of choice continues despite the Article 18 of Universal Declaration which assures everyone the right and autonomy to change their religion. Furthermore, religion has many issues when it is evaluated in the context of honesty, which is considered the most important universal principle. The Human Rights and Media Unit 2 Sikkim Manipal University Page No. 75 existence of supernatural beings and events are claimed to essential ingredients of most religions. All these claims are not based on beliefs and rely on faith rather than any valid proof. Though the holy books claim about the existence of supernatural beings, there is no substantiation provided that can be deemed as evidence. There are people who in support of their religious propaganda, claim that such supernatural beings do exist and there arises the question of why they cannot be held guilty of intellectual dishonesty. At the same time, individuals cannot be accused for stating what they actually believe as true. But when these individuals are in position of religious authority, it becomes their responsibility to speak the truth or base their facts on evidence before making claims such as the supernatural beings. At best, what they espouse relies on a reversal of the usual onus of proof. At worst, it amounts to blatant deception. Apart from religion, other areas of peoples interest are usually protected through government legislation. For example, consumer rights are protected by government regulations. The religious claims of supernatural beings are usually intended to induce belief and continue to remain as speculation. However we find that Christian evangelists continue to thrive especially in the USA. They continue to draw crowds with claims that should normally be considered deception and use it to their great personal advantage. We very often find religious leaders contradicting other religious groups and making unsubstantiated claims. Most people dont give any attention to such events or claims and the religious leaders do know that no reconciliation of facts is possible. Even if speculative claims are acquitted as intellectual dishonesty, making statements in direct contradiction of established or proven scientific facts (like the creation myths) to propagate religious faith should not be forgiven. It can be certainly concluded that religions do appear to be breaching it, even if they claim to represent universal morality. Self-Assessment Questions 5. Fill in the blanks with appropriate words: (a) Divine command theory holds that morality should be based on ________. (b) _________holds that morality should be guided by the greatest good for the greatest number, meaning that utility or happiness for all should be maximized. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 76 6. State whether the following statements are true or false: (a) An essential ingredient of most religions, are claims regarding the existence of supernatural beings and events. b) Many moral decisions involve an implicit balance of judgment between competing objectives. 2.5 A Humanist Alternative There is a predominance of the religious views in the world which unfortunately leads to a diversion from the universal values that would have been otherwise greatly beneficial to humanity. Though they proclaim to be absolutely moral the various religions actually have brought about a moral relativism which they actually claim to be opposing. Every religion considers its moral code to be correct and universal. But there should be a tolerance as well as a respect for other religious beliefs and because of this there comes the religious moral relativism. When this malaise of moral relativism is found to fuse with religious ideologies and the chosen people mentality, these contribute to a range of problems like endemic poverty, trade and income inequality, terrorism and unilateralism in the world. Because they are taught their religious ideologies from childhood most people believe that there is no better alternative than their religious theories. That becomes the only course that is available to them as long as they continue to believe. A state legislative statement of universal moral values as an alternative would have been greatly beneficial to individuals. Such kind of statements would at the end evolve or coincide with human moral values or humanist moral decision making processes. The possibility of such statements gaining universal acceptance is the main reason for humanist organizations issuing such statements. This kind of moral code that might gain a universal acceptance is possible only from a humanist perspective. A set of eight moral principles were proposed recently by an ethicist when introducing a study in professional ethics. The possibility of such principles completely encompassing all the moral issues and the reasoning process has not been realized. But each principle may be something that every individual would accept within the limits of the contradictions between the different principles. Hence, these could be labeled as universal principles. If there is a set of exhaustive set of principles, then there would be no moral issue that cannot be judged based on a balance between the principles. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 77 Then the method of using these principles has to universal in its application and we find that these principles are already being used whether it is in personal issues or in international relations. There is a universal opportunity to apply these principles and these might lead to the generation of a statement of universal ethical values. If ever there was a situation where these principles and application methods could be planned, the intention clearly would be to provide a universal set of guidelines for moral decision making. Then all individuals would be under an obligation to follow them which might not be supported by most people. Even though most people are accustomed to the concept of universal rights they would not be receptive to universal obligations. Though the rights are free, obligations might imply costs as there might be scenarios where one persons right might become another persons obligation. Thus, if and when universal ethical rights get accepted, universal obligations too would become mandatory. In that case a statement of universal values could be worded as a statement of universal obligations. There is nobody unfamiliar with universal rights and another statement of universal obligations must also be declared in the same lines. The existence of an authoritative body with an inclination to make such a declaration is required for that. Though it might be possible in future, any attempt in that direction has to be a simple statement right now. Though some cynics have doubts about the achievements, it would be possible if the non-religious individuals could take a stand that no religion is required for practicing morality. This would ensure that the religious are also made to think beyond their beliefs and establish that universal morality standards cannot be achieved with beliefs and also that religious beliefs would be inconsistent with universal values. The UDHR is a good example for such a document and it could take the form of a two-page (or less) document which should be in an authoritatively legal and readable language. This should consist of a preamble that describes the nature and purpose of the document and other details as numbered articles. A draft of a Universal Statement of Moral Obligations has been prepared to prove that such a viable document could be constructed. Now it is expected that other statements or improvements might happen because of this initiative. Such a document would be a challenge to all the detractors of state policy who would find faults in that document too. Even if its requirements are not completely met and it might not be the ideal document, this might be a valuable reference point towards that end. It has been drafted to gain wide acceptance. It does not list any specific moralistic rules but only lists the general principles and universal Human Rights and Media Unit 2 Sikkim Manipal University Page No. 78 method in employing them to answer moral questions. Several articles in the Universal Declaration do not bother to resolve the contradictions that might arise between different religions. Herein the freedom of thought should gain precedence. In most societies, religion is viewed or interpreted as the guardian of morality. This presumption of religious authority when it comes to morality is not in the best interests of the people. There is a possibility of establishing a moral authority as against the assumed perceptions of organized religions. However this alternative is possible only if a viable as well as a visible guide is provided to channelize the humanistic moral process. Human rights has started taking the shape of a religion in our world. They are described as the ethical yardsticks that measures and checks how a government treats its people. The 20 th century has seen a consensus on human rights and the various nations are judged against an international moral code. This code specifies that every individual is entitled to equal treatment and benefits as they are humans. And because of this, political debates in many nations are regarding human rights violations. We often find that most public discourses even in prosperous and democratic countries like Canada is also a verbosity of rights. The 1982 entrenchment of the Charter of Rights in the Constitution was a result of an endless stream of legal documents that continued to be produced in Canada. After the charter was created, many Canadians have started claiming that their particular needs/desires are also a matter of human rights and should be made available to every Canadian citizen. Very often, the desired benefit which is claimed as a human right is used as a technique to label and vilify any opposition as unprincipled or immoral. High moral ground for human rights becomes irrelevant in this scenario. Very often, the ever growing list of human rights agreements at the United Nations is cited as evidence that human rights are universal. Many political activists as well as commentators use this to support that their demands must be respected by everyone. The domestic human rights legislations that we have and implement are actually a representation of the human rights that has been recognized all over the world. They are universal and inalienable but human rights as a whole is a much more complicated concept than all these legislations. The authority of human rights can be accepted. But there are a lot of conceptual difficulties with respect to their origin, nature and their content. These Human Rights and Media Unit 2 Sikkim Manipal University Page No. 79 have to be analysed and understood before a complete acceptance of the human rights concept sets in. When such analysis is done, very often it is drawn to a point where human rights can be declared as a misnomer. We find that the phenomenon is just a description of certain ideals which are mostly controversial too. Self-Assessment Questions 7. Fill in the blanks with appropriate words: (a) Religions assume a prominent but unwarranted role in the perception of most societies as being arbiters and custodians of _______. (b) Human rights are the great ethical yardstick that is used to measure a ________ treatment of its people. 8. State whether the following statements are true or false: (a) Any inquiry into the origin, nature, and content of human rights reveals tremendous conceptual hurdles that need to be overcome before one can accept their pre-eminent authority. (b) Since the advent of the Charter of Rights, many Italians have claimed that particular benefits they desire are a matter of human rights and must be provided. 2.6 The Theoretical Foundation of Human Rights Though there are many presumed foundations that actually compete to be the base of the concept of universal human rights, we need to acknowledge all of them as they give us different perspectives about the various aspects that are protected by human rights. When we look at it from a larger point of view, each of these aspects does have its own strengths as well as weaknesses which face a lot of difficulties due to relativism and utilitarianism. Many human rights scholars claim that the very existence of human rights is to protect the dignity of human life. They declare that the inherent dignity of the human person is the point from which human rights originates and flows and they do insist that the United Nations Declaration on Human Rights also represents this goal. Very strong views are expressed, most frequently by people with liberal thoughts in the west, which insist that human rights should continue Human Rights and Media Unit 2 Sikkim Manipal University Page No. 80 towards the promotion and protection of human dignity. In the words of Jack Donnelly, we have human rights not to the requisites for health but to those things needed for a life of dignity, for a life worthy of a human being, a life that cannot be enjoyed without these rights. Though this view is held by most people and this is a very frequently invoked definition in the rhetoric of human rights. Since most societies see humans as above the other animals just because we have the capacity to improve the quality of our life, this concept of promoting human dignity has gained an universal appeal in todays world. The approach of promoting universal moral standards based on promotion of human dignity might not be very stable as identification of the nature of this dignity would pose a problem. This is revealed, though unintentionally, by Donnelly when he says Human rights represent a social choice of a particular moral vision of human potentiality, which rests on a particular substantive account of the minimum requirements of a life of dignity while elaborating on the disadvantages of deliberate human action resulting in the creation of human rights.When we think in terms of dignity it is mostly a matter of moral choice and it is a very elastic concept which is why the conception of dignity becomes important. Though freak assertions (like a dignified life includes 100 doting love- slaves) might be generally rejected with contempt, there might not be any conclusive agreement on the very core of dignity. So, disapproval might not mean that a universal component of dignity has been agreed upon. Though everybody agrees that all humans are equal, we find that Hindu, Confucian and roman catholic societies have a significant view on social divisions. Here, dignity is usually achieved by filling a particular role in a graded set of vocations. There should be some consensus about inherent dignity if human rights are to be universal standards and if there is no commonality of vision, dignity as the ultimate goal of human rights has hardly any meaning. Human wellbeing is an alternative basis for human rights and Allan Gewirth was a supporter of this approach. Though he would agree with Donnellys views that human rights manifest from mankinds morality, he does not agree that human rights could be a moral vision of human dignity. According to Gewrith, three types of rights address the different types of human wellbeing. While basic rights safeguard subsistence, non-subtractive rights would be for maintaining a purposive agency. Additive rights would enable an individual to improve his capacities (such as education). This differentiation between rights is suggested because Gewirth agrees tat the capacity for purposive agency varies in humans. He expands his views in the lines of proportionality individuals are entitled to rights in proportion to their capacity for agency. In this context, a comatose Human Rights and Media Unit 2 Sikkim Manipal University Page No. 81 individual who is incapable of any purposive action would be eligible for only the rights for subsistence. However, many people disagree with this capacity of agency and argue that such rights cannot be universal. Gewriths theories have been used by Husak in support of his arguments that no rights can be extended to all human beings. There is a distinction made between humans and persons and Husak concludes that some humans who are incapable of any purposive agency at any time may be grouped as non-persons. Gewrith disputes this and claims that all humans deserve to be given the basic rights atleast in the capacity that they would be either prospective or former purposive agents. However, the idea of all humans not entitled to all human rights to the same extent would not be an acceptable approach to many people. The contentment in human development may be a probable basis for human rights. But the drawback is that it would be interpreted with a different meaning when it comes to different cultures or individuals. We find this relativism in the words of OManique when he describes that A community and its members will develop to the extent that the members of the community support the development needs of others in the community, in ways that are appropriate to that community. When we interpret what is essential to fulfillment in expression, love or autonomy with respect to different cultures we would find that they differ to a great extent in different societies like Bedouin, German or Japanese. Though the specifications for the general entitlements that is required for human development may differ with respect to the space and time, the general basis of all these requirements will be the same. An alternative approach to human rights would be to provide for the human existence. Although there might be limitations on the ability of human rights to provide for human subsistence, the fact that subsistence is in being able to function rather than just keeping ones organs working makes human subsistence rely on human rights to a certain level. The needs of subsistence is disregarded as a narrow foundation for human rights by the supporters of other approaches. However, there is obviously no response to the counter-criticism regarding the consequences of the limits of human needs. Food, Clothing and Shelter are three basic needs without which a person would perish. These provisions are guaranteed by human rights.Apart from providing basic requirements for subsistence, human rights also provide basic health care which ensures human survival. As most households are not equipped with the facility to sustain life however are able to with the earnings, one can Human Rights and Media Unit 2 Sikkim Manipal University Page No. 82 argue that the range of human rights do penetrate into sustenance of human life. Thus, extending the effects of human right into other benefits of workforce. This extension holds true if the requirement of needs is satisfied even though it is not directly furnished but by providing an individual with the capacity to provide for themselves through earning wages in order to pay for their daily requirements. However, as per socialist view, it should be mandatory for the state to provide each and every individual with work in order to accomplish his requirement for sustenance. A more restricted view of this socialist view also emphasizes on the need for education so that an individual can find work. This theory also suggests that human rights can cover a large array of social welfare work, although this may prove to be an expensive affair. Subsistence based human rights, though expensive, has a set of advantages that are evident. The major advantage is its universality which is possible in only this case and we find all other approaches to human rights evading this issue. Though everyone may agree that Humans should survive, develop and lead a life of dignity we often find that there are a few inconsistencies in what is essential for survival. Sadly, there will be even greater disagreements on the requirements for dignity, development and well being.The simple nature of this theory based on subsistence can be much easily applied globally. Even though this theory of subsistence is conducive to the application of human rights, there are still some issues with the disparity that will arise from different views held by different societies with respect to the specific ways in which needs should be fulfilled. As we all know that each culture has distinct features when it comes to food, dress or shelter and as to what is acceptable to their culture. It has also been seen that there are vast differences in the approaches to basic things in life such as health care. The practice of supporting indigenous and/or spiritual theories for ailments and their therapies and outright rejection of western medicine is a simple example that can explain this ideology. Another important factor to be considered in the practical application of human rights is the difficulty in achieving the objective that every human being should survive. The general proposition that humans should survive becomes difficult to achieve when it is translated into a concrete action of ensuring that each and every human being should survive. There is definitely a limit beyond which no society can afford to devote all the resources that would be required to ensure that every individual survives. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 83 When it comes to the inspirations and goals of the various approaches to human rights, each is found to be unique. However a common ground can be seen in them. The dignity, well being and development based theories of human rights are found to emanate from the desire to protect and cultivate a quality of life. This is because the supporters of such theories feel that a life should be of dignity, well being and perpetual development. The approach based on subsistence is solely interested in the preservation of life. However this is a common ground among all theories which include the right to subsistence. Though these tenets of life based on dignity, well being and development provide an additional protection to the qualities of life; the rights to existence and subsistence of an individual seem to lose their significance. When we look at the common aspects of the different approaches to human rights, it would seem easy to conclude that these approaches are simply matters of emphasis. But the special focus of each approach leads to complete shift in their list of human rights. Though it is generally agreed that a life without dignity is not worth living, the human rights based on subsistence will not include the democratic rights that the supporters of human rights based on dignity swear by. There would be oppressed people (like Iraqi Kurds) who might be justified in using armed rebellion with the intention of freeing the entire population even though it would involve deaths. But the human rights based on subsistence would have sustenance as its focal point and would only advocate a nonviolent solution for the political change. Finally, it can be concluded that the foundation for the application of human rights may based on any one of these approaches depending upon what the state wants to protect. If a particular state finds the human rights approach based on subsistence devoid of democratic rights or equality, then they can follow an approach based on liberal dignity. However, the consequences of these approaches do not act as motivational factors in promoting human rights. It is evident from all these discussions that human rights foundations are not universally accepted and also that they are not self-evident. There is always a choice either implicit or explicit of a specific human rights basis and this choice has significant consequences when we look at the benefits that come under the purview of human rights. We find that choice is available in all facets of human rights and at times, these choices themselves do undermine the moral foundation on which the concept of human rights rests. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 84 Self-Assessment Questions 9. Fill in the blanks with appropriate words: (a) Strong arguments have been made, especially by western liberals, that human rights must be directed to protecting and promoting human _______. (b) A human rights approach based on subsistence may require a ______strategy for political change since the preservation of life is the ultimate goal. 10. State whether the following statements are true or false: (a) Theories of human rights based on dignity, well-being, or development all are motivated by a desire to protect and cultivate some quality of life. (b) Douglas Husak has used Gewirths theories to argue that all rights extend to all human beings. 2.7 Internationalization of Human Rights The notion of human rights has seen a continuous evolution throughout the human history. The concept of human rights is found to be intricately sewn into the fabric of human society with laws, customs and religious beliefs inculcated with human right ideologies. This is evident from the various documents that have been unearthed from different stages of civilizations and it is widely accepted that the ideology of human rights is as old as the first known civilization. Most ancient documents as well as the philosophies that emerged in later days bear a variety of thoughts that can be safely interpreted to have human right impressions. The Edicts of Asoka is a noteworthy document among these and was issued by the Mauryan emperor Asoka (272-231BC). Another document which is deemed as a excellent example of human rights is the Constitution of Medina drafted by Muhammad in 622 AD. This was the basis of a formal agreement or pact between all the important tribes and families of Yathrib. This was called the Medina in later times. However, the human rights as a phenomena and protection of mankind as an ideology became widely accepted and appreciated only after the two world wars. There were no set standards or regulations for the implementation or protection of human rights before the world wars. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 85 The origin and chronology of the human rights ideology can be classified as pertaining to the pre-war and post-war eras. The post war era has seen a well documented emanation of human rights and is classified into normative foundation, institution building and stage implementation. Significant milestone documents like the Magna Carta, French Declaration of Rights of Man, UDHR, ICCPR etc. and a concise account of the various approaches to human rights have found mention here. 2.7.1 Human Rights in Pre-World War Era The foundation of human rights can be traced back to the Babylonian laws. Prior to the two World Wars the origin and progress of human rights can be divided into the following periods: Prior to Greek period The first examples of codified laws with reference to individual rights can be seen in the Code of Hammurabi. This code was created in the form a tablet by the Sumerian king Hammurabi about four thousand years ago. Although, considered to be barbaric by present-day standards, the code of Hammurabi contains 282 laws which are deemed precedent for all future legal systems. Arbitrary prosecution and infliction of punishment of people was prevented by the legally binding Code of Hammurabi. Its cause and effect were very specific and there was no provision of protection in the case of issues like race, faith and individual freedom and this constituted the only problem with this code. Greek Period The very concept of human rights began to take a proper shape with a meaning and ceased to be just a prevention or protection from arbitrary prosecution of individuals only during the Ancient Greek period. It was the Greeks who took a stand that all individuals are equal and the universal law is binding on all individuals. Thus the Greeks were the ones who proposed the basic principles of natural law. From this angle, the human rights became synonymous with natural rights and these originated from the natural law. Socrates and Plato, the great Greek philosophers who felt that the natural law is a reflection of the order of the universe and the will of the God who controls nature. We can find a classical example of this in Greek literature where Antigone responds to the reproach of Creon defying whose command she buried her dead brother. Her simple justification was that she was acting under the laws of the Gods. The present day human rights, despite this principle, differ widely from the natural rights of the past. For instance, in the past is was considered perfectly Human Rights and Media Unit 2 Sikkim Manipal University Page No. 86 acceptable to keep slaves which totally vilify the idea and understanding of present day freedom and equality-two ideas which are key to the human rights movement. Roman period The Roman period also emphasized and believed in natural rights. Roman jurist Ulpian believed that natural rights was every human beings right, irrespective of them being citizens of Rome. Three categories existed in the Roman laws Jus Civile, Jus Gentium and Jus Naturale. Jus civile and Jus Genitum were based on Jus Naturale. This was an embodiment of natural law but was not directly enforceable in a legal context. The Greco-Roman period had a lot of doctrines evolving and the natural law of Stoicism was one of them. This period is believed by many academicians as the initial origin of human rights. According to Stoicism, there is a universal force that is seen to pervade the entire creation and hence human conduct should also be judged as per the laws of nature. Christian period Though the natural law as an ideology continued after the Roman period and led to the evolution of human rights, initially the natural law was accepted as the Will of God as defined by the holy scriptures. The church was seen as the personification of divine law and could actually override the state. As per the views spread by Christianity, all laws, government and property were supposed to be ignored or discarded as all these were products of sin. Medieval Age During the middle ages, human rights started evolving from their earlier forms and gained momentum in the form of natural laws. St. Thomas Aquinas was a person who made significant contributions to initiate and ensure an acceptance between the church and the natural laws. He classified four kinds of law in his Summa Theology and explained natural law as the discovery of eternal law. In his point of view, this discovery is achieved through reason and this reason is actually a manifestation of religion. Social Contractualist The idea of positive law became the next foundation for the human rights. The positive law that was interpreted as the natural law was vague and hollow and can also be interpreted in different ways in the eyes of Thomas Hobbes. Human rights thinking developed new angles of thought based on the works of John Locke. John Lockes theory on human rights claimed that each and every individual has equal right to life, liberty and freedom. These ideas were based on rational, Human Rights and Media Unit 2 Sikkim Manipal University Page No. 87 equal men and the natural rights given by god. It has been seen that many governments who disregard these rights become tyrannies which results in their losing the power and right to rule. The Lockean tenets actually formed the point of origin that culminated in the revolutions of the century. The American society was pervaded by the natural rights and the American could view the British rule only as a violation of their natural rights. The essence of the Lockean principles are found in the American Declaration of Independence and according to its claims, all men are created as equals and thus have the right to life, liberty and pursuit of happiness. The Bill of Rights which constituted a set of amendments to the US constitution, the justification of these rights is provided by appealing to the natural rights that are pivotal in the Rights of God. During the Middle Ages and later during the Renaissance period, there was a greater emphasis on individuals and individual rights. This was due to the fact that the church was undergoing a gradual decline in its power and standing in the society. This shift from church to individuals saw the individual expression flourish. Positivist Positive laws became the main source of human rights after the decline of natural law conception of human rights. The main writers of the theory of positivism are Austin and Bentham. According to positive laws human rights are not considered absolute and can be given, taken away or modified to suit the needs of society. Jeremy Bentham sums up the essence of the positivist view as : Right is a child of law; from real laws come real rights, but from imaginary law, from laws of nature, come imaginary rights.Natural rights is simple nonsense. This transfer of abstract ideas regarding human rights and their relation to the will of nature into concrete laws is exemplified best by various legal documents that specifically described these rights in detail: British Magna Carta (1215) As per these regulations, there could be no confiscation of land and property; laws deserve respect from the judges and taxation has to be enforced only with common council. The idea of Jury trial (Clause 39) is a significant aspect of the Carta which prevents arbitrary arrest/punishment for the individuals in a society. It was the Carta which declared that the King was not the absolute power and it was revised into the Bill of Rights later in the year 1689. French Declaration of the Rights of Man (1789) The National Assembly was constituted by the French people who harboured views that government corruption and public misfortune were largely due to the Human Rights and Media Unit 2 Sikkim Manipal University Page No. 88 ignorance, neglect and contempt of individual rights. Their representatives proposed to have a declaration for the natural, unalienable, and sacred rights of man. This was intended to remind the social bodys members about their rights and duties with its constant presence before them. This could provide for instant comparison of the acts of the legislature and the executive with respect to the purposes of these political establishments and generated respect for them. By ensuring that simple and incontestable principles are used to redress the grievances of its people, the declaration was drafted to aid the maintenance of the constitution as well as safeguard the peoples interests. Hence, the National Assembly proclaimed in the presence and under the auspices of the Supreme Being. Under the Declaration, rights of men and citizens includes guarantee of equality, liberty, free speech and specified that law can only be an expression of the general will of the people. Apart from aforementioned documents, there are various other documents that also mirror the notion of human rights and assist in their development and growth. In the beginning of 19 th century, constitutional laws in many countries realized the importance of human rights and that human beings possess certain rights. All this suggested that individual personality began to be recognized. 2.7.2 Human Rights in Post World Wars Era When we study the traditional international laws, it is observed that human beings had no rights in the laws that determine relations between the states. A stateless person had virtually no protection and the individuals power was confined to the states jurisdictions. Thus the international law had far reaching consequences for the individuals and we can catch a few exceptions. Some of these could be listed as other state interventions in humanitarian grounds, definition of sovereignty in the form of treaties and the League of Nations mandate system. The annihilation of Jews, Sinti and Romani communities along with homosexuals and disabled people during the Second World War by the Nazis of Germany resulted in human rights entering the limelight. The trials for the war crimes crimes against peace and crimes against humanity were held at Nuremberg and Tokyo after the end of the war. The officials from the countries that were defeated were tried there. Here, utilitarianism or positivism could not weaken naturalism while solving the issues. The concept of human rights seemed more relevant and when it came to that, national interests were not considered violated by the political powers which had authority. The concept of gross human rights violations was introduced into the international arena by the Nuremberg War Crimes Tribunal after the Second Human Rights and Media Unit 2 Sikkim Manipal University Page No. 89 World War. Every German soldier who was involved in the crimes against humanity faced individual charges and this new beginning in human rights after the war was in fact a direct reaction to the horrors witnessed during the Second World War. Robust waves of human rights swept across the world in the following years which can be aptly divided into three phases based on the events that happened around that time. Normative Foundation The Second World War was actually the catalyst that triggered the human rights movement. The United Nations Charter which was framed after the war asserted that a respect for human rights and fundamental freedoms were among the pivotal points of the organization. In 1948, the UN declared the international human rights norms and the UDHR was released by the assembly. The UDHR (also called International Magan Carta) took the revolution triggered by the United Nations Charter a little further. How a government treats its own people has become a legitimate international concern and cannot be ignored as a domestic issue. According to the UDHR all rights are actually interdependent and are not divisible. It is very forcefully and appropriately asserted in the preamble of the UDR that: WHEREAS recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.. The UDHR has substantially influenced policy making with respect to Human Rights. The principles of UDHR have been accepted and incorporated into the constitutions of more than 185 nations in the UN. Even though this declaration is not legally binding, 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. Though the League of Nations was in existence it had no authority to handle human right issues. Though the UN Charter was expected to develop a powerful international body for human rights, it did not because of the difficulties faced by the deciding authorities. The smaller countries that were in support of including Bill of Rights in the Charter did not have the political influence that was required leaving the human rights provisions of the San Francisco Charter vague and weak. Inspite of all these, the human rights provisions had very important consequences which may be listed as: Human Rights and Media Unit 2 Sikkim Manipal University Page No. 90 The UN Charter made human rights as an international concept. Even if all the matters did not come out of the domestic jurisdiction because of that very fact, human rights gained significance and acceptability. The UN could gather a legal authority worldwide and embark on an elaborate effort towards defining and codifying these rights. This was made possible only because of the obligation that the member states of the United Nations have to cooperate with the activities of the organization in promoting human rights in the world. Above everything else, the success of the efforts put in by the United Nations is witnessed in the International Bill of Rights as well as the many international human rights guidelines and codes available today, across the world. Institution Building The 1960 saw the emergence of the next phase in international human rights law and it continued to flourish in the decades that followed it. A second wave of activism was witnessed in the states of Asia and Africa that had gained independence recently. Several important covenants and conventions were organized and these along with the Declaration constituted the core of the international human rights norms in a written format. There were two separate milestones in the UNs framework. The first was a focus on the human rights obligations of the member states (in the Articles 55 and 56) and the vagueness witnessed in the terms to promote was resolved by the ECOSOC resolutions. The UN Commission on Human Rights drafted two treaties the ICCPR (International Covenant on Civil and Political Rights and its optional protocol) and the ICESCR (International Covenant on Economic, Social and Cultural Rights) with the intention of enforcing the principles specified in UDHR. These were combined with the Universal declaration to constitute the International Bill of Human Rights. Apart from this bill, the UN has additional principal treaties (numbering more than 20) that list out details of human rights. Provisions for prohibition of genocide and torture, especially for the protection of very vulnerable sectors of the population like refugees, women and children have been put in place. Now we see that the regional documents related to human rights in Africa, Americas and Europe are actually extensions of the International Bill of Human Rights. These documents along with the very popular movements in China, Korea and other Asian nations stand testimony to the influence of the human rights principles. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 91 Implementation and the Post Cold War Period It is true that there was a remarkable development of human rights regulations in the international scenario. But this was handicapped by the hidden political agendas of the Cold War. There was a high polarization and politicization of the human rights issues with warring East and West opinions with the South clinging on to its own views. A third wave was witnessed with the contempt against the overthrow of Chiles Allende government (1973), the enforcement of the 1966 Covenants as well as the initiation of Carters presidency in the US. The foreign aid provided by the US was proportionate to the human rights performance of the beneficiary nations in the 1970s. The non-governmental human rights organizations (like the Amnesty International) also came into existence during this period. Many European countries came out of communist rule with the end of the Cold War and went on to transform themselves into democratic entities. We can find that the end of the Cold War resulted in significant changes on human rights and this is witnessed in the Vienna and Programme of Action which was adopted at the World Conference on human rights ( Vienna, June 1993). The end of the Cold War in the early 1990s marked a new milestone in the activity and functioning of the human rights proponents. We find that human rights has gained more visibility in political language and political establishments and is found to play a more active role in the world affairs of current global society. With the General Assembly and Human Rights Commission becoming more active, there is a new wave of human rights activism. The UN goals of peace keeping have become increasingly associated with human rights protection. While genocides in Burundi, East Pakistan and Cambodia could elicit only verbal concerns, now, there are peace-keepers in El Salvador, Haiti, Guatemala and Rwanda who have specific commands for any investigation into violations of human rights. International tribunals have been instituted in Rwanda and Yugoslavia to try human rights crimes and this is the first time it has happened after Nuremberg. International politics influences international human rights commitments to a great extent. Pointing out conflicting cases where there were different reactions of action or withdrawal in what can be called similar circumstances is easy. The war in Iraq, though partly justified by human rights claims and the unwillingness to interfere in the genocidal civil war of Sudan is a classic example of this political influence. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 92 After the end of the Cold War, we find an increase in the use of human rights language in the arena of International power politics. Though the rhetoric might often hide the true intentions behind them, they do reflect the accepted values of the world in the present day scenario. The United Nations was established primarily to improve international peace and avoid conflicts. The governments of various countries committed themselves to the cause of United Nations after they could see the benefits. Ensuring that no one is denied life, freedom, food, shelter and nationality suddenly gained significance. President Franklin Delano Roosevelts State of the Union Address reflect the influence of human rights where he called for a world with four essential freedoms freedom of speech, freedom of religion, freedom from want and freedom from fear. There were clarion calls across the globe to ensure that basic human rights standards were provided to protect citizens from abuses by the state and to ensure that governments are held accountable for the human rights standards of those living within its borders. These voices had clearly influenced the San Francisco meeting which led to the drafting of the United Nations Charter in 1945. The collective or group rights emerged in the post world war era as a new form of human rights. These essentially safeguard and promote the cause of vulnerable groups like women, children, differently- abled, minorities etc. Activity 2 Research Greenpeace on the Internet and understands its objective and functioning. Also, find out a recent achievement of Greenpeace Self-Assessment Questions 11. Fill in the blanks with appropriate words: (a) The roots for the protection of the rights of a man may be traced as far back as in the_____________. (b) The United Nations Charter (1945) was drafted in the __________ meeting. 12. State whether the following statements are true or false: (a) In his 1941 State of the Union Address, President Franklin Delano Roosevelts spoke of a world founded on four essential freedoms: freedom of speech and religion and freedom from want and fear. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 93 (b) The latter half of the 20th century saw a rapid development of human rights norms-setting in international venues, which led to the political agenda of the Cold War favouring the issue. 2.8 Critical Theories of Law Critical legal theory has a very complex structure within and outside the traditional legal thought. On the close observation of legal thought, the most conspicuous point of departure is legal realism. The very fact that the connection is conspicuous tends to paint a reductionist picture of both the phenomena connected. 2.8.1 Legal Realism John Chipman Gray and Oliver Wendall Holmes, among others, were the thinkers who inspired the legal realist movement and this gained popularity through the works of Karl Llewellyn, Jerome Frank, and Felix Cohen and grew to great heights during 1920s and 1930s. the conceptual approach that was the hall mark of the naturalists and the positivists was ignored and the empirical analysis was favoured. These actually made it seem that the judges really decided the cases. Thought the idea of constraining the judges with rules was not completely rejected by the realists, they continued to believe that the judges could create new laws at their discretion. From the realistic point of view, judicial decision relies on the moral and political issues of the case rather than on the theories of naturalism and positivism. Legal reasoning was found to be combined with syllogistic reasoning when legal realism emerged in the face of legal formalism. According to the formalistic principles, the legal outcome should be a logical end that could be achieved from relevant facts and the legal rules. From the realistic point of view, formalism actually undermines the judicial lawmaking process and seeks to define the legal outcomes as the result of the application of rules and facts. In that sense, when the legal outcomes are already implied by the propositions that would bind the judges, judges would not have any legal authority to reach outcomes that would be conflict with one another. If we try to characterize legal realism, it can be seen that it roughly falls into three categories. The legal material which is available would be insufficient to bring about a very logical analysis and in most cases would not be worth a litigation at the appellate level Human Rights and Media Unit 2 Sikkim Manipal University Page No. 94 In cases with insufficient legal material, new laws are made by the judges to decide on the legal disputes by exercising the power of law making discretion and In countless cases, judicial decisions have been found to be influenced by the judges own political and moral convictions and not as they should be done based on the legal implications. Of course the third claim is entirely independent of the first and the second claims. However, the first claim might be seen as leading to the second claim where we find judges creating new laws while in the process of deciding legally indeterminate cases. The relation between legal realism, formalism and positivism is worth a mention at this point and while we find positivism entails formalism, we also find that legal realism is actually consistent with the principles of positivism. It is also seen to presuppose the truth in the core principles of positivism. When we hear the views of the realists, though law is essentially a product of the official process, we find that judicial lawmaking is more frequent than what we presume. But the truth of positivism is presupposed by the concept of law is a product of official activity. In spite of the empirical preoccupations of the realists, the associated commitments at the conceptual level were actually positive. 2.8.2 Critical Legal Studies The Critical Legal Studies (CLS) movement is based on the legal realism which finds itself extending its horizons into a Marxist critique of the mainstream liberal jurisprudence. The supporters of the CLS movement hold the view that the extent of indeterminacy is undermined by the realists, who ascertain that it is natural to find indeterminacy in certain cases. Still, according to the CLS theorists, the law is being globally indeterminate, i.e. the class of available legal materials rarely results in a unique and logical outcome. CLS theorists have always insisted on the law being shaped by ideological inputs. However, the law materials in the case of liberal democracies do suggest that the ideological struggles between the different factions of the society actually compromise and truncate the aspects of justice and goodness in socio-political life. These struggles are often found to reflect in the inconsistencies of law which leads to indeterminacy in the law. This aspect of inconsistency in the law gives a judge a lot of free ground to justify a number of conflicting cases. In a liberal view, the judge can only interpret the law and cannot be making the law, which is left to the government legislators. This is suitable in a democratic Human Rights and Media Unit 2 Sikkim Manipal University Page No. 95 setup where the legislators are accountable to the electorate. In the case of radical indeterminacy in the law, a judge should decide cases only by making new laws and this process is actually inconsistent with the law making authorities and their legitimate sources. Self-Assessment Questions 13. Fill in the blanks with appropriate words: (a) The legal realist movement was inspired by the likes of ________ and __________. (b) CLS theorists emphasize the role of ______ in shaping the content of the law. 14. State whether the following statements are true or false: (a) While formalism is often thought to be entailed by positivism, it turns out that legal realism is not only consistent with positivism, but also presupposes the truth of all three of positivisms core theses. (b) According to traditional liberal conceptions, the province of judges is to not only interpret law but make the law. 2.9 Summary Let us recapitulate the important concepts discussed in this unit: In the course of human history, human rights are regarded as an evolving phenomenon. Throughout the ages it has been observed that the concept of human rights has been sophisticatedly linked to laws, customs and religion. The Greek philosophers Socrates and Plato defined natural law as a law that reflected the natural order of the universe and most importantly the will of gods who controlled nature. There is a huge difference among human rights of today and natural rights of the past. In ancient times if was considered perfectly normal to keep slaves which is outright negation to the right of freedom and equality which is associated with present-day human rights. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 96 The idea of positive law gave birth to the next fundamental philosophy of human rights. Thomas Hobbes, an English philosopher known for his political thought viewed natural law as to not only being vague and hollow, but being available to different interpretations. Hence, under positive law, human rights can be given, taken away and modified according to the need and requirement of the society. Plato believes in the concept of universal truth and virtue. According to him human rights are universal and therefore are above the laws of individual state. Aristotle was of the view that different social classes existed in the world vis--vis accepting the fact that an underclass or slave class will always prevail and thus considered this perfectly normal. Changes in positive law were made consecutively in order to include the fact that states law stemmed from a constitution which is considered the legal structure on which society functions. The social contract theory designed by Rousseau stated that all individuals in a society and entered into a contract to form a civilized society in exchange of equality from the government. According to Rawls, the state should distribute everything equally amongst its people. Unequal distribution should only be permitted if it proves to be beneficial to the economically lower classes. One major event in the history of human rights was the signing of the Magna Carta, where an English monarch King John agreed to set the rights of all people into law. One of the major documents of French Revolution namely The Declaration of the Rights of Man and of Citizen defined individual and collective rights of a person. The United Nations came into existence after the Second World War and its main task was to establish rights for all individuals, irrespective of the fact as to where they lived. This led to the documentation of the Universal Declaration of Human Right (UDHR). The United Nations General Assembly adopted UDHR in the 1948 and was headed by Eleanor Roosevelt. It is useless to even trace the evolution of human rights as these rights are inalienable and inherent. It would be better to trace their evolution in terms of application vis--vis rule of law and government. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 97 The American Declaration of Independence was deemed a history-making document, for it contained the basic doctrines of an independent state which promotes the rights of an individual and rejects the feudal nature of government. It can be rightly said that the seeds of modern struggle to uphold human rights lay in the American Declaration of Independence. The phenomenon of human rights has been constant in European thought for many centuries, at least since the time of Englands King John. It has been said that King John violated a number of ancient laws and customs by which England was ruled. It was due to this reason that his subjects forced him to sign the Magna Carta, which is also known as the Great Charter Human rights activism in the late 19th century and early 20th century remained largely connected to political and religious groups and their beliefs. In order to propagate human rights, revolutionaries pointed at the brutality of state and strongly emphasized on the fact that there ideology was necessary to bring about change and end to government atrocities. Human rights are key to the stability and development of all countries. Major emphasis is given to the international conventions of human rights to ensure a universal standard of acceptability. A major area of concern for both humanists and atheists is the task of defining non-religious rules with respect to ethics and morality. This view has partly gained importance as some are of the belief that individuals who have no religious beliefs also lack morality and have no ethical foundation. The concept of utility as a moral principle is broad. It may include anything useful or beneficial to human welfare. This can mean happiness, love, and knowledge as well as material well-being. A fundamental flaw in the application of religious morality is that it cannot be universal, as different religions define different laws of morality. Religions have further difficult problems when evaluated in reference to the most important universal principle of honesty. An essential ingredient of most religions, are claims regarding the existence of supernatural beings and events. While proclaiming morality in absolute terms, the various religions in effect give rise to the moral relativism that they claim to oppose. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 98 Religions assume a prominent but unwarranted role in the perception of most societies as being arbiters and custodians of morality. There are some distinct advantages in basing human rights on the needs of subsistence. The prime benefit lies in universality possible with this foundation that eludes the other approaches to human rights that have been outlined above. The history of human rights covers thousands of years and draws upon religious, cultural, philosophical and legal developments throughout the recorded history. The roots for the protection of the rights of a man may be traced as far back as in the Babylonian Laws After the end of the Cold War, the international willingness to use the human rights language in international power politics has become larger. 2.10 Glossary UDHR: Universal Declaration of Human Rights, a declaration adopted by the United Nations General Assembly Autonomy: Self-government or the right of self-government Human rights: Commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being Ethics: A branch of philosophy that addresses questions about morality that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc. 2.11 Terminal Questions 1. Explain how did the concept of human rights develop? 2. Discuss the social science approach to human rights. 3. What is the importance of religion and morality in the development of human rights? 4. Explain the theoretical foundation of human rights. Human Rights and Media Unit 2 Sikkim Manipal University Page No. 99 5. What is the significance of the Magna Carta and the French Declaration of the Rights of Man? 6. Explain the internationalization of human rights. 7. Write a short note on legal realism. 2.12 Answers Answers to Self-Assessment Questions 1. (a) Babylon; (b) Nelson Mandela 2. (a) False; (b) True 3. (a) Positivist; (b) Historical 4. (a) True; (b) False 5. (a) Gods commands; (b) Utilitarianism 6. (a) True; (b) True 7. (a) Morality; (b) Governments 8. (a) True; (b) False 9. (a) Dignity; (b) Non-violent 10. (a) True; (b) False 11. (a) Babylonian Laws; (b) San Francisco 12. (a) True; (b) False 13. (a) John Chipman Gray, Oliver Wendall Holmes; (b) ideology 14. (a) True; (b) False Answers to Terminal Questions 1. Refer to Section 2.2 2. Refer to Section 2.3 3. Refer to Section 2.4 4. Refer to Section 2.6 5. Refer to Section 2.7 Human Rights and Media Unit 2 Sikkim Manipal University Page No. 100 6. Refer to Section 2.7 7. Refer to Section 2.8.1 2.13 Further Reading 1. Indian Institute of Human Rights. Principles and Theories of Human Rights, Volume 1 of Distance Learning Post Graduate Programme in Human Rights. Indian Institute of Human Rights. 2. Donnelly, Jack. Universal Human Rights in Theory and Practice. New York: Cornell University Press, 2003. 3. Claude, Richard Pierre, Burns H. Weston. Human Rights in the World community: Issues and Action. Philadelphia: University of Pennsylvania Press, 2006. References Donnelly, Jack. Universal Human Rights in Theory and Practice. Cornell University Press, 2003. Talwar, Prakash. Human Rights. Gyan Books, 2006. United Nations Universal Declaration of Human Rights. Unit 3 Organizations Related to Human Rights Structure 3.1 Introduction Objectives 3.2 UN and Its Specialized Agencies 3.3 General Assembly 3.4 Security Council 3.5 ECOSOC 3.6 UN Commission on Human Rights 3.7 UN and National Human Rights Institutions 3.8 Regional Commissions on Human Rights 3.9 Summary 3.10 Glossary 3.11 Terminal Questions 3.12 Answers 3.13 Further Reading 3.1 Introduction In the last unit, we studied various theories and principles pertaining to human rights. A vivid description of the origins and evolution of human rights has been discussed which prove helpful in the understanding of human rights. In this unit, we will study about organizations that are related to human rights. The UN and its specialized agencies play an important role in the protection of human rights. The United Nations General Assembly is one of the five principal organs of the United Nations with equal representation from the member nations. The role of the body is to get reports from different UN bodies and make proposals in the form of General Assembly Resolution. Objectives After studying this unit, you should be able to: Explain the role of the UN and its specialized agencies for the protection of human rights Recognize the role of the United Nations General Assembly Describe the working of the Security Council as a body for maintaining international peace and security Human Rights and Media Unit 3 Sikkim Manipal University Page No. 102 Identify the responsibilities of ECOSOC Explain the structure and working of the UN Commission on Human Rights Describe various National Human Rights Institutions 3.2 UN and Its Specialized Agencies Specialized agencies are autonomous bodies that work with the UN and with each other. These agencies are coordinated at the inter-governmental level through the Economic and Social Council (ECOSOC), and at the inter-secretariat level through Chief Executives Board (CEB). Currently, the UN has 17 agencies that perform various functions on its behalf. However, not all these agencies were originally created under the United Nations but were incorporated in the system by ECOSOC under the Articles 57 and 63 of the United Nations Charter. These specialized agencies are: 1. Food and Agriculture Organization (FAO) 2. International Civil Aviation Organization (ICAO) 3. International Fund for Agricultural Development (IFAD) 4. International Labour Organization (ILO) 5. International Maritime Organization (IMO) 6. International Monetary Fund (IMF) 7. International Telecommunication Union (ITU) 8. United Nations Educational, Scientific and Cultural Organization (UNESCO) 9. United Nations Industrial Development Organization (UNIDO) 10. Universal Postal Union (UPU) 11. World Bank Group (i) International Bank for Reconstruction and Development (IBRD) (ii) International Finance Corporation (IFC) (iii) International Development Association (IDA) 12. World Health Organization (WHO) 13. World Intellectual Property Organization (WIPO) 14. World Meteorological Organization (WMO) 15. World Tourism Organization (UNWTO) Human Rights and Media Unit 3 Sikkim Manipal University Page No. 103 16. Former specialized agencies 17. Related and comparable Organizations (i) International Atomic Energy Agency (IAEA) (ii) World Trade Organization (WTO) (iii) Organization for the Prohibition of Chemical Weapons (iv) CTBTO Preparatory Commission Food and Agriculture Organization (FAO) The Food and Agriculture Organization (FAO) of the United Nations leads international efforts to defeat hunger. Being the largest of the UN specialized agencies, FAO is a neutral forum that serves all nations and provides a platform for both developed and developing countries to discuss agreements and debate about policies. The body works towards improving agricultural productivity, raising nutrition levels, enhancing the lives in rural areas and contributing towards the growth of the world economy. FAO is headquartered in Rome, Italy. International Fund for Agriculture Development (IFAD) Established in 1977 as an international financial institution, International Fund for Agriculture Development (IFAD) is a result of World Food Conference held in 1974 after the drought in Sahel region of Africa. It is committed to eliminate poverty from developing countries. The headquarters of the agency is in Rome, Italy. International Labour Organization (ILO) The International Labour Organization (ILO) deals with labour issues. Its headquarters are in Geneva, Switzerland. Founded in 1919 after the Treaty of Versailles was signed, ILO was originally an agency of the League of Nations. It became a part of the UN system at the end of World War II when the UN was formed and the League collapsed. Its secretariat is known as the International Labour Office. International Maritime Organization (IMO) International Maritime Organization (IMO) was established in 1948 to regulate worldwide maritime safety and practices. Formerly known as the Inter- Governmental Maritime Consultative Organization (IMCO), the agency took almost ten years to come into full-force. The agency works towards improving maritime safety and prevents marine pollution by encouraging governments and shipping companies to work in tandem. Human Rights and Media Unit 3 Sikkim Manipal University Page No. 104 Headquartered in London, United Kingdom, the IMO is run by a group of members and is financially administered by a Council of members elected from within the Assembly. Its work is conducted through five committees which are backed up by sub-committees. Proceedings of the IMO may be supervised by the member Organizations of the UN which can be competent non-governmental Organizations as well. The secretariat of IMO consists of a Secretary-General who is elected by the Assembly and various other divisions. International Monetary Fund (IMF) The role of International Monetary Fund (IMF) is to provide financial stability and monetary support. It acts as a platform for discussion, advice and providing assistance related to financial matters. It is headquartered in Washington, D.C., United States. United Nations Educational, Scientific and Cultural Organization (UNESCO) Established in 1946, the role of United Nations Educational, Scientific and Cultural Organisation (UNESCO) is to encourage peace and security. The UNESCO promotes respect for justice, human rights and fundamental freedoms, as mentioned in the UN Charter by bringing further the cooperation among nations through education, science and culture. The specialised agency of United Nations is headquartered in Paris, France. United Nations Industrial Development Organisation (UNIDO) The headquarters for the United Nations Industrial Development Organisation (UNIDO) are located in Vienna, Austria. The primary goal of the agency is to boost industrial development, in countries where economic environment is changing, and to promote industrial cooperation across borders. The Organization works towards improving living conditions, reducing poverty and achieving the Millennium Development Goals. It works on three main thematic areas: Poverty reduction through productive activities; Trade capacity-building; and Energy and environment. World Health Organization (WHO) The World Health Organization (WHO) acts as a coordinating authority on international public health. Human Rights and Media Unit 3 Sikkim Manipal University Page No. 105 WHO originates from the Health Organization which was an agency of the League of Nations. WHO was established on 7 April 1948 and it acquired the role and resources of its predecessor. The headquarters of this agency is in Geneva, Switzerland. Activity 1 Surf the internet and write a detailed article on WHO. Self-Assessment Questions 1. Fill in the blanks with appropriate words: (a) The __________of the United Nations leads international efforts to defeat hunger. (b) The _____________ acts as a coordinating authority on international public health. 2. State whether the following statements are true or false: (a) The International Labour Organization (ILO) deals with labour issues. Its headquarters are in Paris, France. (b) The United Nations Industrial Development Organization (UNIDO) is a specialized agency of the United Nations system, headquartered in Vienna, Austria. 3.3 General Assembly The United Nations General Assembly (UNGA/GA) is one of the five principal organs of the United Nations with equal representation from the member nations. The role of the body is to get reports from different UN bodies and make proposals in the form of General Assembly Resolution. Additionally, it also manages its funds and appoints non-permanent members to the Security Council. Composition The UN General Assembly holds annual meeting under it Secretary-General between September and December which begin again in January until all the issues are discussed. These sessions can start again in case of emergency or under special circumstances. Chapter IV of the United Nations Charter deals Human Rights and Media Unit 3 Sikkim Manipal University Page No. 106 with the UN General Assembly particularly its procedure, composition, functions, powers and voting. The first session took place on 10 January 1946 in the Westminster Central Hall, London and was attended by representatives from 51 nations. The General Assembly takes voting on issues related to members election, admission, suspension and expulsion. It also conducts voting on peace and security; and fund-related issues. The decision on these matters is taken based on two-thirds majority of those present and voting, rest other issues are decided by majority vote. Each member country has one vote. The Assembly can make any suggestion on any matter within its ambit, however, any recommendation related to peace and security is considered by the Security Council. These issues are determined keeping in mind two-thirds majority of those present and voting, and the other issues are determined by majority voting. Each member country in the assembly has one vote. Assembly declarations, except for the matters relating to budget, including the adoption of a scale of assessment, are not obligatory for the members. The principle of one state, one vote power allows countries that constitute only eight percent of the world population, to pass a resolution by a two-thirds vote. Due to the changing framework of UN membership and exceptional growth in 1980s, the Assembly became a platform to discuss various issues. These discussions were primarily about the issues between developed industrialized countries and developing countries, and came to be known as North-South dialogue. When the UN was established in 1945, it had only 51 members and now it consists of 193 members of which two-third are developing countries. Primarily due to their representation, developing countries are able to dominate the agenda of the Assembly (using groups like the G77), nature of its debates as well as its decisions. Because of this, the UN has emerged as a primary centre for developing countries for political influence and foreign relations initiatives. Functions and Powers The General Assembly is the main planning body of the UN that takes decisions on critical issues such as budget, peace and security, and admission of new members that requires a two-thirds majority. However, decisions on other matters are taken on the basis of simple majority. Each country has one vote and some member States in arrears of payment may also be allowed to vote. The General Assembly has set up various councils, working-groups and boards to monitor its day-to-day functions. It has its own set of rules and regulations and an elected head, President, for each session. Human Rights and Media Unit 3 Sikkim Manipal University Page No. 107 The General Assembly is the main decision-making body of the UN. It was established in 1945 under the Charter of United Nations with the role to take decisions and discuss issues mentioned in the Charter. It comprises of 193 countries as its members and plays critical role in setting standards and systematisation of international law. According to the Charter, the General Assembly can: make suggestions to maintain peace and security, including limiting the size of arms and armaments. discuss issues related to peace and security and make suggestions. However, it can not discusses the cases that are already being discussed by the Security Council. discuss and propose on any issues within the scope of the Charter (with the same exception). take measures to promote international cooperation, develop International Law, create awareness about human and fundamental rights. It can also propose initiatives to promote cross-border cooperation in the field of health, economy, education and cultural. suggest methods for peace settlements between countries to prevent dissonance. get reports from other UN bodies including Security council. approve and audit budgets of member states. admit non-permanent members of Security Council and other UN bodies on the suggestion of Security Council. It can also appoint the Secretary- General. If there is a threat to peace and possibility of a hostile environment, UNGA can interfere as per the Uniting for Peace declaration of November 1950 (resolution 377 (V). According to the declaration, when the Security Council fails to act and a negative vote is cast by a permanent member, the UNGA can take measures to restore peace and security and make suggestions to members In case, the UNGA can take action. However UNGA, on international issues, can only make non-binding recommendations but it has taken measures which have had an impact on lives millions of people around the world. At the Millennium Declaration of 2000 and World Outcome Document of 2005, the member countries of UN adopted a two-fold agenda to strengthen the UN, first to maintain peace, security and disarmament; secondly to reduce poverty, prevent human rights and environment;. Human Rights and Media Unit 3 Sikkim Manipal University Page No. 108 In order to garner support for its decision, the assembly has recently has started taking decisions based on the consensus rather than through voting. The president after discussing with members and reaching a consensus can declare a resolution to be accepted with any formal voting. The General Assembly functions through six main committees. These are: (a) First Committee - Disarmament and International Security Committee. (b) Second Committee - Economic and Financial Committee. (c) Third Committee - Social, Humanitarian and Cultural Committee (d) Fourth Committee - Special Political and Decolonisation Committee (e) Fifth Committee - Administrative and Budgetary Committee (f) Sixth Committee - Legal Committee Self-Assessment Questions 3. Fill in the blanks with appropriate words (a) The United Nations General Assembly (UNGA/GA) is one of the _______ principal organs of the United Nations. (b) Established in _____ under the Charter of the United Nations, the General Assembly occupies a central position as the chief deliberative, policymaking and representative organ of the United Nations. 4. State whether the following statements are true or false (a) The General Assembly meets under its President or Secretary- General in regular monthly sessions. (b) Each Member State in the Assembly has one vote. 3.4 Security Council The main responsibility of Security Council is to maintain peace and security. A member of Security Council is always present at the UN headquarters in New York. In 1992 the Security Council held its first ever summit on 31 st January which was attended by all of its 15 member-countries. At this summit 13 Heads Human Rights and Media Unit 3 Sikkim Manipal University Page No. 109 of State and Government were present and two Ministers for Foreign Affairs. There is no location fixed for the meeting of council. In 1972 the council met in Addis Ababa, Ethiopia, and in Panama City, Panama in 1973. In case of any peace and security threat, the first and foremost task of Security Council is to help resolve the situation with mutual consent. The council can also initiate investigation and appoint a special representative. However, if a dispute has led to agitation, the council can order cease-fire to prevent any hostilities. In order to maintain a peaceful environment and reach a settlement, the council can also send UN Peacekeeping troops. To restore peace between conflicting countries, the council can take enforcement measures, apply economic penalties or even take military actions. If such measures are taken against a member country, that country may not be allowed to use its privileges at the General Assembly. It may also be expelled if it continues to offend the charter. Both member and non-member countries of the Council are allowed to participate in discussions, if they are a party to the dispute, however only a member country is allowed to vote at the council. Members The Security Council consists of five permanent members and ten non- permanent member. Presently China, France, Russian Federation, United Kingdom and United States of America are the only five permanent member of the council. General Assembly elects the non-permanent members of the council for a period of two years. However, these non-member countries can not be re- elected in succession. Member states, based on their alphabetical listing, holds the office of President of the Council every month. Any decision pertaining to procedures is taken based on the A positive vote of nine out of 15 members is enough to take a decision on issues pertaining to procedures, however a more critical issue also requires the supporting vote of five permanent members. This is known as the veto power- the rule of great unanimity. Under the Charter, only Security Council has the power to make decisions which are carried out by all the member states, however, the UN bodies can only make suggestion to the governments. 3.4.1 Committees under Security Council Standing Committees Currently there are three committees and each includes a representative of all Security Council members. These three committees are: Human Rights and Media Unit 3 Sikkim Manipal University Page No. 110 1. Security Council Committee of Experts 2. Security Council Committee on Admission of New Members 3. Security Council Committee on Council meetings away from Headquarters Ad Hoc Committees They are established as and when required. They comprise of all Council members. Some ad hoc Committees are: 1. Governing Council of the United Nations Compensation Commission established by Security Council resolution 692 (1991) 2. Committee established pursuant to resolution 1373 (2001) concerning Counter-Terrorism 3. Committee established pursuant to resolution 1540 (2004) Sanctions Committees 1. Security Council Committee pursuant to resolutions 751 (1992) and 1907 (2009) concerning Somalia and Eritrea 2. Security Council Committee pursuant to resolution 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities 3. Security Council Committee established pursuant to resolution 1518 (2003) 4. Security Council Committee established pursuant to resolution 1521 (2003) concerning Liberia 5. Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo 6. Security Council Committee established pursuant to resolution 1572 (2004) concerning Cte dIvoire 7. Security Council Committee established pursuant to resolution 1591 (2005) concerning the Sudan 8. Security Council Committee established pursuant to resolution 1636 (2005) 9. Security Council Committee established pursuant to resolution 1718 (2006) 10. Security Council Committee established pursuant to resolution 1737 (2006) 11. Security Council Committee established pursuant to resolution 1970 (2011) concerning Libya 12. Security Council Committee established pursuant to resolution 1988 (2011) Human Rights and Media Unit 3 Sikkim Manipal University Page No. 111 Working Groups Security Council Working Group on Peacekeeping Operations Security Council Ad Hoc Working Group on Conflict Prevention and Resolution in Africa Security Council Working Group established pursuant to resolution 1566 (2004) Security Council Working Group on Children and Armed Conflict Security Council Informal Working Group on Documentation and Other Procedural Questions 3.4.2 Functions and Powers The Charter has underlined functions and powers of the Security Council. These are: to maintain peace and security across borders as per the principles and purposes of the UN; to examine any difference or condition which may lead to conflict; to suggest ways of correcting such differences or the outline terms of agreement; to develop plans for the formation of a system to regulate arms; to find out the cause of a threat to the peace or act of violence and make suggestion to maintain international peace; to call on members to use funds and other aids not involving the use of arms to prevent or stop any aggression; to use force against an aggressor; to invite suggestions to admit new members; to exercise the role of trusteeship in strategic areas; to suggest for nomination of Secretary-General to UNGA, along with the Assembly; to elect the judges of the International Court of Justice. 3.4.3 Reforms of Security Council The United Nations Security Council (UNSC) covers five key issues: 1. Types of membership 2. Question of the veto held by the five permanent members Human Rights and Media Unit 3 Sikkim Manipal University Page No. 112 3. Regional representation 4. Size of an enlarged Council and its working methods 5. The relationship between Security Council and General Assembly Since 1945, political and geographical boundaries have changed but Security Council has only undergone minor changes. Post World War II, the winning nations shaped the Charter, favouring their own countries and retaining permanent seats and veto power with them. However, with decolonisation and increasing confidence of new members, old ways are gradually being challenged. As the inadequacy of number of seats and members because evident, Security Council in 1965 increased the number of non-permanent members to 10 from six. In 1992 Boutros Boutros-Ghali, when UN Security Council again launched discussions on reforms, at his first ever summit published An Agenda for Peace to change the old procedures of UN bodies. The year 1992 marked the formation of G4. Germany (second largest contributor to the UN), Japan (third largest contributor to the UN), Brazil (fifth largest country in terms of territory) and India (second largest country in terms of population) petitioned for a permanent seat at the UN Security Council as they identified themselves as powerful countries within their regions. These four countries together form G4. Their regional competitors were against G4 getting a permanent-member status at the Council with a veto power. However, these rival countries were in favour of expanding the number of non-permanent members and electing them on the basis of their region. These countries together formed an interest group that came to be known as Coffee Club and later Uniting for Consensus. The members of this group are Italy, Spain, Argentina, Canada, Mexico, South Korea and Pakistan. Considering the fact that large part of the agenda of Councils focuses on developmental issues in Africa and historical injustices, the African groups also appealed for two permanent seats at the Council that will rotate between African countries chosen by the group. Reluctantly, the five permanent members announced their positions. The United States backed Japan and India for their permanent-member status in addition to few non-permanent seats. The UK and France supported the G4 for permanent-member status with expansion of permanent and non-permanent members. The UK also supported the presence of African group on the council. China supported Indias demand to give it permanent-member status and Human Rights and Media Unit 3 Sikkim Manipal University Page No. 113 petitioned for a stronger representation from developing nations. Russia also supported Indias demand. 3.4.4 India in Security Council In 1945, India joined the UN and since then it has been the third largest contributor of troops to the UN Peace keeping missions and main contributors to the UN budget. India has so far been elected seven times at the member of UN Security Council. Most recently, India was elected to the Security Council as a non- permanent in 2011-12 by receiving 187 votes out of 190. It was supported by all the five permanent-members of the UNSC. India is a nuclear power state with worlds second largest population. It is also the worlds largest liberal democracy and worlds tenth largest economy. It stands fourth in terms of purchasing power parity and has worlds third largest active armed force. The International Herald Tribune stated Clearly, a seat for India would make the body more representative and democratic. With India as a member, the Council would be a more legitimate and thus a more effective body.... Thomas Friedman of the New York Times said Sometimes I wish that the five permanent members of the UN Security Council could be chosen ... with a vote by the fans ... Then the permanent five would be Russia, China, India, Britain and the United States. Thats more like it. India is the worlds biggest democracy, the worlds largest Hindu nation and the worlds second-largest Muslim nation. Exhibit 3.1 2011 Difficult for UN Security Council Unity Growing acrimony among the permanent five members of the U.N. Security Council is jeopardizing action on serious issues including the councils ability to send a strong signal on the situation in Syria. From the United Nations, Margaret Besheer reports 2011 has been a difficult year for the 15-member council and tensions among the permanent five could make consensus- building in 2012 a challenge. The different political ideologies of the permanent five members - Britain, China, France, Russia and the United States - have always made for an interesting dynamic on the U.N. Security Council. But this year, relations among the five have frayed over authorization of the NATO mission to protect Libyan citizens and a difference of opinion about events in Syria where the U.N. says more than 5,000 people have died during a government crackdown on political dissenters. Human Rights and Media Unit 3 Sikkim Manipal University Page No. 114 The divisions among the so-called P5 became even clearer this week, when the Russian, American and French ambassadors took to the microphones after a meeting on Libya Thursday. The Russian Ambassador demanded an independent investigation into the possibility that NATO bombings caused the deaths of some Libyan civilians. His American and French counterparts said he was seeking only to divert attention from events in Syria, an ally of Russia. U.S. Ambassador Susan Rice told reporters that NATOs actions saved tens of thousands of Libyan lives - an accomplishment she said that should be celebrated - and she chided her Russian counterpart. If the Libyans want to work with NATO to investigate any concerns they have, we are more than willing to do that, said Rice. I think it is notable that we have not heard that call from the Libyan government. So let us see this for what it is - it is duplicative, it is redundant, it is superfluous, and it is a stunt. And if others want to go along with it they can, but I did not hear a majority of the members of the council indicate they think this is necessary. Her French counterpart, Grard Araud, noted that there are already two on- going investigations into how the Libyan crisis played out - one is being conducted by the U.N. Human Rights Council and the other by the International Criminal Court - and he brought the conversation back to Syria. There are two on-going investigations, so why ask for a third one while we do not have any investigation committee in Syria when in the last 3 to 4 days more than 250 people have been killed, noted Araud. This is a bit strange. So we can say that we have seen today one more ploy. On Friday, Russian Ambassador Vitaly Churkin, who is president of the council this month, expressed his frustration with his colleagues at a hastily called news conference. He said the growing acrimony among the P5 is affecting the councils work. I am worried. It has been my fifth and toughest presidency. I think that as a council we are not moving in a good direction, Churkin said. There is a lot of nervousness, a lot of expectations that things are going to be done my way or no other way. That what I need to have I must have now, no objections entertained or no other views are entertained. I dont think this is a good way to work in the council. I think that if this trend were to continue it might seriously hurt the ability of the Security Council to work. He said he does not know how to reverse this negative trend and said that even on the smallest issues there have been disagreements. Some council members say the Libya resolution has had a lasting impact on Human Rights and Media Unit 3 Sikkim Manipal University Page No. 115 how some council members approach matters such as Syria and Yemen, making them fearful of directly or indirectly authorizing outside intervention. Other diplomats say it is just a convenient excuse to do nothing. After Fridays press conference, Ambassador Rice tweeted a friendly holiday message to Ambassador Churkin, but her spokesman tweeted a photo of a storybook character who steals Christmas with the face of the Russian diplomat super-imposed over the characters face. As 2011 ends on a rocky note, it remains to be seen how the five powers will work together in the new year. Meanwhile, the councils draft resolution on Syria hangs in the balance as negotiations continue in this tense atmosphere. Source: http://www.voanews.com/english/news/2011-was-Difficult-for-UN-Security- Council-Unity-136186003.html Accessed on 27 December 2011 Self-Assessment Questions 5. Fill in the blanks with appropriate words (a) The __________has primary responsibility, under the Charter, for the maintenance of international peace and security (b) India has been elected ________times to the UN Security Council. 6. State whether the following statements are true or false (a) India is the worlds tenth largest economy and fourth largest in terms of purchasing power parity. (b) The Security Council is composed of four permanent members China, France, Russian Federation and the United States. 3.5 ECOSOC Under United Nations Charter, the United Nations Economic and Social Council (ECOSOC) was established as the primary body to manage economic and social work of the specialized agencies of the UN, functional commissions and regional commissions. Fourteen specialized agencies, five regional commissions and 11 UN funds and programmes also report to ECOSOC. The Economic and Social Council (ECOSOC) serves as the central forum for Human Rights and Media Unit 3 Sikkim Manipal University Page No. 116 discussing international recommendations addressed to the member nations and the United Nations system. Its responsibilities are as follows: 1. Promoting better quality of life, employment and socio-economic progress; 2. Identifying solutions to the global health and socio-economic problems; 3. Facilitating cultural and educational cooperation between countries; and 4. Creating awareness about human rights and fundamental freedoms globally. ECOSOC can initiate studies and reports on these issues. It is also under its scope to assist in preparing and organizing major international conferences to discuss on economic and social issues and also help in coordinating follow- up to these conferences. With its wider set of responsibilities, the purview of ECOSOC extends to over 70 per cent of the human and financial resources of the entire UN system. ECOSOC at Work To fulfill its responsibilities, ECOSOC can consult business sector representatives, intellectuals and around 3,200 registered non-governmental Organizations. It holds a session every year in July for four weeks, alternately between New York and Geneva. The session consists of various sections like High-level Segment, Coordination Segment, Operational Activities Segment, Humanitarian Affairs Segment and the General Segment. The High-level segment is a forum to discuss issues of economic, social and environmental development. The segment consists of ministers and executive heads of international institutions, high-ranking officials, civil society and private sector representatives. In 2005, ECOSOC was given two additional responsibilities: 1) Annual Ministerial Review (AMR), 2) Development Cooperation Forum (DCF). A Ministerial declaration is adopted at the end of the segment to provide policy guidance and suggestions for action. In recent years, ECOSOC has taken a lead role in key policy areas: High-level Segment 2010: Focussed on Gender Equality and Womens Empowerment and led to the formation of United Nations Women. ECOSOC President Hamidon Ali said, women empowerment and gender equality is at the core of development and peace. High-level Segment 2009: Focussed on implementing development goals and commitments in regard to global public health. High-level Segment 2008: First biennial Development Cooperation Forum and second Annual Ministerial Review was launched that focussed on Human Rights and Media Unit 3 Sikkim Manipal University Page No. 117 implementing millennium goals and commitments to sustainable development. The President of ECOSOC, Lo Mrors, mentioned the 2008 Substantive Session as historic as it enforced new functions of the Council in their totality. High-level Segment 2007: First Annual Ministerial Review and Development Cooperation Forum was launched. Evaluated progress made towards the execution of Millennium Development Goal 1- eradicate extreme poverty and hunger. In order to highlight the work done, Bangladesh, Barbados, Cambodia, Cape Verde, Ethiopia and Ghana voluntarily made presentation. It also reaffirmed its commitment to achieve MDG1 by 2015. High-level Segment 2006: focused on productive employment and its impact on the sustainable development. High-level Segment 2005: Discussed progress made on Millennium Development Goals and the international partnership required to achieve this. High-level Segment 2004: Focussed on least developing countries and discussed resource mobilisation to reduce poverty. It led to launch of rural initiatives in Benin, Africa. High-level Segment 2003: Resulted in promotion of an integrated approach to rural development in developing countries for poverty eradication and sustainable development initiative in Madagascar. High-level Segment 2002: accepted resolution on the contribution of human resources in areas such as health, education and development High-level Segment 2001: New Partnership for Africas Development (NEPAD) is formed to focus on developmental issues in the continent of Africa. High-level Segment 2001: ICT (Information and Communication Technologies) Task Force in 2001 is established as a suggestion of ministerial declaration to bridge the digital divide . High-level Segment 1999: Manifesto on Poverty was issued that led to formulation on Millennium Development Goals. In 1998, ECOSOC started a practice of meeting in April every year, in addition to substantive sessions, with finance ministers who are heading key committees of the Bretton Woods institutions. These meetings resulted in successful International Conference on Financing for Development, in March 2002 in Monterrey, Mexico that adopted the Monterrey Consensus; and ECOSOC Human Rights and Media Unit 3 Sikkim Manipal University Page No. 118 was assigned to assess the Consensus. These meetings have helped in building a relationship between the UN and international financial and trade institutions, and have strengthened their association for accomplishing the globally accepted development goals, including the Millennium Development goals. Participation in the meetings has widened since the first-ever meeting in 1998. The chairperson of the Development Committee of the World Bank, the chairperson of the International Monetary and Financial Committee of the International Monetary Fund, the General Council of the World Trade Organisation and the Trade and Development Board of UNCTAD attends these meetings. ECOSOC Reform - Strengthening the Council Since the inception of the UN in 1945, ECOSOC has undergone over a dozen proposals for reforms. These reforms have resulted in expansion of membership and in new processes to make ECOSOC more effective. ECOSOC has been receiving support to strengthen its role with the UN system. The 57th General Assembly accepted resolution 57/270B, which allows the formation of the Ad-Hoc Working Group on the Coordinated and Integrated Implementation and Follow-Up. Accordingly, ECOSOC and its subsidiary organs were granted an important role for the coordinated implementation and follow- up of the outcomes of the major UN conferences and summits of the 1990s. Over the last few years, ECOSOC has been strengthened as a central body of the UN coordination. Despite this, there is a continuous demand to strengthen the body further. Heads of State and government responded to this call. In paragraph 155 and 156 of the 2005 World Summit outcome document, the existing functions of ECOSOC were strengthened and it was entrusted with important new roles. Paragraph 155 and 156 of the World Summit document allows ECOSOC to: evaluate the progress made in the execution of the major UN conferences and summits of the last fifteen years; and Millennium Development Goals. serve as a platform to engage in global policies and trends in the economic, social, environmental and humanitarian field and review trends in international development co-operation. Under the chairmanship of H.E. Ambassador Johan C. Verbeke of Belgium and H.E. Ambassador Cheick Sidi Diarra of Mali, on 20 November 2006, the 61/ 16 resolution of General Assembly on strengthening of ECOSOC was adopted. The five key elements of the resolution are: Human Rights and Media Unit 3 Sikkim Manipal University Page No. 119 1. The AMR can review progress made in the implementation of the UN Development Agenda and Millennium Development Goals. 2. The DCF can review progress in issues of aid quality and quantity, and give policy guidance on practical measures. It can also make suggestion on improving its effectiveness. 3. Geneva session of July 2007 marked the launch of first AMR and biennial DCF. 2009 onwards DCF are held biennially in New York. 4. ECOSOC can summon ad-hoc meetings on humanitarian emergencies as and when requested. 5. Peace-building Commission will benefit from the Councils experiences in the area of post-conflict peace building and the success of its Ad-Hoc Advisory Groups. After adopting the General Assembly resolution, the Council further accepted a decision which provides further details on the modalities of involvement of ECOSOCs subsidiary machinery in the preparation of the first 2007 Annual Ministerial substantive Review and Development Cooperation Forum. 3.5.1 Members The Councils fifty-four member Governments are elected by the General Assembly for overlapping three-year terms. Seats on the Council are reserved on the basis of geographical representation. Fourteen seats are allocated to African countries, eleven seats to Asian countries, ten to Latin American and Caribbean countries, six to East-European countries and thirteen to West- European and other countries. On October 24, 2011, the General Assembly elected eighteen members of the Economic and Social Commission for 2012-2014. These countries are Belarus, Brazil, Burkina Faso, Cuba, Dominican Republic, El Salvador, France, Germany, India, Indonesia, Ireland, Lesotho, Libya, Nigeria, Spain, Turkey, Ethiopia and Japan. On October 5, 2011 Monaco reported that from 1 January 2012, Belgium will resign and give its seat to Netherlands while Norway will relinquish in favour of Switzerland. On October 6, 2011, the Russian Federation said that Hungary will pass its seat in favour of Bulgaria for its remaining term (2012-2013). Human Rights and Media Unit 3 Sikkim Manipal University Page No. 120 3.5.2 Subsidiary Bodies of ECOSOC A. ECOSOC Functional Commissions Statistical Commission UN Commission on Human Rights (UNCHR): Disbanded 2006, replaced by the United Nations Human Rights Council (UNHRC), a subsidiary organ of the General Assembly. Commission on Population and Development Commission for Social Development Commission on the Status of Women Commission on Narcotic Drugs Commission on Crime Prevention and Criminal Justice Commission on Science and Technology for Development Commission on Sustainable Development United Nations Forum on Forests B. ECOSOC Regional Commissions Economic Commission for Africa (ECA) Economic and Social Commission for Asia and the Pacific (ESCAP) Economic Commission for Europe (ECE) Economic Commission for Latin America and the Caribbean (ECLAC) Economic and Social Commission for Western Asia (ESCWA) C. ECOSOC Standing Committees Committee for Programme and Coordination Committee on Non-Governmental Organizations Committee on Negotiations with Intergovernmental Agencies D. ECOSOC Ad hoc bodies Ad hoc Open-ended Working Group on Informatics E. Expert bodies composed of governmental experts Committee of Experts on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labelling of Chemicals Human Rights and Media Unit 3 Sikkim Manipal University Page No. 121 Intergovernmental Working Group of Experts on International Standards of Accounting and Reporting United Nations Group of Experts on Geographical Names F. Expert bodies composed of members serving in their personal capacity Committee for Development Policy Committee of Experts on Public Administration Committee of Experts on International Cooperation in Tax Matters Committee on Economic, Social and Cultural Rights Permanent Forum on Indigenous Issues G. Other related bodies Committee for the United Nations Population Award Executive Board of the International Research and Training Institute for the Advancement of Women International Narcotics Control Board Programme Coordinating Board of the Joint United Nations Programme on HIV/AIDS Self-Assessment Questions 7. Fill in the blanks with appropriate words (a) The __________serves as the central forum for discussing international economic and social issues, and for formulating policy recommendations addressed to Member States and the United Nations system. (b) ECOSOCs fifty-four member Governments are elected by the __________for overlapping three-year terms. 8. State whether the following statements are true or false (a) On October 24, 2011, the General Assembly elected ten members of the Economic and Social Commission for 2012-2014. (b) Commission on Population and Development is a subsidiary body of ECOSOC. Human Rights and Media Unit 3 Sikkim Manipal University Page No. 122 3.6 UN Commission on Human Rights The conclusion of 62nd Session in Peru marked the end of the Commission on Human Rights and the beginning of the Human Rights Council, under the General Assembly resolution A/RES/60/251. The Commission which was established by ECOSOC was criticized when it was abolished on 16 June 2006. The representatives of its 53 member-states, observer states and NGOs met annually in Geneva for six weeks during March and April. The commission, which was at the centre of Human Rights issue for a decade, was assisted by the Office of the United Nations High Commissioner for Human Rights (OHCHR). A sub-commission on Promotion and Protection of Human Rights along with several working group, individual experts, representatives and special rapporteurs also assisted it. The United Nations Commission on Human Rights (UNCHR) since 1946 was the central body on human rights issue, until in 2006 it was replaced by the United Nations Human Rights Council . The UNCHR was established at the first meeting of ECOSOC along with the Commission on the Status of Women. It was created under the terms of Article 68 of the Charter. The commission went through two distinct phases: first between 1947 and 1967 which was a period of strict observance of the sovereignty principle. During this period, the Commission followed the policy of absenteeism, which only allowed it to concentrate on creating awareness about human rights and helping countries elaborate treaties, but it did not allow it to investigate or execute violators. Post the decolonization of Africa and Asia, many countries wanted active involvement of the UN in the matters of human right. In 1967, the Commission started the policy of interventionism, which was a result of massive violations in apartheid South Africa. The new policy allowed the Commission to investigate and produce reports on violations. In order to carry out the new policy effectively, in 1970 geographically- oriented work-groups was created. These groups focused on investigation of violations in a specific region or a single country. In 1980s came the theme- oriented work-groups, which specialized in specific types of abuses. However, none of these measures were able to make the Commission as effective as desired. This was primarily because of the politicization and involvement of the human rights violators in the body. In its later years, the body Human Rights and Media Unit 3 Sikkim Manipal University Page No. 123 became highly discredited among human rights activists and governments, and this led to its extinction. 3.6.1 Structure When the Commission was destroyed, it consisted of delegates of 53 member states, elected by the members of ECOSOC. There were no permanent members. Every year in May, election were held for about one-third of the seats of the Commission and the representatives were appointed for a term of three- year. Seats on the Commission were given based on the region, using the procedures of the United Nations Regional Groups. During its last year of service in 2005, the representation by region was as follows: 15 from the African Group, 12 from the Asian Group, 5 from the Eastern European Group, 11 from the Latin American and Caribbean Group, 10 from the Western European and Others Group. At its 60 th session in January 2004, Australia was elected as chair followed by Indonesia in January 2005, Peru in January 2006. The final meeting of Commission was held in Geneva on March 27, 2006. 3.6.2 Special Procedures The commission established 30 special mechanisms to address country-specific situations on issues like freedom of expression and opinion, torture, the right to food and the right to education. Individuals with expertise in particular areas of human rights were appointed to serve as Special Rapporteurs for a maximum of six years. The main activity of these experts is to examine, monitor, advise and publicly report on human rights situations in specific countries or territories. These experts can write to government and report on any violation; they can also conduct fact-based investigation. The special mechanisms are categorised according to: thematic Mandates country Mandates Human Rights and Media Unit 3 Sikkim Manipal University Page No. 124 These include work-groups of upto five individuals who monitor and investigate specific human rights concerns. Three groups were established by the Commission: Working Group on Arbitrary Detention Working Group on Enforced or Involuntary Disappearances Working Group on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination Several member countries of Commission themselves had a doubtful human rights record; because of this the special procedures now comes under the directive of the UNHRC. The commission was also criticised for not engaging in constructive issues and for turning into a platform for political finger pointing. The election of states, with dubious human rights record, as a member was also considered as a mechanism to defend themselves from any charges on human rights issues. Self-Assessment Questions 9. Fill in the blanks with appropriate words (a) The UNCHR was established on __________at the first meeting of ECOSOC. (b) In January 2004, __________was elected as chair of the 60th Session. 10. State whether the following statements are true or false (a) Individuals with expertise in particular areas of human rights were appointed by the chair of the Commission to serve as Special Rapporteurs for a maximum of three years. (b) The UNCHR was a functional commission within the overall framework of the United Nations from 1946 until it was replaced by the United Nations Human Rights Council in 2006. 3.7 UN and National Human Rights Institutions National Human Rights Institutions (NHRI) are central to human rights protection system and are equivalent to the OHCHR. They are also in compliance with Paris Principles. They are involved in promoting, monitoring and implementing Human Rights and Media Unit 3 Sikkim Manipal University Page No. 125 human rights standards at national level. NHRIs with the support of OHCHRs focus on protection of issues like: prevention of torture, degrading treatment, summary executions, arbitrary detention, and disappearance and protection of human of human right activists. They also play an important in spreading awareness about the judiciary, law enforcement and correctional system. OHCHRs play an important role in strengthening and establishing NHRIs along with the National Institutions and Regional Mechanisms Section (NIRMS). 3.7.1 The International Coordinating Committee of NHRIs (ICC) In 1993, Paris Principles Compliant NHRIs constituted the International Coordinating Committee(ICC), in Tunis, Tunisia,with an aim to organise their activities. In 1998, the guidelines for ICC were developed and the membership was extended to four per geographical region making a total of 16 members. Ten years later ICC decided to incorporate the role of NHRIs to better cope with changing environment. It also decided to incorporate itself as a legal entity under Swiss Law with 16 bureau members. In 2009. ICC discussed issues related to the governance of its working groups, sub committees, as well as implementation of Nairobi Declaration, the Durban Review Conference and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The meetings of sub-committee on Accreditation (SCA), bureau meetings and general meetings of the Committee are held under protection and cooperation of OHCHR. The SCA consists of four members from each geographical region which includes: Africa, Americas, Asia Pacific and Europe. The Bureau consists of the following NHRIs: The New Zealand Human Rights Commission ( ICC Chair) Kenya National Commission on Human Rights ( ICC Secretary ) The Conseil Consultatif des Droits de LHomme du Maroc or Chair of the African Network of NHRIs South African Human Rights Commission National Commission for Human Rights of Togo Comisin Nacional para los Derechos Humanos of Mexico Ombudsman of Ecuador Chair of the NHRIs of the Americas Procuraduria de Defensa de los Derechos Humanos of El Salvador Defensora del Pueblo de la Nacin Argentina Australian Human Rights Commission Chair of the Asia Pacific Network of NHRIs Human Rights and Media Unit 3 Sikkim Manipal University Page No. 126 National Human Rights Commission of India National Centre for Human Rights of Jordan Scottish Human Rights Commission Chair of the European Group of NHRIs The Commission consultative des droits de lhomme of Luxembourg German Institute for Human Rights The Office of the Ombudsman of Croatia 3.7.2 National Institutions for the Promotion and Protection of Human Rights The Sub-Committee on Accreditation (SCA) of ICC of National Institutions for the Promotion and Protection of Human Rights is authorised to review and analyse accreditation applications and also make suggestions to the 16 member- bureau on the compliance of applicants with Paris Principles. OHCHR is the permanent member of ICC and works as its secretariat; rest other members are nominated by regional groups and this is renewed every three years. 9th International Conference of NHRIs In 2008, between 21 and 24 October the 9th International Conference for National Human Rights Institutions was held in Nairobi, Kenya which was organised by the Kenya National Commission on Human Rights, the ICC and OHCHR; and was supported by the Organisation Internationale de la Francophonie, the Swedish International Development Corporation Agency (SIDA) and UNDP. The topic of the 9th Conference was: National Human Rights Institutions and the administration of justice and itw as attended by over 120 representatives of NHRIs from across the world. The conference also unanimously accepted the Nairobi Declaration which furnished NHRI with guidelines in performing their role in the administration of justice. 10th International Conference of NHRIs In 2010, between 8 and 10 October the 10th International Conference of National Human Rights Institutions on Business and Human Rights: The Role of NHRIs was held in Edinburgh, Scotland. The conference was organised by the Scottish Human Rights Commission, the Scottish Parliament, OHCHR and ICC. The conference which was attended by about 250 delegated, adopted the Edinburgh Declaration. The delegates stressed on promoting its Protect, Respect, Remedy framework and on the need to work in collaboration with the special representative on human rights and transnational corporation and other business Human Rights and Media Unit 3 Sikkim Manipal University Page No. 127 enterprises. The NHRI committed itself to empowering human rights defenders and civil society participation in business and human rights and carry on activities for creation of focal points, supporting victims of corporate abuse. Guidance Notes for NHRIs NHRIs can participate in the international human rights system and follow up on results and recommendations at the national level. The role of NHRI is three- fold: (iv) United Nations human rights treaty bodies; (v) the UPR mechanism of the Human Rights Council, and; (vi) Special Procedures of the Human Rights Council. Fellowship for NHRI staff In 2008, OHCHR introduced a fellowship programmes to allow A-status members of National Institutions and Regional Mechanisms Section (NIRMS) to work for six months and gain experience with UNs human right system. The programme allows OHCHR to find experts and get in direct contact with NHRIs global staff. Self-Assessment Questions 11. Fill in the blanks with appropriate words (a) The 9th International Conference for National Human Rights Institutions was held in _______, from 21 to 24 October 2008. (b) NHRIs have clearly defined roles and opportunities to participate in the international human rights system and to follow-up to results and recommendations at the _________level. 12. State whether the following statements are true or false: (a) The 10th International Conference of National Human Rights Institutions on the theme of Business and Human Rights: the Role of NHRIs was held in Edinburgh, Scotland, from 8 to 10 October 2010. (b) The National Institutions and Regional Mechanisms Section (NIRMS) is the main entry point for OHCHRs efforts for the establishment and strengthening of NHRIs, as well as for the cooperation with NHRIs. Human Rights and Media Unit 3 Sikkim Manipal University Page No. 128 3.8 Regional Commissions on Human Rights Regional commissions on human rights strengthen respect not only for human rights but for rule of law. Regional commissions assist governments by providing them indispensable support in the form of legal services 3.8.1 African Human Rights Treaties and their Implementation Human rights evolved in African with the founding of the Organization of Unity (OAU) in 1963. The OAU was based on the principles of non-interference and state sovereignty. The decolonization of Africa was one of its main motives. Africa saw a number of laws being formulated in the form of Charters, such as The African Charter on Human and Peoples Rights, 1981, which has been discussed in detail below. The African Charter on Human and Peoples Rights, 1981 The adoption of the African Charter on Human and Peoples Rights in 1981 marked the beginning of a new era in the field of human rights in Africa. It was enacted on 21 October 1986, and as of 29 April 2002 had 53 state members. Although strongly inspired by the Universal Declaration of Human Rights, the two International Covenants on human rights and the regional human rights conventions, the African Charter reflects a high degree of specificity due in particular to the African conception of the term right and the place it accords to the responsibilities of human beings. The Charter contains a long list of rights, covering a wide spectrum not only of civil and political rights, but also of economic, social and cultural rights. The African Charter further created the African Commission on Human and Peoples Rights, to promote human and peoples rights and ensure their protection in Africa (Article 30). In 1998, the Protocol to the Charter on the Establishment of an African Court of Human Rights was also adopted, but, as of 30 April 2002, this Protocol had not yet entered into force, having secured only 5 of the required 15 ratifications. Lastly, work on the elaboration of an additional protocol concerning the rights of women in Africa is in progress within the framework of the African Commission on Human and Peoples Rights, the Commission being assisted in this task by the Office of the United Nations High Commissioner for Human Rights. The undertakings of the state parties: The States parties to the Charter shall recognize the rights, duties and freedoms enshrined [therein] and shall undertake to adopt legislative or other measures to give effect to them (Article 1). Human Rights and Media Unit 3 Sikkim Manipal University Page No. 129 It is further provided that they shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter, and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood (Article 25). Moreover, the States parties shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the ... Charter (Article 26). These two latter provisions thus emphasize the need for education, information and an independent administration of justice in order to ensure effective protection of human rights. Lastly, several provisions of the Charter are also couched in the form of duties of the States parties to ensure certain rights, such as, for instance, the promotion and protection of morals and traditional values recognized by the community ( Article17(3)) and the right to development (Article 22(2)). The individual and collective rights recognized: The African Charter on Human and Peoples Rights recognizes the following civil, political, economic, social and cultural rights of individual human beings, in particular: the right to freedom from discrimination on any grounds in the enjoyment of the rights and freedoms guaranteed in the CharterArticle 2; the right to equality before the law and to equal protection of the law Article 3; the right to respect for ones life and personal integrityArticle 4; the right to respect for ones inherent dignity as a human being, including freedom from slavery, the slave trade, torture, cruel, inhuman or degrading punishment and treatmentArticle 5; the right to liberty and to the security of ones person; freedom from arbitrary arrest or detentionArticle 6; the right to have ones cause heard, and the right to an appeal to competent national organs against acts of violating ones human rights; the right to be presumed innocent until proved guilty by a competent court or tribunal; the right to defence; and the right to be tried within a reasonable time by an impartial tribunal; freedom from ex post facto lawsArticle 7; freedom of conscience, the profession and free practice of religionArticle 8; Human Rights and Media Unit 3 Sikkim Manipal University Page No. 130 the right to receive information and the right to express and disseminate ones opinions within the law. Article 9; the right to freedom of association (Article 10) and the right to assemble freely with othersArticle 11; the right to freedom of movement and residence within the borders of a State; the right to leave any country including ones own and to return to ones country; the right to asylum in case of persecution; prohibition of mass expulsionsArticle 12; the right to participate freely in the government of ones country, either directly or through freely chosen representatives; the right to equal access to the public service of ones country and to access to public property and servicesArticle 13; the right to propertyArticle 14; the right to work and the right to equal pay for equal workArticle 15; the right to enjoy the best attainable state of physical and mental health Article 16; the right to education, and freely to take part in the cultural life of ones countryArticle 17; the right of the family, the aged and the disabled to special measures of protectionArticle 18. Next, the African Charter recognized the following rights of peoples, namely: the right of peoples to equalityArticle 19; the right to existence of all peoples, including the right to self-determination; the right of all peoples to assistance in their liberation struggle against foreign domination, be it political, economic or cultural. Article 20; the right of all peoples freely to dispose of their wealth and natural resourcesArticle 21; the right of all peoples to their economic, social and cultural development Article 22; the right of all peoples to national and international peace and security Article 23; the right of all peoples to a general satisfactory environment favourable to their development. Article 24. Human Rights and Media Unit 3 Sikkim Manipal University Page No. 131 The individual duties: Without providing any details, Article 27(1) deals with individual duties toward certain groups by stipulating, in general terms only, that every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community. Next, Article 28 concerns the individuals duty towards other individuals, providing that every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance. Lastly, Article 29 enumerates several other specific individual duties, such as the duties: to preserve the harmonious development of the familyArticle 29(1); to serve ones national communityArticle 29(2); not to compromise the security of the StateArticle 29(3); to preserve and strengthen the social and national solidarityArticle 29(4); to preserve and strengthen the national independence and territorial integrity of ones countryArticle 29(5); to work to the best of ones abilities and competence, and to pay taxes Article 29(6); The implementation mechanism The African Commission on Human and Peoples Rights comprises of eleven members serving in their individual capacity-Article 31. It has two-fold function, first, of promoting human and peoples rights, and, second, of protecting these rights (Article 30), including the right to receive communications both from States and from other sources. As to the function of promoting human and peoples rights, the Commission shall, in the first place, in particular, collect documents, undertake studies and researches on African problems, organize conferences, encourage domestic human rights institutions, and, should the case arise, give its views or make recommendations to Governments; second, it shall formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples rights. And lastly, it shall cooperate with other African and international institutions concerned with the promotion and protection of these rights (Article 45(1)). With regard to the Commissions function of ensuring the protection of human and peoples rights under conditions laid down by the ... Charter (Article 45(2)), the Commission not only has competence to receive communications Human Rights and Media Unit 3 Sikkim Manipal University Page No. 132 from States and other sources, but is also authorized to interpret all the provisions of the ... Charter at the request of a State Party, an institution of the OAU or an African Organization recognized by the OAU (Article 45(3)). Inter-State communications If a State party has good reasons to believe that another State Party to this Charter has violated the provisions thereof, it may draw, by written communication, the attention of that State to the matter (Article 47). The State to which the communication is addressed has three months from the receipt of the communication to submit a written explanation. If the matter has not been settled to the satisfaction of the two States involved through bilateral negotiation or by any other peaceful procedure, either State can bring it to the attention of the Commission (Article 48). Notwithstanding these provisions, a State party can refer the matter directly to the Commission (Article 49). However, the Commission can only deal with the matter after all domestic remedies have been exhausted in the case, unless ... the procedure of achieving these remedies would be unduly prolonged (Article 50). The States concerned may be represented before the Commission and submit written and oral statements (Article 51(2)). When in possession of all necessary information and after having tried all appropriate means to reach an amicable solution based on the respect of Human and Peoples Rights, the Commission shall prepare a report stating the facts and its findings, which shall be sent to the States concerned and to the Assembly of Heads of State and Government (Article 52). In transmitting its report, the Commission may make to the aforesaid Assembly such recommendations as it deems useful (Article 53). Communications from sources other than those of States parties The Charter does not specify whether the Commission is competent to deal with individual complaints, as such, but merely provides that, before each session of the Commission, its Secretary shall make a list of the communications other than those of States Parties ... and transmit them to the members of the Commission, who shall indicate which communication should be considered by the Commission (Article 55(1)). However, certain criteria have to be fulfilled before the Commission can consider the case. The criteria are as follows: (i) the communication must indicate the author; (ii) it must be compatible both with the Charter of the OAU and with the African Charter on Human and Peoples Rights; (iii) it must not be written in disparaging or insulting language; Human Rights and Media Unit 3 Sikkim Manipal University Page No. 133 (iv) it must not be based exclusively on news disseminated through the mass media; (v) it must be submitted only after all domestic remedies have been exhausted, unless it is obvious that this procedure is unduly prolonged; (vi) it must be submitted within a reasonable period from the time local remedies are exhausted; (vii) the communications must not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, the Charter of the OAU or the African Charter on Human and Peoples Rights (Article 56). There is no specific provision in the Charter allowing individuals or groups of individuals to appear in person before the Commission. Before a substantive consideration is made of a communication, it must be brought to the attention of the State concerned (Article 57). Subsequently, when it appears after deliberations of the Commission that one or more communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of human and peoples rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases; the latter may then request the Commission to undertake an in-depth study of these cases and make a factual report, accompanied by its findings and recommendations (Article 58(1) and (2)). Lastly, the Charter provides a procedure for emergency cases which shall be submitted by the Commission to the Chairman of the Assembly, who may request an in-depth study (Article 58(3)). Periodic reports The State parties to the Charter also undertake to submit, every two years, a report on the legislative or other measures taken with a view to giving effect to the terms of the Charter (Article 62). Although, the Charter provides no explicit procedure for the examination of these periodic reports, the African Commission on Human and Peoples Rights has proceeded to examine these reports in public sessions. 3.8.2 American Human Rights Treaties and their Implementation The American Convention on Human Rights, 1969 are also commonly called the Pact of San Jose, Costa Rica, as it was adopted in that capital city. It was enacted on 18 July 1978 and, as of 9 April 2002, had 24 States parties, following the denunciation of the treaty by Trinidad and Tobago on 26 May 1998. The Convention reinforced the Inter-American Commission on Human Rights, which Human Rights and Media Unit 3 Sikkim Manipal University Page No. 134 since 1960 had existed as an autonomous entity of the Organization of American States. It became a treaty-based organ which, together with the Inter-American Court of Human Rights, shall have competence with respect to matters relating to the fulfilment of the commitments made by the States Parties to the Convention (Article 33). In 1988, the General Assembly of the OAS further adopted the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, also called the Protocol of San Salvador. This Protocol develops the provisions of Article 26 of the Convention whereby the States parties in general terms undertake to adopt measures, both internally and through international co-operation, ... with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires. This Protocol entered into force on 16 November 1999 and, as of 9 April 2002, had 12 States parties. Finally in 1990, the General Assembly also adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which entered into force on 28 August 1991. The States parties to this Protocol shall not apply the death penalty in their territory to any person subject to their jurisdiction (Article 1). No reservations may be made to this Protocol, although States parties may declare at the time of ratification or accession that they reserve the right to apply the death penalty in wartime in accordance with international law, for extremely serious crimes of a military nature (Article. 2(1)). As of 9 April 2002 this Protocol had 8 States parties. The undertakings of the States parties: The States parties to the American Convention on Human Rights undertake to respect the rights and freedoms recognized [therein] and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination on certain cited grounds (Article 1). As defined by the Inter-American Court of Human Rights, the legal duty of the States parties to the Convention to respect and to ensure is multi-faceted and goes to the very heart of the entire State structure, including the particular conduct of the Governments themselves. The rights recognized: As to the civil and political rights guaranteed by the Convention, they comprise the following: the right to juridical personalityArticle 3; the right to life, including careful regulation of the death penalty from an abolitionist perspectiveArticle 4; Human Rights and Media Unit 3 Sikkim Manipal University Page No. 135 the right to humane treatment, including freedom from torture and cruel, inhuman or degrading treatment or punishmentArticle 5; freedom from slavery, servitude, forced and compulsory labourArticle 6; the right to personal liberty and security, including freedom from arbitrary arrest or detentionArticle 7; the right to a fair trialArticle. 8; the right to freedom from ex post facto lawsArticle 9; the right to compensation in the event of a miscarriage of justiceArticle 10; the right to privacyArticle 11; the right to freedom of conscience and religionArticle 12; the right to freedom of thought and expressionArticle 13; the right of reply in case of dissemination of inaccurate and offensive statementsArticle 14; the right to peaceful assemblyArticle 15; the right to freedom of associationArticle 16; the right to marry freely and to found a familyArticle 17; the right to a nameArticle 18; the rights of the childArticle 19; the right to a nationalityArticle 20; the right to propertyArticle 21; the right to freedom of movement and residenceArticle 22; the right to participate in governmentArticle 23; the right to equality before the law and equal protection of the lawArticle 24; the right to judicial protectionArticle 25 Apart from recognizing these civil and political rights, the American Convention on Human Rights also contains an article whereby the States parties in general terms undertake to adopt measures, both internally and through international co-operation, ... with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Human Rights and Media Unit 3 Sikkim Manipal University Page No. 136 Charter of the Organization of American States as amended by the Protocol of Buenos Aires (Article 26). As the title to this article indicates, it is more concerned with the Progressive development of these rights than with their immediate enforcement through judicial means. However, with the entry into force of the Additional Protocol to the Convention in the Area of Economic, Social and Cultural Rights, these rights have been given a more detailed legal definition, although the full observance thereof is still to be achieved progressively (Article 1). The Additional Protocol recognizes the following economic, social and cultural rights: The principle of non-discrimination in the exercise of the rights set forth in the Protocol-Article 3; the right to workArticle 6; the right to just, equitable and satisfactory conditions of workArticle. 7; trade union rightsArticle 8; the right to social security Article 9; the right to health Article 10; the right to a healthy environment Article 11; the right to food Article 12; the right to education Article 13; the right to the benefits of culture Article 14; the right to the formation and protection of families Article 15; the rights of children Article 16; the right of the elderly to protection Article 17; the right of the handicapped to protection Article 18. The implementation mechanism: The inter-American system for the protection of human rights comprises, in the first instance, the Inter-American Commission on Human Rights and, in the second instance, the Inter-American Court of Human Rights for those States parties having accepted its jurisdiction. In the present context the procedures concerned will be explained in general terms only: The competence of the Inter-American Commission on Human Rights: The Inter-American Commission is composed of seven members elected in their personal capacity (Articles. 34 and 36(1)) whose main functions are to promote respect for and defence of human rights by, inter alia, (1) developing an awareness of human rights in the Americas; (2) making recommendations Human Rights and Media Unit 3 Sikkim Manipal University Page No. 137 to Governments of the member States, when it considers such action advisable; (3) preparing such studies and reports as it considers advisable in the performance of its duties; and, (4) taking action on petitions and other communications pursuant to its authority under the Convention (Article 41(a), (b), (c) and (f)). The right of individual petition to the Commission is mandatory under the Convention, according to which any person or group of persons, or any non- governmental entity legally recognized in one or more member States of the Organization [of American States] may lodge petitions ... containing denunciations or complaints of violation of this Convention by a State Party (Article 44). On the other hand, inter-State complaints require a specific declaration whereby the State concerned recognizes the competence of the Commission to examine communications brought against another State party having made the same declaration (Article 45(1) and (2)). The admission of an individual petition or inter-State communication submitted to the Commission is subject to several requirements, such as the exhaustion of domestic remedies rule (Article 46(1) (a)). Moreover, the petition or communication must be lodged within six months from the date on which the alleged victim was notified of the final judgement, and the subject of the complaint must not be pending in another international proceeding for settlement (Article 46(1) (b) and (c)). Individual petitions must of course also contain information such as the name, address and signature of the alleged victim or his or her legal representative (Article 46(1) (d)). The exhaustion of domestic remedies rule is not, however, applicable (a) where the domestic legislation does not afford due process of law for the protection of the right or rights that have allegedly been violated; (b) where the alleged victim has been denied access to domestic remedies; and (c) where there has been unwarranted delay in rendering a final judgement (Article 46(2)). If a petition or communication does not fulfil these conditions or if, for instance, it is manifestly groundless, the Commission declares the petition or communication concerned inadmissible (Article 47). Otherwise, it shall be declared admissible, which implies that the Commission will proceed to request more information from the parties in order to be enabled to make a more in- depth analysis of the complaints (Article 48(1) (a)). It can also make an on-the- spot investigation and hear oral statements in addition to written submissions (Article 48(1) (d) and (e)). At this stage the Commission can also declare the petition or communication inadmissible or out of order or unsubstantiated (Article 48(1) (c)). Alternatively, it will place itself at the disposal of the parties concerned Human Rights and Media Unit 3 Sikkim Manipal University Page No. 138 with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in this Convention (Article 48(1)(f)). If a settlement is not reached, the Commission will draw up a report setting forth the facts and stating its conclusions, a report that will be submitted to the States parties, which shall not be at liberty to publish it (Article 50(1) and (2)). If, after a prescribed period, the matter has not been settled or submitted to the Court, the Commission may set forth its opinion and conclusions concerning the question submitted for its consideration and may in cases where the stateconcerned fails to take adequate measures, ultimately decide to publish its report (Article 51). With regard to those OAS Member States which have not yet ratified the American Convention on Human Rights, the Commission is competent to receive petitions alleging violations of the American Declaration on the Rights and Duties of Man. Another interesting aspect of the Commissions powers is its competence to request advisory opinions from the Inter-American Court of Human Rights (Article 64). The important Advisory Opinion on Habeas Corpus in Emergency Situations was thus given by the Court following a request by the Commission. The competence of the Inter-American Court of Human Rights As of 16 April 2001, the compulsory jurisdiction of the Court had been accepted by 21 States. The Court consists of seven judges elected in their individual capacity (Article 52). It has its Secretariat in San Jos, Costa Rica. Before the Court can hear a case, the procedure before the Commission must be completed (Article 61(2)). In cases of extreme gravity and urgency, the Court shall adopt such provisional measures as it deems pertinent, and, at the request of the Commission, it may in fact also do this with respect to cases not yet submitted to it (Article 63(2)). The Courts judgments are final and the States parties undertake to comply with the terms thereof in any case to which they are parties (arts. 67 and 68(1)). The enforcement mechanism under the Additional Protocol in the Area of Economic, Social and Cultural Rights differs from the procedures under the Convention in that the States parties only undertake to submit periodic reports on the progressive measures they have taken to ensure due respect for the rights set forth therein (Article 19(1) of the Protocol). Only with regard to the right to organize and join trade unions (Article 8(a)) and the right to education (Article 13) does the Protocol provide for application of the complaints procedure before the Commission and Court, and then only in cases where the alleged violation is directly attributable to a State party (Article 19(6)). Both the Commission and the Court have dealt with a considerable number of cases, Human Rights and Media Unit 3 Sikkim Manipal University Page No. 139 which can be found in their respective annual reports. The annual report of the Inter-American Commission on Human Rights also provides important information about the Commissions activities in general, which reach far beyond the framework of the American Convention on Human Rights. 3.8.3 European Human Rights Treaties and their Implementation The European Convention on Human Rights, 1950, and its Protocols Nos. 1, 4, 6 and 7 The European Convention of Human Rights was adopted by the Council of Europe in 1950, and entered into force on 3 September 1953. As of 29 April 2002, it had 43 States parties. The Convention originally created both a European Commission and a European Court of Human Rights entrusted with the observance of the engagements undertaken by the High Contracting Parties to the Convention, but with the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the control machinery was restructured so that all allegations are now directly referred to the European Court of Human Rights in Strasbourg, France. This Court is the first, and so far only, permanent human rights court sitting on a full-time basis. The rights protected by the Convention have been extended by Additional Protocols Nos. 1, 4, 6 and 7, all of which will be dealt with below. Protocol No. 12 concerning the prohibition of discrimination was opened for signature on 4 November 2000 in Rome, in the context of the fiftieth anniversary celebrations of the Convention itself, which was signed in the Italian capital on 4 November 1950. Finally, Protocol No. 13 was opened for signature in Vilnius on 3 May 2002. This protocol concerns the abolition of the death penalty in all circumstances. The undertakings of the States parties: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention (Article 1). This means, inter alia, that they also have to provide everyone whose rights and freedoms guaranteed by the Convention have been violated, with an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity (Article 13). The rights guaranteed: The European Convention guarantees the following civil and political rights: the right to lifeArticle 2; the prohibition of torture, inhuman or degrading treatment or punishment Article 3; Human Rights and Media Unit 3 Sikkim Manipal University Page No. 140 the prohibition of slavery, servitude, and forced or compulsory labour Article 4; the right to liberty and securityArticle 5; the right to a fair trialArticle 6; prohibition of ex post facto lawsArticle 7; the right to respect for ones private and family lifeArticle 8; the right to freedom of thought, conscience and religionArticle 9; the right to freedom of expressionArticle 10; the right to freedom of assembly and associationArticle 11; the right to marry and to found a familyArticle 12; the right to an effective remedyArticle 13; prohibition of discriminationArticle 14. Protocol No. 1 was adopted in 1952 and entered into force on 18 May 1954. As of 29 April 2002 it had 40 States parties. This Protocol provides the following rights and undertakings between the States parties thereto: the right to peaceful enjoyment of ones possessionsArticle 1; the right to education and the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictionsArticle 2; the holding of free elections at reasonable intervals by secret ballotArticle 3. Protocol No. 4 of 1963 entered into force on 2 May 1968. As of 29 April 2002 it had 35 States parties. Protocol No. 4 added the following rights to be protected: the right not to be deprived of ones liberty merely on the ground of inability to fulfil a contractual obligationArticle 1; the right to freedom of movement and of residence; the right to leave any country, including ones ownArticle 2; the right not to be expelled from the country of which one is a national and the right not to be refused entry into the State of which one is a national Article 3; prohibition of the collective expulsion of aliensArticle 4. Protocol No. 6 of 1983 came into force on 1 March 1985. As of 29 April Human Rights and Media Unit 3 Sikkim Manipal University Page No. 141 2002 it had 40 States parties. Protocol No. 6 concerns the abolition of the death penalty (Article 1), but a State may nonetheless make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war (Article 2). No derogations can be made from the provisions of these articles under Article 15 of the Convention, nor can any reservations be made to this Protocol (Articles 3-4). Protocol No. 7, adopted in 1984, entered into force on 1 November 1988. As of 29 April 2002 there were 32 States parties to this Protocol, which extended the scope of the Convention by providing for the following additional protection: certain protections against arbitrary expulsion of aliens lawfully resident in the territory of the High Contracting PartiesArticle 1; the right to appeal against a criminal convictionArticle 2; the right to compensation in case of a miscarriage of justiceArticle 3; the right not to be tried again for the same offence within the jurisdiction of the same Statea provision which cannot be derogated from under Article 15 of the ConventionArticle 4; and equality of rights and responsibilities between spouses as to marriage, during marriage and in the event of its dissolutionArticle 5. As indicated above, Protocol No. 12 to the European Convention provides a general prohibition of discrimination, which is independent of the other rights and freedoms guaranteed by the Convention. According to Article 1(1) of the Protocol, the enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Article 1(2) of the Protocol specifies that no one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. As of 29 April 2002, however, this Protocol had not entered into force, having received only one out of the necessary ten ratifications. The implementation mechanism: As from 1 November 1998, when the restructuring of the control machinery established under the Convention entered into force, all alleged violations of the rights and freedoms guaranteed by the Convention and its Protocols are referred directly to the European Court of Human Rights, which shall ensure the observance of the engagements undertaken by the High Contracting Parties (Article 19). The Court is permanent, and consists of a number of judges equal to that of the Contracting Parties, that is, 43 as of 30 April 2002 (Article 20). The Court can sit in committees of three judges, in Human Rights and Media Unit 3 Sikkim Manipal University Page No. 142 Chambers of seven judges or in a Grand Chamber of seventeen judges (Article 27(1)). Apart from being competent to receive and examine inter-State complaints (Article 33), the Court may receive applications from any person, non- governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto (Article 34). The High Contracting Parties undertake not to hinder in any way the effective exercise of this right (Article 34, in fine). The right to bring inter-State and individual complaints to the Court does not depend on any specific act of acceptance. The Court may not, however, deal with an application of any kind unless domestic remedies have been exhausted and the application has been submitted within six months from the date on which the final decision was taken (Article 35(1)). Further criteria of admissibility exist with regard to individual applications, which must not, for instance, be anonymous or substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information (Article 35(2)). The Court decides on the admissibility and merits of the case and, if necessary, undertakes an investigation. After having declared a case admissible, it also places itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the protocols thereto (Article 38(1)(b)). Hearings before the Court are public, unless it decides otherwise in exceptional circumstances (Article 40). Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional circumstances, request that the case be referred to a Grand Chamber. If the request is accepted, the Grand Chamber shall decide the case by means of a judgment that shall be final (Articles 43-44). Otherwise, the judgment of the Chamber will be final when the parties declare that they have no intention of requesting referral to the Grand Chamber; or three months after the judgment in the absence of such a request; or, finally, when the request for referral has been rejected (Article 44). The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties; the execution of the final judgment is supervised by the Committee of Ministers of the Council of Europe (Article 46). Human Rights and Media Unit 3 Sikkim Manipal University Page No. 143 Activity 2 Research the National Human Rights Commission of India on the Internet and give an example of their recent achievement. Self-Assessment Questions 13. Fill in the blanks with appropriate words: (a) The African Charter on Human and Peoples Rights was adopted in ______. (b) The African Commission on Human and Peoples Rights consists of ___________members serving in their individual capacity. 14. State whether the following are true or false: a) The American Convention on Human Rights, 1969, was also commonly called the Pact of San Jos, Costa Rica. (b) The European Convention on Human Rights was adopted by the Council of Europe in 1935. 3.9 Summary Let us recapitulate the important concepts discussed in this unit: Specialized agencies are autonomous bodies that work with the UN and with each other. Some of the specialized agencies of the UN are FAO, ICAO, IFAD, ILO, IMO, IMF, ITU, UNESCO, UNIDO and UPU. The United Nations General Assembly (UNGA/GA) is one of the five principal organs of the United Nations with equal representation from the member nations. The General Assembly meets under its president or Secretary-General in regular yearly sessions. The General Assembly is the main planning body of the UN that takes decisions on critical issues such as budget, peace and security, and admission of new members that requires a two-thirds majority. Human Rights and Media Unit 3 Sikkim Manipal University Page No. 144 The Security Council has primary responsibility, under the Charter, for the maintenance of international peace and security. The Security Council consists of five permanent members namely China, France, Russian Federation, United Kingdom and United States of America, and ten non-permanent members. In 1945, India joined the UN and since then it has been the third largest contributor of troops to the UN Peace keeping missions and main contributors to the UN budget. Under United Nations Charter, the United Nations Economic and Social Council (ECOSOC) was established as the primary body to manage economic and social work of the specialized agencies of the UN, functional commissions and regional commissions. Fourteen specialized agencies, five regional commissions and 11 UN funds and programmes also report to ECOSOC. To fulfill its responsibilities, ECOSOC can consult business sector representatives, intellectuals and around 3,200 registered non- governmental Organizations. Since the inception of the UN in 1945, ECOSOC has undergone over a dozen proposals for reforms. The conclusion of 62nd Session in Peru marked the end of the Commission on Human Rights and the beginning of the Human Rights Council, under the General Assembly resolution A/RES/60/251. When the Commission was destroyed, it consisted of delegates of 53 member states, elected by the members of ECOSOC. Compliant with the Paris Principles, National Human Rights Institutions (NHRI) are central to human rights protection system and are equivalent to the Office of the High Commissioner for Human Rights (OHCHR). The adoption of the African Charter on Human and Peoples Rights in 1981 marked the beginning of a new era in the field of human rights in Africa. The African Commission on Human and Peoples Rights comprises of eleven members serving in their individual capacity-Article 31. The State parties to the Charter also undertake to submit, every two years, a report on the legislative or other measures taken with a view to giving effect to the terms of the Charter (Article 62). Human Rights and Media Unit 3 Sikkim Manipal University Page No. 145 The European Convention of Human Rights was adopted by the Council of Europe in 1950, and entered into force on 3 September 1953. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional circumstances, request that the case be referred to a Grand Chamber. 3.10 Glossary United Nations: International organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace General Assembly: One of the five principal organs of the United Nations and the only one in which all member nations have equal representation Security Council: Permanent peacekeeping organ of the United Nations, composed of five permanent members (China, France, Russia, the United Kingdom, and the United States) and ten elected members Sustainable Development: Pattern of resource use that aims to meet human needs while preserving the environment so that these needs can be met not only in the present but also for generations to come Interventionism: Political term for significant activity undertaken by a state to influence something not directly under its control 3.11 Terminal Questions 1. Briefly discuss the various organizations of United Nations in relations to human rights development. 2. Discuss the function and powers of the General assembly. 3. Discuss the establishment, functions and powers of the Security Council of UN. 4. Discuss the establishment, functions and powers of the ECOSOC. 5. Explain the subsidiary bodies of ECOSOC. 6. Briefly state about the UN Commission on Human Rights. Human Rights and Media Unit 3 Sikkim Manipal University Page No. 146 3.12 Answers Answers to Self Assessment Questions 1. (a) Food and Agriculture Organization; (b) World Health Organization (WHO) 2. (a) False; (b) True 3. (a) Five; (b) 1945 4. (a) False; (b) True 5. (a) Security Council; (b) Seven 6. (a) True; (b) False 7. (a) Economic and Social Council (ECOSOC); (b) General Assembly 8. (a) False; (b) True 9. (a) 10 December 1946; (b) Australia 10. (a) False; (b) True 11. (a) Nairobi (b); National 12. (a) True; (b) True 13. (a) 1981; (b) Eleven 14. (a) True; (b) False Answers to Terminal Questions 1. Refer to Section 3.2 2. Refer to Section 3.3 3. Refer to Section 3.4 4. Refer to Section 3.5 5. Refer to Section 3.5.2 6. Refer to Section 3.6 Human Rights and Media Unit 3 Sikkim Manipal University Page No. 147 3.13 Further Reading 1. Freeman, Melvyn, Soumitra Pathare. WHO resource book on mental health, human rights and legislation. Geneva: World Health Organization, 2005. 2. Malone, David. The UN Security Council: From the Cold War to the 21 st century. Colorado: Lynne Rienner Publishers, 2004. 3. MacFarlane, S. Neil, Yuen Foong Khong. Human Security and the UN: A Critical History. Bloomington: Indiana University Press, 2006. Unit 4 State of Human Rights in India Structure 4.1 Introduction Objectives 4.2 Genesis of Human Rights in India 4.3 Rights of Minorities 4.4 Human Rights in India 4.5 Regional Analysis 4.6 A Balance Sheet of Human Rights in India 4.7 Judicial Protection for Human Rights 4.8 Summary 4.9 Glossary 4.10 Terminal Questions 4.11 Answers 4.12 Further Reading 4.1 Introduction The awareness of human rights had emerged many years ago, along with the emergence of the concept of natural rights that are associated with the law of nature. The main principle of a democratic and representative government is to safeguard the rights of the citizens. This unit discusses the right to equality, political rights, rights related to a person and right to privacy that every citizen of India is entitled to. The state of affairs of human rights in India is very composite. This is due to the countrys large size and its extreme diversity. It is a developing country and a sovereign, secular and democratic republic. India in the past was a colony of western countries. Each citizen of India has several fundamental rights given by the constitution of the country. Freedom of speech is one of the basic rights of each citizen. Other rights are the freedom to move anywhere within the nation and also outside the nation and the right to separate the judiciary from the executive. In this unit, you will study about the rights of minorities as paraphrased in the Constitution of India. The study of human rights in India has been categorized under human rights in ancient India, human rights in Islamic era, human rights in British India and human rights in India after independence. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 150 The unit also gives a balance sheet of human rights with respect to the constituent assembly, an overview of the judicial protection given to human rights. Objectives After studying this unit, you should be able to: Discuss the genesis of human rights in India Identify the rights of minorities in India Evaluate human rights in India Explain the judicial protection for human rights 4.2 Genesis of Human Rights in India The perception of human rights is as ancient as the perception of natural rights that are focused around natural law. The term, human rights, has originated from international charters and conventions, particularly after the World War II. 4.2.1 Right to Equality The right to equality is one of the six rights that have been granted to us. In the Indian Constitution this right has been described in the Article 14 of the Constitution of India as: 1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex and place of birth or any of them. 2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment; or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. 3. Nothing in this article shall prevent the State from making any special provision for women and children. 4. Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 151 Equal prospects for every one All citizen have the same rights when it comes to getting a job in any government office The right to employment in any State office is not dependent on the religion, race, sex, descent, residence or place of birth of the candidate. All will be treated on equal footing. Nothing can stop the parliament from passing laws regarding any class of employment to any particular office of the Government, whether the post is in the State, the union territory or local body. The Parliament cannot be stopped from making any changes with respect to the clause of which state or union territory the candidate resides in with regard to a particular employment before the appointment has been made. The Government has every right, irrespective of this article, to make provisions for promoting certain sections of the citizens like schedules castes and scheduled tribes, who according to the state have not so far had adequate opportunities for gainful employment in the state. The state has every right irrespective of this article to fill any unfilled posts during the said year using the reservation policies as stated in clause (4) or clause (4A), in a separate category, in the coming year or years. The separately created divisions of posts will not be taken into account for that particular years vacancies for fulfilling the requirement of the stipulated reservation quota, and will be taken separate from the total jobs for that year. Nothing in this article affects any legal provision which states that when a person is appointed to a particular post and that post deals with any specific religion or institution serving some denomination he or she shall belong to that particular religion or institution that serves the particular section of the citizens. 4.2.2 Political Rights Political rights are those rights by which citizens are given share in the political life of the community, including that of the management of government. They generally consist of the following rights: Right to vote It is an important political right in a democracy. It implies that every adult citizen has the right to express his opinion by casting a vote at the time of election. Aliens, bankrupts, minors and certain criminals are often denied the right to vote. However, at present there is a tendency favouring universal adult suffrage. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 152 Right to be elected This implies that the law should not forbid any citizen from holding any of public offices. One can contest in the election and represent himself in the government. The State can, of course prescribe certain minimum qualifications for the representatives. This is the gift of democracy, which gives equal right to all citizens. Right to public offices No citizen should be prohibited to hold any public office under the State, on the grounds of religion, caste, race, sex or language or any of them. All are equally eligible for the highest office. This is a gift of democracy which gives equal right to all citizens. Right to petition Citizens have the right to send petitions individually or collectively to the competent authority, either executive or legislative, for the redressal of grievances. In a democracy, the rulers cannot ignore the legitimate grievances of the people. The legislative chamber in the democracy serves as a forum for ventilation of public grievances. Right to criticize government Democracy is said to be a government by discussion and criticism. The right to criticize the government should not be restricted. There should be free and frank criticism of policies of the government on the proper path. This is what is meant by saying that eternal vigilance is the price of liberty. Right to residence A citizen is free to live in any part of the country provided it does not endanger the safety of the State. This right is regarded as a political right because of the fact that it is exclusively reserved for the citizens and denied to aliens who have no access to political rights, whereas citizens have it in full. Permanent membership of the State, therefore, depends on permanent residence. Right to protection while staying abroad This is again enjoyed only by the citizens. Every citizen, while staying abroad, can seek protection from the home state, in a difficult situation. If an Indian staying in America suffers injuries due to an American and the American State does not redress his grievances, the Indian Government may intervene on behalf of its citizen. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 153 Right to public meeting Last but not the least is the right to public meeting. A citizen should have the freedom to prohibit anyone from holding a meeting in the public interest. John Stuart Mill has gone to the extent of saying that the entire world has no right to silence a fool. 4.2.3 Rights Relating to Person The various rights granted to a person being arrested by various statutes in India: 1. The most basic provision relating to arrest has been incorporated in Article 21 of the Constitution. It lays down that no person can be deprived of his/ her right to liberty, except in accordance with procedure established by law. 2. The arrested person has right to be informed about the full particulars or reasons for the arrest. 3. The arrested person has right to consult a legal practitioner of his/her choice and to be defended by him. 4. The accused must be produced before the nearest magistrate within 24 hours of arrest (The time period excludes the time consumed in travel.) 5. The arrested person has right to inform a friend or relative or any other person, who is known to him/her and is likely to take interest in his/her welfare, about his arrest and the place where he is being detained. 6. A woman cannot be arrested before sunrise or after sunset except with prior permission of a magistrate. 7. A woman can only be taken into custody in presence of a woman police officer as far as practicable and the arrest must be affected with proper dignity. 8. No beatings or force can be administered while arresting a juvenile or a child. 4.2.4 Right to Privacy Taking the ruling of Supreme Curt in the case of Kharak Singh v State of Punjab as precedence, the top judiciary uses the right to privacy to interpret its true essence by giving a broader interpretation of what this right means critically to the citizens of the state. New Oxford English Dictionary gives the meaning of privacy as a state in which one wishes to avoid any public appearances or be Human Rights and Media Unit 4 Sikkim Manipal University Page No. 154 absent from public display, or the wish to withdraw from the society or stay as a recluse or not get involved in the interest of the public. As defined in the Blacks Law Dictionary, privacy is right of a person to be left alone without any publicity or interference from the public at large in any of his or her concerns, that does not affect the larger public with any implications what so ever. That is the right to privacy is regarded as private to an individual. To what extent privacy shall be allowed or protected is also part of the right. Privacy has not been defined by the law but what have been stated are the instances in which the law shall accord this right. What needs to be taken note of is that the common law of the land has not yet brought in the right of privacy into its fold and even the Parliament of India has so far not passed any law regarding privacy and its implications. Privacy and the Indian Constitution The Constitution of India grants rights to the legislatures of the Centre and States to enact and pass laws. The three lists of included in the Seventh Schedule of the Constitution of India have enumerated many topics or areas in which laws can be enacted and passed. 1. List I : Union List 2. List II : State List 3. List III : Concurrent List The authority to pass legislations on a variety of subjects that have been listed therein emerges from the following Articles of the Constitution of India: Article 246 (1) of the Constitution of India provides the Parliament the special powers to create laws pertaining to any of the matters specified in List I in the Seventh Schedule (Union List). This control of Parliament is unregulated by Article 246(2) and (3) and Article 246 (2) of the Constitution of India. It provides the Parliament and the State Legislature the authority to create laws pertaining to any matter that has been listed in List III, in the Seventh Schedule (Concurrent List). The authority of the State Legislature is subject to Article 246(1), on the other hand, the power of Parliament is unfettered by Article 246(3) and Article 246 (3) of the Constitution of India. It provides the State Legislature the special authority to create laws in relation to any matter that has been listed in List II in the Seventh Schedule (State List). This authority of the State Legislature is according to Article 246(1) and (2). Privacy is not a topic in any of the three lists in Schedule VII of the Constitution of India. But Entry 97 of List I states: any other matter not enumerated Human Rights and Media Unit 4 Sikkim Manipal University Page No. 155 in List II and List III .. Therefore, only the Indian Parliament is capable to legislate on privacy since it can be elucidated as any other matter that has not been specified in List II and List III. Till date there is no precise ratification on Privacy. However, the Constitution of India has personified many Rights in Part III, which are known as fundamental rights. These are listed in Article 14-30 of the Constitution. Article 13 (2) make it illegal for the Indian State (Parliament and State legislatures) to make any law, which removes or abbreviates the rights conferred by Part III. Article 32 gives an assurance of the right to move the Supreme Court of India for enforcing the rights conferred by Part III. This right is accessible against the State, which has been clarified in Article 12, as inclusive of the Government and Parliament of India, Government and Legislatures of each State and every local and other authority in India. The Indian Constitution has many fundamental rights which, even though do not directly pertain to the matter of privacy, contain in them the inherent rights of the citizen to guard their privacy in various areas, which cannot be infringed by the government and its authorities and if done then legal proceedings can be initiated against the same. Historical tracing of the concept of privacy For each individual to assert his independence and self-respect the basic civil right of privacy is important. Lousie Brandeis said, The Right to Privacy is the characteristic of sophisticated existence and a right most valued by civilized men. India is a member of the International Covenant on Civil and Political Rights and the European Convention of Human Rights. Both these bodies affirm the right to privacy. The basic characteristic of the right to privacy as stated in the above conventions is the right given to the citizens to take legal action against the state for upholding the right. It is on the same grounds as other different human rights. However the Constitution of India has so far not been able to truly specify or define what Right to Privacy is. There is much difference of opinion and perception even among intellectuals as to what it really entails. For some like Winfiled, transgressing into ones seclusion or private property is infringement of right to privacy. It appears that the legal acceptance of an individuals personal space or identity is not normal to the culture of India. Judicial activism and the right to privacy A lot of judicial activism has been trying to set precedents for making the right to privacy a fundamental right in the Constitution of India. And since the judgements passed by the Supreme Court are legally binding on all courts of the country, as stated by Article 141 of the Constitution of India, it is being seen that Supreme Court and its landmark judgements are becoming the norm for legal changes. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 156 By time and again passing judgements to protect the privacy of the citizens of India, the Supreme Court has been actively asserting the essence of personal liberty and protection of life as stated in the Article 21 of the Constitution to be a part of the basic right to privacy. Article 21 states, no person shall be deprived of his life or personal liberty except according to procedures established by law. Supreme Court has repeatedly asserted that if any individual or authority is being asked in the course of any conceivable duty to infringe upon the liberty or freedom of privacy of another person, that individual or authority must at every point question such orders and actions in light of the law of the land. Article 19 (1)(a) of the Indian Constitution as certain restrictive clauses to the basic right to Freedom of Speech and Expression. This right cannot be used for the following (i) defamation; (ii) contempt of court; (iii) decency or morality; (iv) security of the State; (v) friendly relations with foreign states; (vi) incitement to an offence; (vii) public order; (viii) maintenance of the sovereignty and integrity of India. As long as the freedom of speech and expression does not in any way resort to the above, it shall be protected by the law. The following Supreme Court cases have reiterated the nature of this fundamental right. 1. Kharak Singh v. State of UP: In this case the UP police under the Regulation 236(b), that gives the police to call on homes at night, was harassing the plaintiff at odd hours. The Supreme Court held that Regulation 236 was not constitutional and violated Article 21. It inferred that the Article 21 of the Constitution comprised right to privacy as a constituent of the rights to protection of life and personal liberty. The Court brought personal liberty with privacy on the same level and came to the observation that the concept of liberty in Article 21 was comprehensive enough to include privacy and that a persons house, where he lives with his family is his castle and that nothing is more deleterious to a mans physical happiness and health than a calculated interference with his privacy. 2. Gobind v. State of M.P.: This was also a case were the plaintiff was being paid visits at his residence. The Supreme Court laid down that privacy-dignity claims deserve to be examined with care and can be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test 3. State v. Charulata Joshi: The Supreme Court held that the constitutional right to freedom of speech and expression conferred by Article 19(1) (a) of the Constitution which includes the freedom of the press is not an Human Rights and Media Unit 4 Sikkim Manipal University Page No. 157 absolute right. The press must first obtain the willingness of the person sought to be interviewed and no court can pass any order if the person to be interviewed expresses his unwillingness. 4. R. Rajagopal v. State of Tamil Nadu: The Supreme Court clarified that whatever the petitioners have used as the material for autobiography of auto Shankar from any public document, can be used even without the plaintiffs permission. But if they use information which is not part of any public document and has not been disclosed by the plaintiff willingly then it amounts to infringement of his privacy and he has every right to hold the petitioners for legally accountable. And if the petitioners are using material already available as public document then the State cannot stop it from being published. The Supreme Court stated that A citizen has a right to safeguard his own privacy, that of his family, marriage, procreation, motherhood, child bearing and education, among other matters. None can publish anything that concerns the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. 5. Peoples Union for Civil Liberties (PUCL) vs Union of India: In this case the Supreme Court observed that Article 21 of the Indian constitution is violated if the Government uses Section 5(2) of Telegraph Act, 1885 to tap phone lines. The apex court stated that right to privacy is a part of the right to life and personal liberty as inherently stated in Article 21 of the Indian Constitution and that this right cannot be altered except according to procedure established by law. 6. In Mr. X v. Hospital Z: In this case the Supreme Court outlined its opinion on delicate health related data being made public. In this case the appellant had got his blood tested at the respondents hospital and it was found that he was HIV (+). This information was disclosed by the hospital to his family members and the family of the woman he was to be married to. This unfortunately resulted in him being ex-communicated.. He approached the National Commission to claim compensation against the hospital for disclosing private information that was meant only for him and claimed what the hospital did was unethical. He had to approach the Supreme Court as the National Commission had rejected his plea. He pleaded that the medical profession was not only responsible for doing their duty towards caring but also for maintaining utmost privacy as to the patients medical condition and since the right of Human Rights and Media Unit 4 Sikkim Manipal University Page No. 158 secrecy had been violated he had right to compensation. Right of privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial, or even political. Doctor-patient relationship, though basically commercial, is professionally, a matter of confidence and therefore, doctors are morally and ethically bound to maintain confidentiality. The court resorted to jurisprudence and stated that every right has a correlative duty and every assumed duty has a correlative right, the rule was not complete and was subject to selected exemptions in the sense that a person may have a right, but there may not be correlative duty and the instant case fell within exceptions. The Supreme Court stated that there were exception to the code of medical ethics and permitted disclosure of medical data in certain circumstances, under which public interest would override the duty of confidentiality typically in cases where there exists a direct or imminent health risk to others. According to the court, the right to confidentiality, if any, vested in the appellant could not be forced in the current state of affairs, as the projected marriage had with it the health risk of being infected with the communicable disease from which the appellant suffered. While making reference to the argument put forth by the complainant that his private medical information was disclosed and therefore the hospital must pay for damages, the Supreme Court stated that right to privacy was not absolute and needed interpretation depending on the case, subject to such action as may be legally taken for the prevention of offence or disorder or for protecting health, morals, or rights and freedom of individuals. 7. District Registrar and Collector vs Canara Bank: It was ruled, that exclusion of illegitimate intrusions into privacy depends on the nature of the right being asserted and the way in which it is brought into play; it is at this point that the context becomes crucial, to inform substantive judgment. If these factors are relevant for defining the right to privacy, they are quite relevant whenever there is invasion of that right by way of searches and seizures at the instance of the State. If one were to analyse the rulings made by the Apex Court. Then the following three points come to the fore. 1. That any individual has a legal right to privacy and any infringement of this right can hold the infringer liable as offender and hence legally accountable. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 159 2. That the right to privacy is a constitutional right and hence can be used as defense against any infringement even by the State and its officials. 3. That this right is not an absolute right and hence where there is possibilities of danger to other lives, others health, ethics or freedom or for prevention of any crime it can be curbed. In the case of ADM Jabalpur vs Shivakant Shukla,
the Supreme Court in order to state if the right to liberty is restricted to any boundaries other than those mentioned in the Constitution or other laws, made the following observation. As observed by Khanna J: Article 21 is not the sole repository of the right to personal liberty..no one shall be deprived of his life and personal liberty without the authority of laws follows not merely from common law, it flows equally from statutory law like the penal law in force in India. Hence it is clearly ascertained that even if not specifically assured, the right to privacy, could be implied because of the implications of any general law. The supreme Court has in the form of judicial activism interpreted the right to privacy as mentioned in the Constitution as equivalent to right to life as stipulated in the Article 21 of the Indian Constitution. Protection of data and privacy Protection of personal data is a common form of privacy. Various places like schools, banks, directories, surveys, internet sites, universities etc have in their databank information of personal nature regarding an individual like address, phone numbers, email ids, name of relatives, occupation, interests etc. Disclosing such personal information to interested parties could be lead to infringement of privacy through unwanted calls or mails etc. It is not that India does not a have any laws to protect data. There is a law that protects data and it comes under the Information Technology Act, 2000. However, it is not exclusively for data protection. None of the three list of the Schedule VII of the Indian Constitution states data protection as a topic. However, any matter not included in the three lists is included in List ones Entry 97 any other matter not enumerated in List II and List III. So only the parliament of India can pass any law relating to data protection as a matter not mentioned in either List II or List III of the Schedule VII. Since it is a topic of importance the competency to pass any legislation on data protection lies only with the Central Government. The Information Technology Act, 2000 is the first stipulated legal data protection provision as enacted by the Parliament of India. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 160 Origin of the Right to Privacy in India The struggle or strive to uphold the right to privacy as a right under the Constitution can be attributed to the ambiguous nature of the right. In the case of M.P. Sharma v. Satish Chandra in which the various ways in which the police can exercise its power to investigate and scrutinize were discussed, it was observed by the Supreme Court that the right to privacy was not explicitly present in the Constitution. Before coming to the conclusion, the Supreme Court explained it in a not so open way and thus restricted itself to normal statutory provisions. Thus the judiciary took a positive step towards stopping itself from too much interpretation of the law. The court stated that it was not simply going to impose the right of privacy on to a completely different set of rights by some forced interpretation. By making reference to the Fourth Amendment of the US Constitution, the courts adopted a less broader and less formal path indicating that there was lack of provision in the constitution for the same with reference to protecting the privacy of Indians from improper legal scrutiny. In the case of Kharak Singh v State of Punjab, the implications of this ruling were again used to tackle the issues of police scrutiny and investigation on an accused person.. The argument that followed is pertaining to the interpretation of right to privacy vis--vis personal liberty as outlined in Article 21 of the Constitution. References were also made to the debate and ruling in the cases of Munn v Illinois as observed by Field, J pertaining to the fifth and fourteenth amendment to the American Constitution. References were also made to other American and English judgements of which the case of Wolf v Colorado is pertinent. The court in order to broaden the scope of Article 21 with reference to personal liberty, stated that as a compendious term to include within itself all varieties of rights which go to make up the personal liberty of man, other than those dealt with in several clauses of Article 19(1). It also stated that the constitution of India does not include explicitly the right to privacy in its rights. And Ayyangar, J. stated this: The right of privacy is not guaranteed under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of fundamental right guaranteed by Part III. The Supreme Court here seems to be lacking in any reference to the prohibition on irrational search and seizure just like in the case of M.P. Sharma, similar to what is provided in the fourth amendment to the American Constitution. And due to this lack of reference in the Indian Constitution many misinterpreted prohibition on unreasonable search and seizure as a single interpretation of Human Rights and Media Unit 4 Sikkim Manipal University Page No. 161 right to privacy. It is still baffling as to how did the court conclude that secretly conducting surveillance does not amount to violation of personal liberty as implied in the Constitution. There is an absence of clarification as well, as to how the conclusion that secret surveillance is not infringement of personal liberty was arrived at by the court. Nevertheless the court cited from the case of Semayne and stated that, the house to everyone is to him as his castle and fortress. When taking into consideration the provisions as stated in scheme of Part III in a broader way, the view of the minority became that every act of secret surveillance, when interpreted under Article 21 and Article 19(1) (d) violated Articles 21 and 19(1) (d), because any movement which is being monitored by secret surveillance of police cannot be really free as per the essence and spirit of the Constitution. And hence the judgements as made by the minority were of the opinion that any secret surveillance was an infringement of the right to freedom of movement since they believed that it was against the true spirit of Article 21 of the Constitution as any restriction that stopped a person from even mentally move freely was a violation of the right to freedom of movement as stated by the Constitution. Even though the judgement passed by the minority negated the explicit presence of the right to privacy it also said that it was against the Constitution to conduct secret surveillances on someone. One must also keep in mind the rationalization that went into the majority ruling in the Kharak Singh case. It took into account the fact that Article 21 does not have the rights that are present in Article 19, however this was rejected by the Supreme Court in the famous case of Maneka Gandhi, in which. the respected bench ruled referring to the Kharak Singh case: In our view this is not the correct approach. Both are independent fundamental rights, though they are overlapping. The fundamental right to life and personal liberty has many attributes and some of them are found in Article 19. Most of the opinion as given in the Kharak Singh case depended on the carving out theory as interpreted in Article 19. The verdict that succeeded the dismissal in the famous Maneka Gandhi case elaborated different varied interpretations of personal rights as per the Constitution and its provisions and thus ruled that Article 21 cannot be a left over clause. In the case of All India Bank Employees Association the Supreme Court rejected the pleas of the employees to have the right to strike based on the interpretation of Article 19(1) that the Article no matter how liberally one were to Human Rights and Media Unit 4 Sikkim Manipal University Page No. 162 apply, in no way gives trade unions the liberty to go on strike as a basic right. It also expressed that the right to privacy is not indirect and that cannot be a ground for appeal to make it explicit. After ten years again in the case of Govind v State of MP, the Supreme Court was faced with the issue of whether secret surveillance by police is constitutional or not, and this time its ruling was different from it ruling in the cases of Kharak Singh and M.P. Sharma. Referring to the root of the purpose for such a right as mentioned in the Constitution, Matthew J of the Supreme Court observed: There can be no doubt that the makers of our Constitution wanted to ensure conditions favorable to the pursuit of happiness. They certainly realized, as Brandeis, J. said in his dissent in Olmstead v. US, the significance of mans Spiritual nature, of his feelings and his intellect (...). They sought to protect [Individual] in their beliefs, thoughts, their emotions and their sensations. Therefore they must be deemed to have conferred upon the individual as against the government a sphere where he should be let alone. The apex court was one with the notion that the basic right to privacy and the principle behind it was intrinsic to the vary nature of the clause of liberty. Taking into reference the various rulings of the American Supreme Court on these matters, the Indian Supreme Courts rulings tried to be one with implied right to privacy as mentioned in Part III of the Indian Constitution. And thus it was able to include the right to privacy as part of the jurisprudence determining the interpretation of the Indian Constitution regarding this matter. However it also remained cautious and observed that this ruling is not a blanket ruling and every time observations will be based on the nature of each case. In the case of Govind the verdict was given by a Bench of three judges of the Apex Court as compared to the verdict given by a Bench of six judges in the case of Kharak Singh. The ruling in the Govind case however does not make any reference to earlier rulings on the issue of privacy and therefore much is left open for further interpretation. Maneka Gandhi case In the celebrated case of Maneka Gandhi the Honourable Justice Bhagwati observed the difference between a direct right as stated in any law and indirect right that stems from rights which in essence and spirit imply the presence of similar rights. The Honourable Judge made a clear distinction between implied right and explicit rights. He categorically stated that for a right to be admitted it was not sufficient that it stem from an explicit right, but also that such a right be implied in the right from which it flows. In this case referring to the rights mentioned Human Rights and Media Unit 4 Sikkim Manipal University Page No. 163 in the Indian Constitution., he stated that integral to the named right or must partake of the same basic nature or character of the named right. In his view, any action that leads to the exercise of any listed fundamental right is not always present in that particular right and needs to be looked into deeply.. As no right mentioned in the Indian Constitution explicitly names a right to privacy as a right, it has to be proved that it is integral to personal liberty or partaking the same basic character as individual liberty for it to be accepted as part of the basic right to liberty. And it can be observed that the ruling in the case of Govind, interprets the right to privacy as a right that is fundamental and stemming from the rights as mentioned in the Constitution. Justice Mathew in the case of Govind did not use the same interpretation as that of Justice Bhagwati, and yet a similar interpretation was available in the All India Bank Employees Associations case. Other cases related to right of privacy post the Maneka Gandhi case: The Supreme Court in the case of R. Rajagopal v State of Tamil Nadu, ruled that right to privacy is an integral part of rights named in the Article 21 of the Constitution. This is the case of a convict on death row, whose life story was to be published. When the convict was in jail he wrote his life story and passed it on to his wife without the knowledge of the jail authorities, and asked her to get it published. Serious questions were raised on the conduct of many senior officers in this autobiography. And so the editor of the publishing firm stopped by the police from publishing the book. Verdicts given in cases, those came up in the American Supreme Court, namely, Griswold v. Connecticut, Roe v. Wade and New York Times Co. v. Sullivan, were used as references. The right to privacy is implicit in the right to life and personal liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education amongst other matters. None can publish anything concerning the above matters without his consent. The court made two exceptions to the rule with respect to publication of matter which was already available to the public and the requisite behaviour of public officials as being important for them to perform their duties. And hence it can be seen as the first ruling which clarifies the stance of the court in relation to the implicitness of right to privacy with respect to right to liberty as mentioned in Article 21. According to the ruling given by majority in the case of Kharak Singh the term personal liberty was not seen as an integral part of right to privacy. And therefore there is no guarantee that even after the case of Maneka Gandhi cases Human Rights and Media Unit 4 Sikkim Manipal University Page No. 164 that argue the nature of personal liberty will be seen as part of the basic fundamental right as mentioned in the Constitution or not, the right to privacy may be seen as part of the basic right to freedom. In the case of Peoples Union for Civil Liberties v Union of India right to privacy was discussed in relation to tapping of phone lines. The Supreme Court ruled that right to privacy was an integral part of Article 21 and hence could not be separated from it unless proper legal proceeding was followed. It was observed by the Apex Court that conversation on the phone were private in nature and part of that indivuduals personal life and therefore to tap phone lines was in violation of Article 21. However the Court also held that if needed, the right as mentioned in Article 21 could be curbed, but only by bringing in proper Amendments to the Constitution and not otherwise. If one were to dispassionately analyse the various rulings of the courts, one could see that the courts have made an indirect and implicit connection between the right to privacy and the rights as stated in the Constitution of India. The Supreme Court in the cases of MP Sharma and Kharak Singh, as seen earlier, rejected the existence of right to privacy, but in the cases of Govind, Rajagopal and PUCL lower courts have clearly acknowledged the existence of such a right. After the Maneka Gandhi case the stance of the judiciary is worth taking note of regarding the right to privacy, despite the limitations that were laid down by the Court. However it seems unlikely that if the courts were to go over the issue of right to privacy from the beginning they would actually reach any conclusion as to its inclusion or existence in the Article 21 of the constitution. And even if there did exist some chance then also unless a full bench of six judges unanimously ruled in its favour, the verdict in the Kharak Singh case cannot be overruled. Based on some of the observations made by Supreme Court, one could reach a conclusion that Part III of the Constitution does contain the right to privacy. In the case of Kahrak Sing, the first observation was made, in which the Supreme Court stated, personal liberty as per Article 21 is a compendious term to include within itself all varieties of rights which go to make up the personal liberty of man other than those dealt with in several clauses of Article 19(1). In the case of Maneka Gandhi two more principles were laid out. One stated that any law which interferes with the right to personal liberty needs to do so without any bias, it must be not unreasonable and must not be unrealistic. And the other stated that even if the right is not stated explicitly it can be interpreted as being part of the stated right and that the nature of the stated right to privacy is characteristic of an individuals right to dignity that the Constitution guarantees, Human Rights and Media Unit 4 Sikkim Manipal University Page No. 165 to all. Therefore one can see how the right is not only a deterrent to stop the State from curbing an individuals private space but is also a step to help the State to enable its official mechanism to safeguard its private life. One can observe that the constitution very strongly supports the right to privacy and this is appropriated by the required bench of Supreme Court, the ambiguity of this clause can be resolved. Self-Assessment Questions 1. Fill in the blanks with the appropriate words. (a) There shall be equal opportunity for every citizen in issues related to employment or appointment of any office under a _____. (b) ______ is said to be a government by discussion and criticism. 2. State whether the following statements are true or false. (a) A citizen is free to live in any part of the country provided it does not endanger the safety of the State. (b) A woman can be arrested before sunrise or after sunset without prior permission of a magistrate. 4.3 Rights of Minorities The Constitution has passed various bills in order to safeguard the rights of minorities in India. 1. Constitutional rights to safeguard religious and linguistic minorities in India It has been noted that the Constitution of India does not define the term Minority. However, it refers to Minorities and clearly discusses those which are based on religion or language. Even though the Constitution does not make any mention of Minority, the rights of minorities have been written in great detail. 2. Rights of minorities with regard to Common Domain and Separate Domain mentioned in the Constitution of India. The Constitution of India has given the minorities two sets of rights which are distinguished as Common Domain and Separate Domain. The rights grouped under Common Domain are the rights which are valid for all the citizens of India, whereas, the rights under Separate Domain are only applicable to the minorities Human Rights and Media Unit 4 Sikkim Manipal University Page No. 166 and are reserved in order to protect their identity. The difference between Common Domain and Separate Domain has been vividly described in the Indian Constitution. The Preamble to the Constitution asserts India to be a secular state which is deemed relevant for the religious minorities. This is equally significant to all minorities as the Preamble to the Constitution also secures liberty of thought, expression, belief, faith and worship along with equality of status and worship. 4.3.1 Common Domain: Directive Principles of State Policy-Part IV of the Constitution The Indian Constitution has made provisions of Fundamental Rights which falls under Part III. It is imperative for the State to comply with these rights as they are also judicially enforceable. The Constitution also has another set of rights which are non-justiciable in nature. These rights are stated in Part IV and are related to social and economic rights of people. These rights are referred to as Directive Principles of State Policy and are not legally binding upon the state. They are however, fundamental in the governance of the country and it shall be the duty of the State to apply these principles in formulating laws. Article 37, Part IV of the Indian Constitution covers non-justifiable Directive Principles of State Policy and included the following provisions having significant implications for the minorities: Obligation of the State to endeavour to eliminate inequalities in status, facilities and opportunities amongst individuals and groups of people residing in different areas or engaged in different vocations; Article 38 (2) Obligation of State to promote with special care the educational and economic interests of the weaker sections of the people (besides Scheduled Castes and Scheduled Tribes); Article 46 4.3.2 Common Domain: The Fundamental Duties Part IVA of the Constitution Part IVA of the Constitution, relating to Fundamental Duties as provided in Article 51 A applies in full to all citizens, including those belonging to Minorities. Article 51A which is of special relevance for the Minorities stipulates as under: Citizens duty to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities Citizens duty to value and preserve the rich heritage of our composite culture Human Rights and Media Unit 4 Sikkim Manipal University Page No. 167 4.3.3 Common Domain: The Fundamental Rights Part III of the Constitution The Constitution has provided a definite space for both the domains, i.e., common as well as separate. In Part III of the Constitution, which deals with the Fundamental Rights, is divided into two parts viz. (a) the rights which fall in the common domain and (b) the rights which go to the separate domain. In the common domain, the following fundamental rights and freedoms are covered: i. Peoples right to equality before the law and equal protection of the laws; [Article 14] ii. Prohibition of discrimination against citizens on grounds of religion, race, caste, sex or place of birth; [Article 15 (1) & (2)] iii. Authority of State to make any special provision for the advancement of any socially and educationally backward classes of citizens (besides the Scheduled Castes and Scheduled Tribes); [Article 15 (4)] iv. Citizens right to equality of opportunity in matters relating to employment or appointment to any office under the State and prohibition in this regard of discrimination on grounds of religion, race, caste, sex or place of birth; [Article 16(1)&(2)] v. Authority of State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State; [Article 16(4)] vi. Peoples freedom of conscience and right to freely profess, practice and propagate religion subject to public order, morality and other Fundamental Rights; [Article 25(1)] vii. Right of every religious denomination or any section thereof subject to public order, morality and health to establish and maintain institutions for religious and charitable purposes, manage its own affairs in matters of religion, and own and acquire movable immovable property and administer it in accordance with law; [Article 26] viii. Prohibition against compelling any person to pay taxes for promotion of any particular religion; [Article 27] ix. Peoples freedom as to attendance at religious instruction or religious worship in educational institutions wholly maintained, recognized, or aided by the State. [Article 28] Human Rights and Media Unit 4 Sikkim Manipal University Page No. 168 4.3.4 Separate Domain of Minority Rights The Minority Rights provided in the Constitution which fall in the category of Separate Domain are as under: i. right of any section of the citizens to conserve its distinct language, script or culture; [Article 29(1)] ii. restriction on denial of admission to any citizen, to any educational institution maintained or aided by the State, n grounds only of religion, race, caste, language or any of them; [Article 29(2)] iii. right of all Religious and Linguistic Minorities to establish and administer educational institutions of their choice;[Article 30(1)] iv. freedom of Minority-managed educational institutions from discrimination in the matter of receiving aid from the State;[Article 30(2)] v. special provision relating to the language spoken by a section of the population of any State;[Article 347] vi. provision for facilities for instruction in mother-tongue at primary stage;[Article 350 A] vii. provision for a Special Officer for Linguistic Minorities and his duties; and [Article 350 B] viii. Sikh communitys right of wearing and carrying of kirpans; [Explanation 1 below Article 25] 4.3.5 Multiculturalism in Indian Constitution The numerous articles of the Indian Constitution, which grant rights to the minorities, clearly represent India as a multi-religious, multi-cultural, multi-lingual and multi-racial nation. National integration and communal harmony in the Indian society further strengthen the nation in a strong bond of unity. Besides being an assembly of individual citizens, India also comprises of two separate categories of constituents. The commonwealth of the country is divided into two levels, which include every citizen of India individually and a large number of religious, cultural, linguistic and ethnic groups among its citizens. In India, which is a vast country, every citizen is also a member of his/her own respective branch including cultural, religious, linguistic and ethnic groups. Like the citizens of India, these groups also enjoy the same fundamental rights and have the same fundamental duties to execute. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 169 4.3.6 Security of Weaker Sections in Secular India The concept of secularism in the Indian Constitution strengthens the nations social pluralism, which highlights the need for the security, welfare and growth of the weaker sectionswhether social, economic or educational status of any particular groupof the country. Therefore, the Constitution talks about the weaker sections of the Indian society, comprising of religious and linguistic minorities, scheduled castes, scheduled tribes and backward classes. It either formulatesor leaves room for formulatingspecial provisions of different nature and varying import for these sections of the society. Activity 1 India has a stronger right to privacy over telephone records than many other countries. Do you agree with this statement? Give reasons to support your answer. Self-Assessment Questions 3. Fill in the blanks with the appropriate words. (a) The Constitution of India has given the minorities two sets of rights which are distinguished as Common Domain and ______ Domain. (b) The Indian Constitution has made provisions of Fundamental Rights which falls under _____. 4. State whether the following statements are true or false. (a) Article 17, Part IV of the Indian Constitution covers non-justifiable Directive Principles of State Policy and included the following provisions having significant implications for the minorities. (b) Part IVA of the Constitution, relating to Fundamental Duties as provided in Article 51 A applies in full to all citizens, including those belonging to Minorities. 4.4 Human Rights in India The situation of human rights in India as come a long way since ancient times, the British period and the period after independence. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 170 4.4.1 Human Rights in Ancient India In its endeavour of putting the ancient law at par with the modern legal systems of civilized world the legal scholarship conveniently equated dharma with law the Dharmasastra simply became a code of law and texts like Manusmriti became laws of Manu. Having being labeled law, the element of dharma lost its inherent flexibility and situation-specificity. Further, the essence of Dharmic understanding the inherent link of all individual actions with the cosmic system of righteousness, as the ultimate arbiter of what was the right thing to do at any given moment was lost. It was reduced to a positivist legal construct of law as a command of a supreme human agency. The ancient law, as we view it today, has gone through smooth evolution from the pre-classical Vedic law to the late- classical Hindu law; the four major stages of development of traditional Hindu law are summarized as follows: Cosmic order in pre-classical Vedic law The ancient Vedic concept of Rta (macrocosmic universal order system) reflected the awareness of people that there is a superhuman, macrocosmic form of order in the world which is not directly subject to human influence, but to which mankind, in its quest for good life should relate and to an extent, submit. In this macrocosmic order, all individual beings (gods, humans and others) needed to contribute to the sustainability of this superhuman order. The Vedic literature of this period is adorned with vast and complex Vedic rituals to provide support to the cosmic order, but there is hardly any text in the nature of the prescriptive legal texts or binding doctrines. In the Vedas, law is an entity beyond direct human control... (it) does not claim institutional loyalty as a State legal system would do. It was never thought in the Vedic period that the rulers are regulating the world by a legal order, as any human law would be conceptually inferior. Everyone was subject to the all pervasive macrocosmic force and could contribute by ritually correct action to this macrocosmic order. The Vedic people cooperated to sustain the existence as a whole in both, visible and invisible ways through sacrifices to gods who were the upholders of Rta, like fire rituals which were sacrifices to Agni, the fire god. Dharma and the classical Hindu Law The complex rituals of the Vedic period had become the monopoly of a small elite class of literate ritual performers, mainly the Brahmins. Thus, these were gradually replaced by simpler forms to make them accessible to the masses. The concept of Rta gradually metamorphosed into dharma (microcosmic order or duty), which became the core concept of Hinduism, wherein Hindus Human Rights and Media Unit 4 Sikkim Manipal University Page No. 171 contributed to cosmic order not only through their ritual action, but also through their individual right action and appropriate behaviour. Thus karma (which includes inaction) became related to dharma. Dharma is one of those Sanskrit words that defy all attempts at an exact rendering in English or any other language. Dharma is much wider than positive law. Dharma is not mere religion or simply law, as pointed out by Robert Lingat. It requires performance of both social and religious duties. It is not a creation of the king or the State but is above them, so if a king ever deviated from his dharma, he was compelled to abdicate. Dharma is known as the way of righteousness but it was not an absolute concept that depicts goodness; it was not akin to Moses absolute commandments of Thou Shall Not nature. No authority ever listed the steps on how to follow dharma. So, there was no cosy life raft of simple prescriptions or a legally binding system to stay upright on the principle of righteousness. Salient features of the justice system in ancient India 1. Judicial institutions There is no clear reference to the existence of judicial organization in the Vedic period. It appeared that village elders acted as judges and punishments were awarded according to the nature of offence, in accordance with local usages and customs. But gradually the king became the fountain head of law and dispensed justice. The administration of justice was then delegated and entrusted to experts. Kautilya mentions two types of courts - Dharmasthiya (civil courts) and Kantakasodhana (criminal courts). The criminal courts, according to Kautilya, took care of the following cases: (i) Protection of artisans, merchants, etc. (ii) Suppression of the undesirables (iii) Detecting criminals by means of spies (iv) Arresting the suspicious or real culprits (v) Post-mortem examinations (vi) Discipline in various state departments (vii) Punishment for mutilation (viii) Capital punishment (ix) Ravishment of immature girls Human Rights and Media Unit 4 Sikkim Manipal University Page No. 172 (x) Examination by word and action thereon (xi) Miscellaneous offences Kantakasodhana was in the nature of the doctrine of police power. Hence, the king, in order to regulate the liberties of its people and to ensure peaceful enjoyment of their rights, was obliged under this doctrine to remove all anti- social elements that acted against the established social order. It is interesting to see that Kautilya envisages torture to elicit confession for criminals who were cruel in their offences. However, it was not without safeguarding them, as no person could be arrested till three days after commission of a crime. There was a severe punishment for one who kept an innocent man in confinement. The young, the aged, the diseased, the intoxicated, the mad, those suffering from hunger, thirst or fatigue due to journey, those who confessed their guilt, the physically unfit, the pregnant women and those who had not passed a month after delivery were generally exempted from torture. 2. Secret agents Kautilya visualizes a country riddled from top to bottom with spies. Spies and agents were employed to detect criminals, whether in the service of the State or among the people. They were to ascertain the fair and foul dealings of villagers or of the superintendents of villages and report the matter to higher authorities. The spies also detected the false witnesses. As a detective, it was the duty of the spy to seek out sedition, whether in the brothel or in the palace of the king. They served as a machinery to guard the interests of law and order and the interest of people concerned. 3. History of punishments in India As pointed out before, varna considerations dominated the prescription of punishments by Manu. For instance, if a sudra teaches a brahmana his duties, the king shall order for hot oil to be poured into his mouth and ears but if a brahmana killed a sudra, it amounted to killing a frog or a dog, a sin off which he could get rid off by mere penance. Manu prescribed admonition, fine, corporeal punishment and banishment. Brahmanas were exempted from capital punishment, but in extreme cases banishment was recommended. At the same time, Manu thought punishment to have both retributive and deterrence value and wanted that the king should fully ascertain the motive, place of occurrence, ability of the offender to suffer penalty, nature of crime and then only impose the penalty which the accused deserves as unjust punishment Human Rights and Media Unit 4 Sikkim Manipal University Page No. 173 destroys reputation among men and fame (after death) and causes the loss of heaven even in the life after death. According to many historians, this feature of the ancient Indian jurisprudence was a great development in the field of administration of justice. However, Manus legal code was not accredited with this sense of justice because of the inherent caste-ridden bias throughout the scheme of the text. In contrast with Manus code is Arthasastras criminal code, which is rather severe as characterized by Lex Talionis, i.e., eye for an eye and tooth for a tooth. A person who insulted his father, mother, son, brother, teacher or an ascetic had his tongue cut off; if he bites any limb of these persons, he shall be depraved of the corresponding limb. Kautilya even brings in the Brahmana within the scope of capital punishment by providing him the death penalty by drowning, if he is guilty of high treason. For spreading false rumours, housebreaking and stealing war animals of the king, hanging was the penalty. A person would be set on fire alive , if he tried to enter the kingdom, or forcibly tried to get into the kings harem, or provoked tribes that are not civilized or provoked enemies, or who created disharmony in the forts or in any port of the country or amongst the soldiers. Kautilya treated sexual offences in a lenient way, in comparison to most of the offences that are punishable with fines. Colonial rampage and a lost civilization The vastness and intricacies of the ancient regulatory order suffered a deathblow with the codification of law in the colonial period. The codification is applauded as a great step towards reformation of the patriarchal and caste biases of the previous order (which it indeed was, as is evident from revolutionary steps like abolition of sati and similar punishment for similar crimes for all Indians) without realizing that it also wiped off ancient Indian morality, simply to replace it with Victorian morality. The Indian legal texts were discarded on the pretext of being either regressive or primitive without any effort to appreciate some radical notions stored in them. The following example will make this point more clear: Suicide in ancient India In the Dharmasastras, killing of self i.e., Atmaghata, has always been considered as something reprehensible a fall (pataka) from the normal human existence. But there were certain exceptional cases in which killing of self was permitted. These sanctioned suicides lost their existence and were criminalized with the colonial penal code, 1960. This was due to the western view that crime could never fathom the metaphysical nature of the Act. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 174 The first exception is called tatvajana, i.e., negation of ones temporal self in an endeavour to understand the nature of universal self or cosmic consciousness, in the pursuit of ultimate essential knowledge of human existence. However, this sacred space was never shared with women, as these bigger questions of life were always considered to be beyond the reach of their understanding. For the lesser beings called women, the other category of permitted suicide was the recourse to reach Parmatma. This second category included the suicides that were committed at places of pilgrimage (for instance, Jal Samadhi, which meant immersion of self in sacred river) or other sacred places. For a woman, her husbands funeral pyre was the sacred place, as it was believed that as long as a woman does not burn herself in fire on the death of her husband, she is never released from the female body (Sati). The above forms of sanctioned suicide only related to metaphysical, esoteric and other worldly notions. Suicide was also acceptable to attain some non-spiritual ends, like when it acquired the form of resistance. Self-immolation or Jauhar by Rajput war-widows to save their honour was a very common practice of resistance exhibited by the brave Rajput queens. Thus, with the criminalization of every attempted act of suicide, not only the ancient spiritual space denied to the Indians but all types of resistance-suicide also became criminal. Here, it is relevant to look at Gandhijis tool of Satyagraha, which became the most dreaded weapon for the empire. The Gandhian notion of Satyagraha or hunger strike to express deep resistance against the exploitative colonial regime was a much desiderated revival of the sanctioned suicide of the ancient India, but Section 309 was the perfect colonial tool that thwarted all forms of such protest. 4.4.2 Human Rights in Islamic Era Before coming to the topic of human rights in Islamic era, one should first look at the pre-Islamic era to fully understand the human rights granted by Islam. Pre-Islamic era Cultures, countries, nations that existed before the Islamic era, were ruled by kings, sultans and monarch. They were mostly kingdoms. The rulers had full autocratic power over the people of the kingdom and executed and threw out of the kingdom anyone they felt like and could not be even held responsible for their actions. In that era, the social structure was caste and class based. Descendents and blood relatives of the ruling family were considered as nobility and enjoyed unlimited privileges. The rest of the people, who even though made for a vast majority were looked down upon by the noble men and women. There existed Human Rights and Media Unit 4 Sikkim Manipal University Page No. 175 wide gaps amongst the different classes. Human beings were used as slaves and were treated with extreme indignity and cruelty. Most people were mistreated like animals and subjected to discrimination based on race, class, caste and colour. Line of descent implied a certain excellence of origin. People were divided and separated on the basis of their families; abilities, knowledge and morality. Virtues did not mean anything. There were no fundamental rights and freedom. Fundamental rights and freedom such as freedom of religion and conscience, right of property, latitude of thought, were not in use. People had to face unprecedented torture because of their beliefs and thoughts. The essential principle of law was trampled. Equality before the law was the last thing that could exist. There was no such thing as fair and impartial trial. Rights in law were not absolute, personal wishes and interests did for law. Different penalties were imposed on different caste members, who committed the same crime. While the world was in such a situation, Islam came and implemented the greatest development in the history of the human kind. If examined fairly, long before the declaration of the human rights in western cultures, it will be seen that the ultimate humane objectives were ascertained in both, the Holy Quran and in the Sunnah of Prophet Muhammad (Peace Be Upon Him). In fact, Prophet Muhammads farewell sermon during his farewell pilgrimage has distinctive principles on the basis of Human rights. Humans have distinctive value from other creations. This value increases with their belief in God and by obeying his rules. By this way, humans become the most dignified guests of the universe. Because of this belief, value encircles every human being, woman or man, young or old, white or black, weak or strong, poor or rich, irrespective of the religion or race he or she belongs to, this shadow of clemency covers all of them. Islam, by this way, prevented people from shedding blood unlawfully, protected peoples chastity, properties and protected all of them from being exposed to such assaults like breaking into their houses and moral pressure. Human dignity, honor and the right to have their dignity and honor respected is protected by Islam in the literal sense than ever before. Islam brought following principle rights and freedoms Any discrimination based on any ground such as race and color has been abated by Islam. All men are descendants of Hazrath Adam. No one can choose his race or the color of his skin. It all happens with Gods decision. Discriminating Human Rights and Media Unit 4 Sikkim Manipal University Page No. 176 people on the basis of race, skin color and links with someone superior in comparison to others is wrong and harmful according to both Islam and Humane reasons. In the Quran, God states: O humankind! Surely We have created you from a single (pair of) male and female and made you into tribes and families so that you may know one another (and so build mutuality and cooperative relationships, not so that you may take pride in your differences of race or social rank and breed enmities). (Al-Hujurat Surah, 49:13) As it is clearly seen in this verse, being different should not be simulated as a means of superiority but for building mutuality and cooperative relationships. The following Hadith focuses more on the matter. Abu Zarr Ghifari, when, once in rage, called Bilal, O son of a Negress, the Prophet did not tolerate this intemperance. He admonished him and said, You still smack of the evil traits of Jahiliyah, (that you tried to disgrace him by lowering the dignity of his mother on the basis of color). Abu Zarr regretted and asked Bilal to forgive him. Islam has abated the claims of superiority, based on descent. Further, Islam has given the public the right to control the administrators. It aimed at abating arbitrary managements and unjust, unlawful acts of the administrators. Abu Bakr, when he was elected as the first Caliph, did not claim any privileges. In fact, he clearly refuted any special status in the opening words (after the pre- amble) of his inauguration sermon: I was assigned to rule you and I am not the best amongst you. He also went on to tell people that they should obey him as long as he does his duty properly and that if he does not, then he commands them not to obey him. Once Omar who was an elected leader of his people while giving a sermon in the mosque told the people gathered that even though they had elected him he did nto think he was best. He told them that he would try his best to rule according to the teachings of the prophet and that if he made any error the people must help him to rectify it. As he said that one man from the gathering stood up and said the only way they would correct him if he did not follow the holy book was by beheading him. He became delighted with the answer. Freedom of thoughts and conscience are the second most important rights of humans after having right to live. Not avowing this right of any individual means decreasing his rank to that of animals. It advocates both, freedom of thought and freedom of conscience. The principle of there being no compulsion in religion, does not allow coercion of anyone to the Islam. Islam has given great importance to abolish the institution of slavery. Before Islam, slavery was in use with the utmost savagery. There was no reason to Human Rights and Media Unit 4 Sikkim Manipal University Page No. 177 anticipate that slavery would be abated completely, which was widespread in every corner of the world. For this reason, Islam was not able to abrogate slavery completely, so it improved it in the most civilized and humane way. Additionally, Islam made the transition from slavery to freedom possible. However, Islam did develop efficient systems to abate slavery completely. Islam also had a different outlook on the freedom of having property, as well as all feelings. Islam preached that God gave us the feeling of ownership and it is a part of our human nature. The Holy Quran states its meaning clearly. Islam let individuals have possessions and laid the groundwork for having possessions lawfully. The right of individual property that Islam acknowledges cannot be intervened without the permission of the owner. 1. Equality before the law All people are equal before the law (regardless of their ethnicity, belief, etc.) as equal as the teeth of a comb. The rule of law is an essential principle in Islam. A state leader and a commoner are equal before the law. Even if the felon is a state leader he receives punishment. Sultan Mehmed II the conqueror with a Greek architect, Hazrath Ali with a Jew, Salaaddin Ayyubi with an Armenian, all came before the judge. During Prophet Muhammads era in Mecca, a woman of a tribe called Banu Makhzum was caught stealing and the people brought her to the Prophet. The people of her tribe tried to plead for her release. They sent Usama, Zayads son, to Muhammad, as Zyad was very close to the Prophet. But when Usma asked for mercy for the woman, Muhammad was angry and furious and scolded Usama. Then he gave this historic sermon: O people! Know of a certainty that the Almighty ruined many of the peoples before you because they did not observe justice. When an influential person among them who had powerful backing committed a crime, they ignored it, but if the same crime was committed by a weak one, they applied the necessary punishment. I swear by God, that if my daughter Fatima steals, I will not hesitate to cut off her hand. (Bukhari 8:6800; Muslim 3:4187 and 4188) Abu Bakr In Islam, there is no unlawful punishment. No one is responsible for another persons crime. This principle is stated in the Quran as follows, Say: Am I, then, to seek after someone other than God as Lord when He is the Lord of everything? Every soul earns only to its own account; and no soul, as bearer of burden, bears and is made to bear the burden of another. Then to your Lord is your return and He will inform you concerning that over which you used to differ. (Al-Anam Surah, 6:164) Human Rights and Media Unit 4 Sikkim Manipal University Page No. 178 Islam also preaches differently on the topics of impartiality and independence of the courts principle. Judicial authority in Islam is impartial and independent. Courts are the judicial authority in Islamic countries. Like commoners, the ruler of the States came before the court and were punished, if found guilty of a crime. 2. Domiciliary inviolability and privacy of the individual In Islam, no one or no authority has right to intervene the privacy of the individual. No one has right to enter any ones private property. Inquiring about the private lives of individuals is strictly impermissible. 3. Freedom of travel In Islam, it is stated that traveling is both, an exemplary and a healthful act, so was always prompted. 4. Right to live Protection of life, property and chastity: This matter has been put forward in the farewell sermon of Prophet Muhammad (PBUH) in the most perfect sense. O people: your lives and your property, until the very day you meet your Lord, are as inviolable to each other as the inviolability of this day you are now in and the month you are now in. Have I given the message? O God, be my witness. So let whoever has been given something for safekeeping give it back to him who gave him it. 5. Social insurance Islam provided for the needy, in view of the facts such as age, sickness, calamities, disasters and accidents. It secured their futures by institutions like Zakat (Almsgiving) and social foundations. 6. Freedom to work, wage equality and justice In Islam, working and making an effort for livelihood are valued and encouraged. In fact, working for the livelihood of ones family is regarded as a form of prayer with the condition of fulfilling obligatory prayers. In addition, Prophet Muhammad (PBUH) has instructed people to pay wages to their workers before their sweat dries out. Workers, on the other hand, should be honest and sincere in their work for the best of the income. 7. Protecting the children In Islam, from the very moment of birth, propagates help to be given to the parents for raising the child and an allowance to be granted from the treasury. Today, in Human Rights and Media Unit 4 Sikkim Manipal University Page No. 179 most of the wealthy Islamic countries, child support enforcement services help needy families. 8. Free and obligatory basic education In the Hadith, to seek knowledge is obligatory unto every Muslim, be it man or woman. Islam makes basic education necessary. Besides, religious, moral and literary education, professional education should also be given. 4.4.3 Human Rights in British India The various struggles for liberty and freedom were aimed at bringing about radical changes in the functioning of various practices and formal bodies. The main purposes of these movements were to bring about sweeping changes within existing systems to enhance the right of people. Most of the struggles for freedom were to bring about democratic ways into the system and propagate the cause of human and civil rights The main focus of the freedom movement was not only to free the country from a colonial rule but also to bring about changes in civil and human rights so that the movement for independence got a balanced support from the masses. All movements related to civil rights and human rights, in India, were influenced heavily by western thinking and philosophy. And most such movements had very successful beginnings in the country. The civil rights movement in the colonial days was the intellectual product of nationalist ideas and had the privilege of having nationalism as a strong, supporting force. But their present day standard-bearers have to reckon, not with foreign rule, but with their own elected sovereign government as the other, the latter having the advantage of using nationalist discourse against the civil rights activists, branding them as subversive and anti-national. The civil libertarians movement was influenced by the Manga Carta, the American Bill of Rights or the French Declaration of the Rights of Man and yet remain nationalists. In the initial phase, the consciousness about the civil liberties was manifested in the demands for equal opportunity in employment, freedom of the press and the abolition of racial discrimination in legal proceedings. One of the many causes which led to the organization of the Indian National Congress in 1885 was the failure of Indians to get the Ilbert Bill passed in its original form, proposing to give Indian magistrates the power to try British subjects in criminal cases. By the turn of the century, this consciousness crystallized in a new generation with new thoughts and new ideas, impatient of its dependent position and claiming its rights as free citizens of the British Empire. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 180 As the colonial State regularly crushed human rights and civil autonomy of the people, the Indian National Movement continually struggled to protect and sustain these values. In reality, bringing down British imperialism was perceived by the leader of national movement as a prerequisite to the progress of India along the lines of democracy and civil liberties. Here, people would have the power to defend their fundamental rights. Obviously, the human rights that the people of India enjoy, in however restricted degree, is a legacy of our national movement. The significance that was accorded to the subject of civil liberties and human rights by our national movement can be effortlessly comprehended by the following statement of Mahatma Gandhi in 1922: We must make good the rights of free speech and free association. We must defend these elementary rights with our lives. Liberty of speech means that it is unassailed even when the speech hurts, Liberty of press can be said to be truly respected when the press can comment in the severest term upon and even misrepresent matters. Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects. In 1939, Gandhiji stated, Civil liberty consistent with the observance of non-violence is the first step towards Swaraj. It is the foundation of freedom. There is no room there for dilution or compromise. It is the water of life. I have never heard of water being diluted. Indian Civil Liberties Union (ICLU) In the year 1936 on the 24 th August in Bombay, the first civil rights body came into existence under the leadership of Rabindranath Tagore and Sarojini Naidu was the working president. It was called The Indian Civil Liberties Union (ICLU). K.B. Menon was the General Secretary. Later branches were set up in Calcutta, Madras and Punjab. The organization collected information about any violation of human rights that was underway in prisons or to monitor any suppression of the press or any ban on literature that amounted to restriction of basic human rights. As a result of the ICLUs campaigns, considerable consciousness about civil rights was created within the major party of the national movement, the Congress. In 1937, when the Congress came to power in some provincial governments for a short period, a circular was sent to all ministries regarding the preservation of civil rights. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 181 4.4.4 Human Rights after Independence In India the status of human rights is not very simplistic. And this is due to the very vastness of this country and its complex diversity. It being a developing nation along with its vibrant democracy and secular nature, adds to the complexities. Freedom to practice any religion is a provision of the constitution of India. Other rights provided by the Constitution are freedom of movement within and outside India and freedom of speech and expression. The separation in the executive and judiciary is also provided for by the Indian Constitution. Even though American Congress Library states that there exists much human rights problems in India, if one were to compare with some other countries in South-Asia, it would seem less in magnitude. While taking all these factors into consideration, the 2010 report of Freedom in the World by Freedom House rated India second in the category of political rights and third in matters of civil rights and thus fetching India the highest rating of a free nation. However the Human Rights Watch reported that India had some grave human rights problems. It reported how India had very low accountability when it came to the armed forces and its actions on civil societies, it had no control over police atrocities and abuses. The brutality and torture that the enforcement bodies subjected the citizens to was not held accountable. The ill-treatment and brutalities met out towards human rights workers in India was closely condemned in 2011 by the United Nations. The concept of human rights is one of those concepts about which one can say that the main ambit is well understood, but the boundaries are often found to be obscure and its area is expanding with judicial activism. In a broad manner, one can say that human rights are those rights which may be legitimately claimed by a person by reason of the fact that he or she is born as human being. In this sense, they are to be considered as common to every human being and do not require any further condition or ingredient for their recognition. Wealth, status, age, gender, nationality, race, religion all these are irrelevant for claiming the enjoyment of human rights. Once it is established that a person is a human being, he or she would certainly be entitled to enjoy human rights. Of course, this does not imply that there may not be any legitimate classifications when human rights are the issue. The exact content and scope of any right may often depend on differentia. In fact, every law that has been enacted by the legislature indicates selection of a particular class of persons for regulation or benefit and Human Rights and Media Unit 4 Sikkim Manipal University Page No. 182 exclusion of others. How far this is permitted or is ought to be permissible, are matters on which many legal contests have been won or lost. The differences in various characteristics of human beings will often justify a difference in treatment. The profession of prostitution cannot claim the same benefits and treatment as does the profession of a doctor or a teacher. The duties of a doctor may be higher than those of ordinary citizens. A public servant may have to sacrifice his or her freedom, in comparison with a person in private employment. In this manner, differences in so many matters may justify differential treatment in relevant sphere. Nevertheless, while all such legislations may justify themselves on the basis of certain special considerations or elements, there will still be need to remember that surpassing the special features of a situation or class of persons, there still survives the basic human element which has to be respected within legitimate limits. Human rights education is universally neglected due to enormous human, social and political costs. Respect for human rights is the very basis of a civilized society and of the republican democratic form of government enshrined in the preamble of the Indian Constitution. A republic is a polity which treats the citizens as sovereign, upon whose consent power becomes legitimate authority. The first lesson in human rights education is that in India there are no subjects but only citizens. The subject is a political inferior who has to render obedience to a political superior, while a citizen is being endowed and defined by possession of certain inherent basic rights limited and holds accountable power of the State howsoever manifested. Accordingly, a major grounding in the concept of citizenship in a republic form of government is indispensable to any human rights education. So, many basic rights of men and women are available to persons who may not be citizens. The very notion of being human carries with it certain rights and immunities, violation of which deprives human persons of their humanity. Even though, it may look philosophical, no process of human rights education can begin without a full understanding of the complexity of idea of being human or being a person. It should be clear that the expression human rights itself requires that the bearer of the rights must be a human being. Therefore, it may even be necessary to postulate universal human rights of a person to be and to remain human. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 183 4.5 Regional Analysis India is an diverse nation having a dynamic press and a powerful judiciary for the protection of fundamental rights. Additionally, the Indian Government has lately set up a human rights commission for taking care of the human rights of each and every Indian citizen. Despite this, almost every state in India has been facing the problem of human rights violations . The Government is under pressure from various human rights organizations to take stringent measures to check and reduce the number of violations. 4.5.1 Rights Situation in North-East Three regions of India Punjab, J&K and N-E states have been demanding separation from the Indian republic since independence. The Khistani movement of Punjab was a menace in the 1980s but the state mechanism managed to curb that with military and political action by 1990. Yet the insurgency problems due to demands of separation in J&K and North Eastern States, continue to challenge the India government. Official spokesperson often term people seeking secession in various states as terrorists and such activities are termed as terrorist activities in national and local media since journalists depend heavily on official sources for news feed. The two regions of J&K and the North East are often termed by Indian government as troublesome areas due to secession demands and related activities. The seven North-East states of Assam, Manipur, Nagaland, Tripura, Mizoram, Arunachal Pradesh and Meghalaya, have been since independence, in the grip of multiple conflicts. There is demand for secession, terrorism, insurgency, ethinic issues, cultural clashes, local autonomy, tribal conflicts, the problem of illegal cross- border migration from neighbouring countries, etc. And the nature of these conflicts is more often than not violent and hence the Indian officials have to resort to counter insurgency measures which often lead to human rights violation. More than 50,000 lives have been lost since 1947 due to various conflicts in this region. The differences between the mainland and the states of North East exist in the region of ethnicity, religion, language, culture and much more. It has created a scenario of them versus us. The basis of these conflicts is historical. The separateness of the regions often influences debates in the political groups and policy makers. The uniqueness of the regions is also not highlighted in the mainstream English and Hindi media which is mostly interested in Hindu- Human Rights and Media Unit 4 Sikkim Manipal University Page No. 184 Muslim politics or news on celebrities. The media generally neglects responsible reporting from these areas due its preoccupation with other more entertaining news. Strong reactions are often evoked from the rest of India whenever demad for separate states are made by the north eastern states and huge number of military forces is applied to counter this uprising. This however has resulted in various forms of human right violation, some which can be proved some which cannot be, Human right violation reports range from burning, torture, killing or even gutting of whole villages. International Human Rights bodies have been reporting such violations and the Indian Government has also set up the National Human Rights Commission to look into atrocities committed by the Indian military and security forces. The state officials however counter this by saying that murders and killings committed by the insurgency groups are also human rights violation and need to be looked into on equal footing. The Human Rights bodies see the Armed Forces (Special Power) Act 1958 as a major culprit. This law is used to enforce draconian rules in any State that faces distrubance. The law permits any military or para-military officer to arrest, shoot or kill anyone who is simply suspected of being a terrorist. An Amnesty International briefing on the law stated: The AFSPA empowers security forces to arrest and enter property without warrant and gives the security forces power to shoot to kill in circumstances where members of the security forces are not at imminent risk. It facilitates impunity because no person can start legal action against any members of the armed forces for anything done under the Act, or purported to be done under the Act, without permission of the Central Government (Amnesty 2005). The power to declare any area as troubled is vested in Section 3 of AFSP Act. The section states, If, in relation to any state or Union Territory to which this act extends, the Governor of that State or the administrator of that Union Territory or the Central Government, in either case, if of the opinion that the whole or any part of such State of Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be , may by notification in the Official Gazette, declare the whole or such part of such State or Union territory to be a disturbed area. (have not rewritten since this seems to exactly how the act is states so no need to rewrite) Amendments to the AFSPA made in 1972 granted the authority to the Central Govenrment, to declare any area as disturbed as per the main Act. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 185 Earlier this power vested with the State Governments. The Supreme Court in the case of Inderjit Barua v State of Assam, AIR 1983 Del. 514, held that the Governor is empowered to declare any area of the State as disturbed area and yet it could not be an arbitrary decision without any legislative guildlines. The Court also held in the case of Naga Peoples Movement of Human Rights v Union of India, AIR 1998 SC 431, that Section 3 cannot be construed as conferring a power to issue a declaration without any time limit. There should be periodic review of the declaration before the expiry of six months. The special powers of the military forces are stated in the Section 4 of the AFSP Act. According to this section, Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area: (a) If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances; (b) If he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence; (c) Arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest; (d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises and may for that purpose use such force as may be necessary. In the case of InderjitBarua v State of Assam, AIR, 1983 Del 514, the Supreme Court held that conferment of power on non-commissioned officers like a Havaldar cannot be said to be bad and unjustified. Further, in Luithukia v Rishang Keishing, (1988) 2 Gau LR 159, the Court held that the armed forces must act in cooperation with the district administration and not as an Independent body. Armed Forces could work in harmony when they are deployed in disturbed area. According to Section 5 of the AFSP Act, Any person arrested and taken Human Rights and Media Unit 4 Sikkim Manipal University Page No. 186 into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest. In the case of Horendi Gogoi v. Union of India, (1991) Gau CR 3081, the Apex Court held that in case of arrest of any person, army authority is duty bound to handover to the officer-in-charge of the nearest police station with least possible delay. In the case of Naga Peoples Movement for Human Rights etc. v. Union of India, the Supreme Court held that a person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate. As you have seen in Unit 1, the above is in conformity with Article 22 (2) of the Constitution. (In this para I did not rewrite since they are judgments lifted straight out of cases) The people performing actions under the orders of the AFSP Act are protected by the Section 6 of this Act. It states that No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act. The sate of Maniour has been under the enforcement of this Act since 1980 due to several insurgency issues. And since then numerous human rights violation have been recorded in this state. Cases of murders, killingsm torture destruction of property and much more have been recorded by the internation human right bodies. Voices have been raised several times for the lifting of the act from this state. And a chain of events like the bombing of a convoy of Assam Rifles, a security force involved in counter-insurgency operations, in Malom on 2 November 2000 in retaliation to which, Assam Rifles soldiers reportedly went berserk and killed 10 civilians, have further intensified the campaign for the the lifting of the AFSPA from the state. An online campaign to repel the act from the state intensified after these events. Websites such as Manipuronline.com, E-Pao.net (pao stands for mail in Manipuri), Kanglaonline.com and The SangaiExpress.com started to display and broadcast news on various insurgency and counter insurgency issues. Online reporting and social networking sites created awareness among human rights activists from all over the country and this helped to motivate protests. Irom Sharmila Chanu, the Maniouri poet, who has been on a unique form of protest to seek the attention of national and international human rights bodies on the state of affairs in the Manipur, has been helping the movement to gain momentum. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 187 After the death of 10 civilians she has gone on a hunger strike till death, similar to Gandhiji. She is now in jail and being force fed. 4.5.2 Rights Situation in Kashmir Along with the damage to life caused by militancy and terrorism in Kashmir, the violation of human rights as inflicted by the Indian military forces has been also been very disturbing. Human rights violation in Kashmir by the Indian army has been documented as amounting murder, torture, rape, detentions and illegal killings. These have been documented in detail by Human Rights Watch, PUCL (Peoples Union for Civil Liberties) and others. Much of the violation goes un- noticed, unrestricted or without any reprieve later on. The official say this is required to counter a proxy war waged by Pakistan on India. Very few violations have seen the daylight of justice. Exhibit Indian Express Mon May 16 2011, 16:04 hrs Srinagar Zero tolerance for human rights violations in Kashmir: Army Calling for Zero Tolerance regarding human rights violations, a senior Army commander said power does not flow from the barrel of the gun but by upholding the dignity of people and respecting their sentiments. Power does not come from the muzzle of the gun, but by upholding the dignity of the people and respecting their sentiments, General Officer Commanding of the Srinagar-based Chinar Corps Lt General S A Hasnain said at a seminar on human rights. Lt Gen Hasnain also said Army would try to win over hearts and use that as its main weapon in combating insurgency in Kashmir. Chief of Armys Northern Command Lt General K T Parnaik in his address commended the track record of Indian Army in upholding human rights despite challenges. He stressed on the use of minimum force and acting in good faith. Spread over two sessions, several personalities including former Army Generals, High Court Judges, Vice Chancellors, journalists and writers took part in the seminar. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 188 4.5.3 Rights Situation in Uttar Pradesh Uttar Pradesh continues to be lawless and has prevalent instances of widespread human rights violations. According to the state police figures, a total of 1, 18, 195 cases were recorded under the Indian Penal Code (IPC) in the year 2006 in comparison to 1, 17, 748 cases in the year 2005. These comprised 5,482 murders, 3,420 insurgencies, 109 abductions for money, 1,795 dowry killings and 1,161 rapes, etc. Human rights violations also involved desecration of the right to life, owing to alleged fake encounters, torture and unrestricted utilization of weapons. The state of Dalits continued to be appalling in Uttar Pradesh. On the basis of the State Polices records, a total of 4,104 crimes against the Scheduled Castes (SCs) and Scheduled Tribes (STs) had been recorded during the year 2006. These comprised 312 murders, 302 serious injuries, 212 rapes, 50 cases of arson and 1,320 cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Child employment was widespread in Uttar Pradesh. The Moradabad brassware manufacturing units perpetually exploited children regardless of the ban on child labour. There were approximately 18,000 children who worked in furnaces and additional 20,000 - 25,000 children who worked in the in casting and scrapping operations of the brassware industry. These children were exposed to vapours and gases which affected the respiratory track resulting in various diseases of the lungs such as tuberculosis. Nevertheless, the wages they were paid ranged only from `7 to `15 per day. Self-Assessment Questions 5. Fill in the blanks with the appropriate words. (a) The ________ simply became a code of law and texts like Manusmriti became laws of Manu. (b) The complex rituals of the _____ period had become the monopoly of a small elite class of literate ritual performers, mainly the Brahmins. 6. State whether the following statements are true or false. (a) Karma is one of those Sanskrit words that defy all attempts at an exact rendering in English or any other language. (b) There is a very clear reference to the existence of judicial organization in the Vedic period. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 189 4.6 A Balance Sheet of Human Rights in India Human rights are the common standard of achievement for all people and all nations. Human rights can related to right to life liberty, equality and dignity of the individual and any other right that is guaranteed by the International Declarations, Covenants, or the National Laws. They are declared in various conventions and declarations such as the United Nations Declaration and International Covenant (i.e., the Universal Declaration of Human Rights, 1948 and Agreement on Civil and Political Rights (1966) and Agreement on Economic, Social and Cultural Rights (1966) and U.N Convention on the Rights of the Child (1989), the Constitution of India, Special human rights legislation like the Protection of Human Rights Act, 1993, the Code of Criminal Procedure 1973, etc. These rights take into account diverse needs of human beings and each declaration works to serve the other. But in order to makes sure that these right are enforced one particular body needs to recognize them. For example India is a signatory to the UN Declarations and International Covenants, but this only has binding effect at the inter-governmental level. The courts may or may not take this into notice while deciding any human right violation case. Fundamental rights as enumeraeted in Articles 14, 19, 21, or 22 of constitution of India can be used to enforce human rights by remedies found in Article 32, 226 and 227. The Code of Crimimal Procedure or Indian Evidence Act also recognize some deeper forms of human rights violations. Human Rights Act, 1993 under Section 12, 18, 19, 20 also protect human right violation in the society by specialized procedures. 4.6.1 Human Rights and the Constituent Assembly As rational living beings human beings have a few basic and fundamental rights that are collectively known as Human Rights. These rights are intrinsic to the very nature of all human beings and hence the moment a human being is born they come into existence. The Constitution of India also provides certain basic rights to tis citizens and these are called fundamental rights and are stated in Part III of the Constiotution in Articles 14 to 35. These rights stated in Universal Declaration of Human Rights and also those which are provided in International Covenant on Civil and Political Rights and International Rights on Social, Economic and Cultural Rights are similar to the Fundamental Rights as stated in the Indian Constitution. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 190 Self-Assessment Questions 7. Fill in the blanks with the appropriate words. (a) ______ rights are the common standard of achievement for all people and all nations. (b) Human rights that are recognized under the provisions of Code of Criminal Procedure or the Indian ______ Act may go deeper and vitiate the criminal proceeding itself. 8. State whether the following statements are true or false. (a) For the purpose of legal enforcement, the fact of recognition by a particular source is least important. (b) The Constitution of India, as adopted in 1950, provides certain rights to its citizens known as fundamental rights. 4.7 Judicial Protection for Human Rights Human rights are legal entitlement possessed by all by virtue of being humans. They stand for human dignity. They are universal but inalienable. They are protected by international treaties and instruments, customary laws, constitutions domestic laws and are enforceable. Human rights are available to all humans against the excesses of state. Human rights are not an exclusively Eurocentric idea. They have evolved with each religion, culture and customs. In the Indian culture, from Rigveda to Manusmiriti to Ashoka Human Rights, humanitarian principles have been the cornerstone of our national culture. The Indian freedom movement is a saga of struggle for the basic rights of a man. The UN has enacted numerous multilateral treaties and instruments for giving human rights a legal base and also an enforcement mechanism to ensure compliance by the involved states. The most prominent among them are i. International Bill of Rights ii. UDHR-1948, ICCPR and ICESCR of 1966 and 1st Optional Protocol to ICCPR iii. Convention on Genocide iv. The Refugee Convention v. ICERD Human Rights and Media Unit 4 Sikkim Manipal University Page No. 191 vi. CEDAW vii. CAT viii. CRC The UN has also passed many guidelines and directives for effective implementation of human rights. UNs Tehran Conference adopted structural approach in 1968, by recognizing the diversity of political systems, cultural differences and varying levels of development and application of human rights standards accordingly. Human Rights are a dynamic concept allowing its three generations to coexist simultaneously. At the same time, it allows varying emphasis on effectiveness according to capabilities of states party to implement them. The UN has effective enforcement machinery built in each of the legal and specialized instruments. Respective high powered committees oversee their working and can investigate noncompliance of major deviations. The UN also has various investigative procedures to examine gross violations of human rights. India has enacted the Protection of Human Rights Act 1993 and has constituted the National Human Rights Commission to look after all individual complaints against the acts of the State. Most states in India have state human rights commissions whose functions are similar to those of the NHRC in a State. 4.7.1 Three pioneer principles as the essence of human rights From the viewpoint of the Criminal Justice Administration, the spirit of human rights is preserved in three great rules or principles. All three principles may have a number of sub-principles. Out of these principles, legality is the first. It means that predetermined laws decide the substantive standards pertaining to behaviour and sanctions as well as procedural standards. Also, limitations and restrictions valid to substantive procedural laws that favour the human rights shall be adequately clear and specific to eliminate illogical executive action. Besides, it means that individuals subjected to the criminal procedure shall be treated by the same token without consideration of wealth. In the ambit of legality, personal freedom restricting processes must abide by some law emerging from both, the exercise of statutory power or through judicial procedure. The second principle refers to the due respect to the individual involved in the criminal procedure, which means that at the substantive and procedural levels, the dignity of the accused (the victim, witness, etc.) must be regarded. It implies that measures such as torture, inhuman and degrading treatment or punishment must be prohibited. It calls for the equal interest shown by the accused as well as the victims in case they want to be safeguarded. It also implies that Human Rights and Media Unit 4 Sikkim Manipal University Page No. 192 the accused is presumed to be innocent, until he is proven guilty of the crime following legal rules. Last but not the least; the third principle refers to the equality of criminal justice. It implies the observance of some minimum standards that are followed in several criminal procedures, for instance, independent and unbiased judiciary, trial to be held in open or in front of public, equal access to officially authorized counsel and free of charged legal aid in case of poor, information about grounds of arrest and accusation and access to data or facts, right to be set free on bail and immediate trial. 4.7.2 Custodial Violence in Brief Torture Laws related to torture such as customary law, domestic laws, constitutions, Geneva Conventions, etc., prohibit torture in any form, as it de-humanizes people. This prohibition is non-derogable in any circumstances including emergency and war. Torture, in which a person is intentionally subjected to extreme physical pain or emotional distress, is mainly used to elicit information, break the will to resist, intimidate, humiliate and degrade, unless is arises from, or is inherent in or is incidental to lawful sanctions. The convention against torture and other cruel, inhuman or degrading treatment or punishment is a specialized legal UN multilateral treaty. It stipulates the following: 1. Exceptional circumstances or superior orders will not be valid excuses or mitigating circumstances 2. No limitations as to nationality of accused or place of crime 3. Acts of torture be promptly and impartially investigated and timely, fair and adequate compensation be given Article 20(3) and 21 of Indian Institution, Section 29 of the 1861 Police Act, Sections 330 348 of IPC, Sections 24, 25 and 163 of Evidence Act, Articles 14 & 15 of Covenant of Civil and Political Rights, Art 5 of the Code of Conduct for Law Enforcement Officers and Rule 6 & 21 of UN Body of Principles for Protection of all Persons Under Any Form of Detention or Imprisonment contain provisions prohibiting torture. Custodial death Custodial violence and custodial death cause a chasm between police and public and it is further widened due to increase in the number of such cases, media Human Rights and Media Unit 4 Sikkim Manipal University Page No. 193 exposure and public awareness. There are administrative, social, professional, psychological etc factors. Lack of probity in public life, lack of specialized investigating skills, incentives and rewards, sheer callousness etc are other reasons. Transparency in arrests, medical examination at given intervals, honest maintenance of records, increasing of awareness about human rights, improving interrogation skills, etc., are some of the means of reducing incidences of custodial violence and deaths. (1) Human Rights vs Role of a Police Officer The police force is a service created by law and is responsible for: 1. Maintaining and enforcing law 2. Maintaining public order 3. Rendering aid and assistance in emergencies There are no standard problems or solutions in police work. Understanding the responsibilities and spirit of law and the art of applying it to the unique circumstances of the problem in hand, is the hallmark of a police officer. This gives him a lot discretion which must not be illegal, indiscriminate or arbitrary. To effectively manage its mandate the police force has been given many powers and authorities, which one must know. It is also important to know their potentially harmful and corrupting effects. The code of conduct, value system and ethics are the beacon and the cherished goal is public trust. Self-ethics, group ethics and professional ethics affect the attitude and performance of the police force. While performing a law enforcement task one must question: Its legality Its necessity Its proportionality There are many national and international guidelines which set out directives and codes for professional ethics. Most of them are not legally binding but enjoin upon all law enforcement officials to conduct their professional lives by these codes. Some of the important ones are: 1. A code of conduct for police in India 2. UN code of conduct for law enforcement officials 3. UN basic principles for the use of force and firearms 4. Convention against torture Human Rights and Media Unit 4 Sikkim Manipal University Page No. 194 5. Effective prevention and investigation of extra legal, arbitrary and summary executions 6. Basic principles of medical ethics 7. Body of principles for the protection of all persons under any form of detention or imprisonment 8. UN basic principles of justice for victims of crime and abuse of power Activity 2 List a few acts of human rights violation in your city/town, which you know of. Self-Assessment Questions 9. Fill in the blanks with the appropriate words. (a) Human rights are not an exclusively ______ idea. (b) The convention against torture and other cruel, inhuman or degrading treatment or punishment is a specialized legal UN _______ treaty. 10. State whether the following statements are true or false. (a) From the viewpoint of the Criminal Justice Administration, the spirit of human rights is preserved in five great rules or principles. (b) Understanding the responsibilities and spirit of law and the art of applying it to the unique circumstances of the problem in hand, is the hallmark of a police officer. 4.8 Summary Let us recapitulate the important concepts discussed in this unit: The issue of human rights is an intricate and multi-faced phenomenon. Through different periods of history, human rights have always preserved their political and legal identity, although they were now and then given a religious, ethnic or philosophical colour. The Right to Equality has been described in Article 14 of the Constitution of India. Human Rights and Media Unit 4 Sikkim Manipal University Page No. 195 Political rights are those rights the which citizens are provided with in the political life of the community, including those related to the management of government. They generally comprise the following rights: Right to vote, Right to be elected, Right to public offices, Right to petition, Right to criticize government, Right to residence, Right to protection while staying abroad and Right to public meeting. The right to privacy offers itself as an exhibit of the higher judiciarys capacity to interpret and the right originating as an effect of the bigger process of stretching the realm of particularly listed fundamental rights. which shall be critically scrutinized in the perspective of the Supreme Courts verdict, in the case of Kharak Singh. Although the Constitution of India provides no definition of the word Minority and only talks about Minorities and those groups, on religious or linguistic grounds, the rights of the minorities have been elaborated within the Constitution, in detail. The Constitution provides two categories of rights of minorities. These two categories can be divided into common and separate domains. The rights which are part of the common domain are those that apply to every Indian citizen. The rights which are categorized as separate domain are those which apply to the minorities only and these are directed at protecting their identity. A significant characteristic of the Constitution are the Directive Principles of the State Policy. Though the Directive Principles are affirmed to be the base of the governance of the country. They cannot be legally enforced. However, they are the guiding principles for building a social order distinguished by social, economic and political justice, liberty, equality and fraternity as articulated in the preamble of the constitution. This unit also gave an overview of the human rights scenario in ancient India and the salient features of the justice system in ancient India, with respect to the cosmic order in pre-classical Vedic law, Dharma and the classical Hindu law. The Islamic viewpoint of human rights can be evaluated by the fact that in the basic feature of Islam is that it allocates some rights to man as a human being. To put it across more precisely, it states that every human being, irrespective of whether he is a citizen of this country or not, whether he is a Muslim or a non-Muslim, whether he lives in the woods or a desert, Human Rights and Media Unit 4 Sikkim Manipal University Page No. 196 some basic human rights are applicable to him just because he is a human being. These rights should be recognized by every Muslim. In fact it is the duty of every Muslim to fulfil these obligations. In the British-ruled India, the State consistently exploited human rights and civil autonomy of the people, the Indian National Movement was involved in a frequent struggle to defend and uphold these values. The Constitution of India came into existence on 26th January 1950. The affect of the Universal Declaration of Human Rights (UDHR) is evident in Part III of the Constitution and in other sections too. Pertaining to this topic it is vital that a focused reference be given to Article 21 of the Constitution. 4.9 Glossary State of affairs: A combination of circumstances that are applicable within a society, or a group, or a country, at a particular time Colonial territory: A territory that falls under direct political control of a State Scheduled castes: Economi cal l y and soci al l y di sadvantaged communities of India Public office: A position or occupation established by law for the purpose of exercising the authority of the government in the service of the public Petition: A officially documented request, especially one that is signed by a large number of people with the purpose to appeal to the authority concerning a specific cause Right to Privacy: Law that is concerned with the function of protecting and preserving of privacy rights of individuals Article 21: An Article of the Indian Constitution that says that No person shall be deprived of his life or personal liberty, except according to procedure established by law. Minorities: A section of people who are racially or politically different from a larger group of which it is a part Multiculturalism: The act of accepting or promoting multiple ethnic cultures, applicable to the demographic set-up of a specific region or country Dharma: A term in Hinduism that stands for ones righteous duty Human Rights and Media Unit 4 Sikkim Manipal University Page No. 197 4.10 Terminal Questions 1. What do you mean by political rights? 2. What is right to privacy? State the right to privacy in India. 3. How the rights relating to minorities are protected in the constitutional scheme of India? 4. Discuss the role of human rights in ancient India. 5. What was the position of human rights in India after independence? 4.11 Answers Answers to Self-Assessment Questions 1. (a) State; (b) Democracy 2. (a) True; (b) False 3. (a) Separate; (b) Part III 4. (a) False; (b) True 5. (a) Dharmasastra; (b) Vedic 6. (a) True; (b) False 7. (a) Human; (b) Evidence 8. (a) False; (b) True 9. (a) Eurocentric; (b) Multilateral 10. (a) False; (b) True Answers to Terminal Questions 1. Refer to Section 4.2.2 2. Refer to Section 4.2.4 3. Refer to Section 4.3.5 4. Refer to Section 4.4.1 5. Refer to Section 4.4.4 Human Rights and Media Unit 4 Sikkim Manipal University Page No. 198 4.12 Further Reading 1. Nangia, S.B. Human Rights in India Issues and Perspectives. New Delhi: A.P.H. Publishing Corporation, 2000. 2. Das, Asish and Prasant Kumar Mohanty. Human Rights in India. New Delhi: Sarup and Sons, 2007. References Brandeis, Louis;Warren, Samuel(1890). The Right to Privacy.Harvard Law Review, 1890. Collected Works of Mahatma Gandhi. University of Virginia, 2011. Unit 5 Indian Constitution and Human Rights Structure 5.1 Introduction Objectives 5.2 Critical Evaluation of Human Rights in the Constitution of India 5.3 Human Rights and Relevant Articles in Indian Constitution: An Appraisal 5.4 Indian Constitution and UN Declaration on Human Rights 5.5 International Covenant on Economic, Social and Cultural Rights (ICESCR) and India 5.6 Human Rights: Chinese and US Constitutions 5.7 Summary 5.8 Glossary 5.9 Terminal Questions 5.10 Answers 5.11 Further Reading 5.1 Introduction In this unit, you will learn about the constitutional protection to human rights in India. The Constitution of India was inspired by the goals set out in the Universal Declaration of Human Rights (UDHR), 1948. The Preamble to the Constitution of India underlines the need to secure to all citizens justice, liberty, equality and also dignity of the individual as important values. A number of civil and political rights, such as the right to equality, freedom of speech, right to life and personal liberty, prohibition of traffic in human beings and forced labour, freedom of conscience and free profession, and freedom of practice and propagation of religion, have been enshrined in our Constitution . In case of infringement of any Fundamental Right, the right to move the Supreme Court for issuing appropriate directions or orders or writs is also a Fundamental Right. A number of economic, social and cultural rights (based on the Directive Principles of State Policy), such as the right to education, health and work, have been provided by the Constitution of India . The principles laid down in the Directive Principles of State Policy are fundamental in the governance of the country. This unit will also introduce you to various international human rights instruments and their application in India. India was actively involved in the drafting of the UDHR. The Indian delegation at the UN meet on human rights, headed by Dr Hansa Mehta, gave significant inputs in the preparation of the Declaration. India completely adheres to the rights established by the UDHR. Today, the Human Rights and Media Unit 5 Sikkim Manipal University Page No. 200 country is a party to six core human rights instruments of the UN, including the International Commission on Human Rights (ICHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), and two optional protocols to the convention of the rights of the child. Objectives After studying this unit, you should be able to: Evaluate the role of the Constitution of India in protecting human rights in the country Describe the provisions under the various Articles of the Indian Constitution that cover the Fundamental Rights, Directive Principles of State Policy and Fundamental Duties Discuss how Indian Constitution has promoted the UN Declaration on Human Rights Identify the various international human rights instruments and describe their application in India Compare the human rights provisions in the Chinese Constitution with those in the US Constitution 5.2 Critical Evaluation of Human Rights in the Constitution of India The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties in the Constitution of India lay down the fundamental obligations of the State to its citizens and vice versa. These include a constitutional bill of rights for government policy-making as well as the behaviour and conduct of citizens. 5.2.1 Fundamental Rights The Indian Constitution, which came into effect in 1950, has provisions for specific rights for the citizens of India. These rights are referred to as Fundamental Rights. Fundamental Rights resemble the rights which have been given in the UDHR and those which are a part of the International Covenant on Civil and Political Rights (ICCPR). They are also very much similar to the rights listed in the International Agreement on Social, Economic and Cultural Rights (ICESCR). Human Rights and Media Unit 5 Sikkim Manipal University Page No. 201 The Part III Fundamental Rights of the Indian Constitution is a charter of rights. It contains a pledge that grants civil rights to every Indian so that he can live peacefully and pleasantly as a citizen of India. Fundamental Rights contain individual rights which are universal to almost every liberal democracy, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practise religion and the right to constitutional remedies for safeguarding civil rights through writs like habeas corpus. Those who violate these rights are penalized according to the Indian Penal Code. These punishments are subject to discretion of the judiciary. Fundamental Rights are referred to as basic liberties of human beings which all citizens of India are entitled to avail for a constructive and amicable personal growth. These rights are commonly applicable to every citizen, irrespective of tribe/ethnic group, region of origin, religious conviction, social background, caste/creed, colour or sex. They are made mandatory by the court of law, subject to certain restrictions. These rights have originated from various sources, including Englands Bill of Rights (1689), the US Bill of Rights (1791) and Frances Declaration of the Rights of Man (1789). The Indian Constitution provides for the following six basic rights: 1. Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; equality of opportunity in matters of employment; and abolition of untouchability and titles. 2. Right to freedom, which involves freedom to speak and express; right to assemble, associate or form unions; right to movement and residence; and right to practise any profession or occupation . 3. Right against exploitation, which prohibits every category of enforced labour, child labour and trafficking of human beings. 4. Right to freedom to practise ones religion, which includes freedom of conscience and free profession; freedom of practice and propagation of religion; liberty to manage religious matters, exemption from certain taxes; and freedom from religious instructions in selected academic institutions. 5. Cultural and educational rights, which protect the right of citizens from all walks of life to preserve their traditions, language or script. Right of minorities empowers them to set up and run educational institutes according to their preferences. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 202 6. Right to constitutional remedies, which gives the citizens the power to move the Supreme Court of India for seeking enforcement, or to protect their Fundamental Rights from being violated. Note: Articles covering the Fundamental Rights are discussed in detail in sub-section 5.3.1. Evolution fundamental human rights The evolution of constitutionally guaranteed fundamental human rights in India may be summarized as follows: Rowlatt Act (1919): The Rowlatt Act empowered the British government and the police extensively, such that they could indefinitely arrest and detain individuals, carry out searches without warrants and seize anything. They could restrict public gatherings and censor the media and publications extensively. The public opposed this Act and demanded a guarantee of civil freedoms and restrictions on government power. Indians were specifically affected by the independence of Ireland and the growth and progress of the Irish constitution. In addition to this, the directive principles of state policy in Irish constitution were considered as an inspiration by Indians. Nehru Commission (1928): The Nehru Commission (comprising representatives of Indian political parties) recommended the fundamental rights , representation for religious and ethnic minorities and restriction on the powers of the government. Karachi Congress (1931): In 1931, the Indian National Congress passed resolutions to commit itself to defend fundamental civil rights, as well as socio-economic rights like that of minimum wages and the abolition of untouchability and serfdom. Constituent Assembly (1947): When India achieved independence on 15 August 1947, the task of creating a constitution for the nation was taken up by the Consti tuent Assembl y of Indi a (compri si ng el ected representatives). A noteworthy change in that period, which deeply influenced the members of the Constituent Assembly, was the adoption by the United Nations General Assembly of the Universal Declaration of Human Rights on 10 December 1948. The General Assembly ordered all member states to incorporate these rights in their respective constitutions. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 203 Significane The Constitution has fundamental rights, as part of it, since they are considered to be very critical for the personal progress and development of all individuals and for safeguarding their dignities. The people who wrote the Constitution considered that democracy would be of no use if civil liberties, such as freedom of speech and religion, were not acknowledged and protected by the State.
It was their viewpoint that democracy in essence was a government by opinion, and hence, the people of a democratic nation should be able to access and avail the means to formulate public consensus. This was the purpose for the constitution providing a guarantee to every citizen of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights. Every individual, irrespective of race, religion, caste or sex, has been given the right to move the Supreme Court and the High Courts for the purpose of enforcing his/her fundamental rights. A grievance is not a necessity for any person or group to do so. Poor people do not have the resources or are not able to afford to do so. Hence, anyone has the option to commence litigation in the court on their behalf. This facility has been introduced keeping public interest in mind. This can be defined as public interest litigation. In a few of the cases, High Court judges have taken their own initiatives, based on the reports in newspapers. The function of Fundamental Rights is not just to protect but also to prevent widespread violation of human rights. Their focus is on the basic unity of India, by assuring that every citizen is able to gain equal accessibility and use of the same facilities, without any discrimination on the basis of background. There are a few Fundamental Rights that are applicable to people of every nationality, while others are applicable only to Indian citizens. Every person has the right to life and personal liberty as equally as he has the right to freedom of religion. On the other hand, freedom of expression and freedom of residence and settlement in any region or territory of India are reserved only for Indian citizens, which include non-resident citizens of India. The right to equality in issues related to public employment cannot be bestowed upon Indian citizens who live abroad. The prime goal of Fundamental Rights is to protect individuals from any random actions of the State. However, there are certain rights which can be enforced against individuals, for example, the Constitution abolishes untouchability and also prohibits begging. These provisions suffice to check both, the action of the state as well as the action of private individuals. Nevertheless, these rights are not unconditional or beyond jurisdiction and are Human Rights and Media Unit 5 Sikkim Manipal University Page No. 204 subject to rational limitations, as essential for protecting the overall progress. A process of selective curtailing cannot be ruled out. The Supreme Court has given a verdict that all provisions of the Constitution, inclusive of Fundamental Rights, can undergo amendments. Nevertheless, the Parliament cannot incorporate changes to the fundamental structure of the Constitution. Aspects like secularism and democracy fall in this category. Since it is only possible to alter Fundamental Rights by a constitutional amendment, including them acts as a check not only on the executive branch but also on the Parliament and state legislatures. A state of national emergency adversely affects the Fundamental Rights. In such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) continue to be suspended. Hence, in these circumstances, the legislature may frame laws which oppose the rights listed in Article 19. In addition to this, the President may by order suspension of the right to move court for enforcing other rights as well. Criticism The Fundamental Rights have been criticized for many reasons. The right to work; the right to economic assistance in case of unemployment and old age; and similar rights should be enshrined as constitutional guarantees to address issues of poverty and economic insecurity. The right to freedom and personal liberty has a number of limiting clauses, which have been criticized for failing to check the sanctioning of excessive powers. Fundamental Rights can be suspended during emergency. The Acts, such as the Maintenance of Internal Security Act (MISA) and the National Security Act (NSA), provide for excessive powers to the executive to fight internal and cross-border terrorism and political violence. While implementing these Acts, the government and its agencies often fail to defend civil rights. The phrases security of State, public order and morality in MISA and NSA are of wide implications. The meaning of phrases like reasonable restrictions and the interest of public order have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. The freedom to assemble peaceably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 205 5.2.2 Directive Principles of State Policy The Directive Principles of State Policy contained in Part IV of the Constitution were adopted from Ireland. These directives set out aims and objectives to be taken up by the states in the governance of the country. They are the ideals which the Union and State governments must keep in mind. They are in the form of instructions/guidelines to the governments at the center as well as states. Though these principles are non-justifiable, they are fundamental in the governance of the country. They are incorporated in our Constitution in order to provide economic justice and to avoid concentration of wealth in the hands of a few people. Therefore, no government can afford to ignore them. They are, in fact, the directives to the future governments to incorporate them in the decisions and policies to be formulated by them. Note: The various Articles covering the Directive Principles of State Policy are discussed in detail under sub-section 5.3.2. Fundamental object behind the Directive Principles The founding fathers of the Constitution were keen on providing socio-economic justice. With this aim, they wanted to include in the Constitution several rights, which are included in Part III in the form of Fundamental Rights. But all the rights could not be enlisted in the category of Fundamental Rights therefore Part IV was included in the form of Directive Principles of State Policy. Under the Directive Principles of State Policy, the state is directed to secure a social order for the promotion of welfare of the people; to promote social and economic justice; to provide just and humane conditions at work places; and to promote internal peace and security. The idea of welfare state can be achieved if the states endeavor to implement them with a high sense of moral duty. 5.2.3 Fundamental Duties Fundamental duties were added under Part IV-A of the Constitution of India by the 42nd Amendment in 1976. This part originally specified ten duties to followed by the citizens of India, but later a new duty was added by the 86th Amendments Act 2001, which added Clause (K) to Article 51-A. Note: Article 51-A is discussed in detail under 5.3.3. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 206 Self-Assessment Questions 1. Fill in the blanks with appropriate words. (a) resemble the rights which have been given in the Universal Declaration of Human Rights. (b) The Directive Principles of State Policy in the Constitution of India have been adopted from. 2. State whether the following statements are true or false. (a) The right to economic assistance in case of unemployment and old age is a Fundamental Right. (b) Fundamental Duties were added in the Constitution of India by the 44 th Amendment. 5.3 Human Rights and Relevant Articles in Indian Constitution: An Appraisal As already mentioned, the Fundamental Rights are defined as the basic human rights of all citizens. These rights apply irrespective of race, place of birth, religion, caste, creed or gender. The Directive Principles of State Policy function as guidelines for the government to frame laws . The Fundamental Duties are the moral obligations of all citizens to help in promoting a spirit of patriotism and upholding the unity and integrity of India. 5.3.1 Articles Covering the Fundamental Rights Articles 12 to 35 of the Indian Constitution cover the Fundamental Rights of the citizen of the country. According to Article 12, the term State, for the purposes of the chapters on Fundamental Rights and Directive Principles, includes all authorities within the territory of India. According to Article 13, the State shall not make any law which takes away or abridges the rights conferred by the Part III of the Constitution and any law made in contravention of this clause shall, to the extent of the contravention, be void. Other Articles can be classified as follows: 1. Right to Equality: Articles 14, 15, 16, 17 and 18 Right to equality is an important right of the constitution. It is the principal foundation of all other rights and liberties. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 207 General principle of right to equality before law (Article 14) Article 14 embodies the general principle of right to equality before law. It says: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 14 talks about equality before law and equal protection of law. The equality before law does not mean absolute equality among all the human beings. It means that every one shall be treated as equals and not receive any special privileges on the ground of birth creed, etc. According to Dr Jennings: Equality before law means that among equals the law should be equal and should be equally administered, that like should be treated alike. The right to sue and be sued, to prosecute and be prosecuted for the same kind of action should be same for all citizens of full age and understanding without distinction of race, religion, wealth, social status or political influence. On the other hand, equal protection of law means that all the persons should be treated alike in the similar circumstances. The equal protection of law guaranteed by Article 14 does not mean that all the laws should apply to all persons. It does not mean that every law must have universal application for all persons or not by nature, attainment or circumstances in the same position. The varying needs of the different classes of persons often require separate treatment. In case of Abdul Rehman v Pinto, 1951, the Andhra Pradesh high court held that from the very nature of the society, there should be different laws in different places and the legislature controls the policy and enacts laws in the best interest of the safety and security of the state. The court further held that, in fact identical treatment in unequal circumstances would amount to inequality. So a reasonable classification is necessary for the progress of society. So Article 14 talks about equality and forbids class legislation but it does not forbid classification. However the classification must not be arbitrary, artificial or evasive and must be just and reasonable. In case of E.P. Royappa v State of Tamil Nadu, 1974, the Supreme Court of India held: Equality is a dynamic concept with many aspects and dimensions and can not be cribbed, cabined or confined within traditional or doctrinaire limits. From a positive point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belong to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it. That is unequal both according to political logic and constitutional law and therefore violative of Article 14. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 208 In case of Maneka Gandi v Union of India, 1978, Bhagwati J. said : Equality is dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence. So, the doctrine of classification is just a judicial formula to determinine if the legislative or executive action is arbitrary and hence constitutes denial of equality. Article 14 is a guarantee against arbitrariness and if an action of state is arbitrary it cannot be justified even on the basis of doctrine of classification. So if an act of state is arbitrary it is unequal and therefore violative of Article 14. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth or any of them (Article 15) According to Article 15: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.(3) Nothing in this Article shall prevent the State from making any special provision for women and children. (4) Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.(5) Nothing in this Article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. Article 15 provides for a particular application of the general principle let down in Article 14. When the discrimination is based upon any of the ground mentioned in Article 15, the reasonableness of classification will be tested under Human Rights and Media Unit 5 Sikkim Manipal University Page No. 209 Article 14. The guarantee under Article 15 is available only to the citizens of India and not every person whether citizen or not as in Article 14. Clause (1) of Article 15 directs the state not to discriminate against a citizen only on the ground of religion, race, caste, sex, place of birth or any of them. The second clause prohibits sate as well as citizens from making such discrimination on access to shops, public restaurants, hotels and places of public entertainment or on the use of wells, tanks, bathing ghats, roads and places of public resort which are maintained wholly or partly out of State funds or which dedicated to the use of the general public. Third clause empowers the sate to make special provisions for the benefit of women and children. Fourth clause which was added by Constitution (First Amendment) Act, 1951 is an exception to Article 15 and 29(2) and empowers the state to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 15 was once again amended in 2005 by the Constitution (Ninety-third Amendment) Act, 2005, to add clause 5. Under clause 5 the state is enabled for making any special provisions relating to the admission to educational institutions including private educational institutions, whether aided or unaided by the State, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes, other than the minority educational institutions referred to in clause (1) of Article 30. Equality of opportunity in matters of public employment (Article 16) Article 16 of the constitution talks about equality of opportunity in matters of public employment. It says that, (1) there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this Article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (4A) Nothing in this Article shall prevent the State from making any provision for reservation 3[in matters of promotion, Human Rights and Media Unit 5 Sikkim Manipal University Page No. 210 with consequential seniority, to any class or classes of posts in the services under the State 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.(4B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. (5) Nothing in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. Article 16 provides equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It prohibits the state from making any discrimination on the grounds of only of religion, race, caste, sex, descent, place of birth, residence or any of them, in respect of any employment or office under the State. Article 16 (1) and (2) applies only in respect of employment or office under the state. Clauses (3), (4), (4A), (4B), (5) provide exception to the general rule of equality of opportunity. Clause 4 enables the State for making any provision for the reservation of appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the State, in the opinion of the State. Clause (4A) enables the State from making any provision for reservation in matters of promotion, in favour of the Scheduled Castes and the Scheduled Tribes which, are not adequately represented in the services under the State in the opinion of the State. Article 16 was amended in 2000 by the Constitution (Eighty-first Amendment) Act, 2000, and clause 4B was inserted seeks to end 50% limit for Scheduled Castes, the Scheduled Tribe and other backward classes in backlog vacancies which could not be filled up due to the non-availability of eligible candidates of these categories in the previous year or years. Clause (5) saves a law from the operation of clauses (1) and (2) which provides for the incumbent of any religious qualification for appointment and the state is required to appoint a person professing a particular religion or belonging to a particular denomination for being the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 211 Article 16 deals with the employment and appointment under the state and does not deal with the discrimination like Article 15. Article 16 guarantees equality of opportunity in matter of appointment in state services. It does not prevent the state from prescribing the necessary qualifications and selective tests for recruitment of government services. The qualification prescribed may besides mental excellence include physical fitness sense of discipline , moral integrity and loyalty to the state. Abolition of untouchability (Artilce 17) Article 17 provides that, Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law. Article 17 abolishes untouchability and forbids its practice in any form. If untouchability is practiced then it is an offense and punishable in accordance with the law. The Parliament has enacted Untouchability (Offences) Act, 1955 amended by Untouchability (Offences) Amendment Act, 1976 in order to make the law more stringent to remove untouchability from the society. Abolition of titles (Article18) According to Article 18 : (1) No title, not being a military or academic distinction, shall be conferred by the State. (2) No citizen of India shall accept any title from any foreign State. (3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State. (4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State. Article 18 prohibits the state from conferring titles to anybody whether citizen or non-citizen. However, military and academic distinctions are exempted from the prohibition. This Article not only prohibits the sate from conferring the titles but also prohibits the citizens from accepting title form any foreign state. Constitution, under Article 18, also prohibits anyone who is not a citizen of India who is holding any office of profit or trust under the State to accept any title from any foreign State without the consent of the President. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 212 2. Right to Freedom: Articles 19, 20, 21 and 22 The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. Protection of certain rights regarding freedom of speech, etc. (Article 19) Article 19 provides: (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (g) to practice any profession, or to carry on any occupation, trade or business. (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the 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. (3) Nothing in sub-clause (b) 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 4[the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) 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 4[the sovereignty and Protection of certain rights regarding freedom of speech, etc. (5) Nothing in 1[sub-clauses (d) and (e)] 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, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. (6) Nothing in sub-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 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 practicing any profession or carrying on any Human Rights and Media Unit 5 Sikkim Manipal University Page No. 213 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. The rights granted under Article 19 are available only to the citizen of India. Article 19 guarantees following six fundamental freedoms to the citizens of India: (i) Freedom of speech and expression (ii) Freedom of Assembly (iii) Freedom to form Association (iv) Freedom of Movement (v) Freedom to reside and to settle (vi) Freedom of profession, occupation, trade or business. However, these six freedoms are not absolute and reasonable restrictions can be imposed upon these freedoms. The restrictions to restrain these freedoms cannot be arbitrary therefore a restriction to be constitutionally valid must fulfill these two tests: (i) The restriction must be for the purpose mentioned in clauses 2 to 6 of Article 19. (ii) The restriction must be reasonable. Test of reasonable restriction: The restrictions on the rights under Article 19 can only be imposed by law and not executive or departmental instructions. Reasonable restriction under Article 19 (6) means that the restriction imposed on a person in the enjoyment of his right should not be arbitrary or of an excessive nature beyond what is required in the interest of public. In case of Chintamani Rao v State of M. P.,1951, the Supreme Court of India held that a law which arbitrarily or excessively invades the rights if a person cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the right guaranteed under Article 19(1) and the social control in 19(6), it must be held to be wanting in quality. In this the Supreme Court has down the following guidelines for determining the reasonableness of restrictions: (1) It is the courts and not the legislature which has to judge the finally whether a restriction is reasonable or not. (2) The term reasonable restriction in Article 19(6) implies that the restrictions imposed on a person in the enjoyment of his right should not be arbitrary Human Rights and Media Unit 5 Sikkim Manipal University Page No. 214 or of an excessive nature beyond what is supposed to be in the interest of public. The word reasonable means intelligent care and deliberation i.e., the choice which reason dictates. (3) There is no exact standard or general pattern of reasonableness that can be laid down for all cases. Each case is to be judged on its own merits. The standard varies with the nature of the rights infringed, the underlying purpose of the restriction imposed, the extent and the urgency of the evil sought to be remedied, the disproportion of the imposition, and the prevailing conditions at the time. In case of N.B Khare v State of Punjab, 1960, the Supreme Court held that the restriction must be reasonable from the substantial as well as procedural standpoint. (i) Freedom of speech and expression [(Articles 19(1)(a) and 19 (2)] Freedom of speech and expression is indispensable. Freedom of speech and expression means to express one own opinion freely by words of mouth, writing, printing, pictures or by any other means. The freedom of speech and expression includes the expression of one idea through any communicable medium or visible representation. In case of Romesh Thaper v State of Madras, 1950, the Supreme Court observed : Freedom of speech lay the foundation of all democratic organizations, for without free political discussion no public education so essential for the proper functioning of the process of popular government is possible. Freedom of speech and expression also includes freedom of press. The Supreme Court, in the Romesh Thaper case, said: The expression connotes publication and thus the freedom of press is included in this category. Free propagation of ideas is the necessary objective and this may be done through the press. The freedom of propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. The freedom of speech and expression helps the individuals in attaining the self fulfillment and assist in the discovery of truth. It strengthens the capacity of individuals to participate in decision making and also provides a mechanism by which it would be possible to establish a reasonable balance between the stability and social change. The freedom of speech and expression includes right to propagate ones views: the Supreme Court examined the scope of freedom of speech and expression in Life Insurance Corporation of India v Manubhai D. Shah(1992) and observed: The freedom of speech and expression must be broadly construed Human Rights and Media Unit 5 Sikkim Manipal University Page No. 215 to include the freedom to circulate ones views by words of mouth or in writing or through audio visual instrumentalities. It therefore includes the right to propagate ones views through any other communication channel, e.g. the radio and the television. Every citizen of this country therefore has the right to air his views through the printing and o electronic media subject to permissible restrictions imposed under Article 19 (2) of the Constitution. The freedom of speech and expression includes freedom to silence: The supreme court of India has held in National Anthem case that the freedom of speech and expression also includes the freedom to silence. In this case three children belonging to Jehovah were expelled from the school for refusing to sing the national anthem. The circular issued by the director of Public instruction Kerala had made it obligatory for the students to sing national anthem in the school. In this case the children stood up respectfully when the national anthem being sung at their school but they did not join in singing it. They refused to sing the national anthem as according to them it was against their religious belief which does not permit them to join any ritual except their prayer to Jehovah, their god. They challenged the validity of their expulsion before the Kerala High Court which upheld their expulsion as valid on the ground that it was their fundamental duty to sing the national anthem. On appeal the Supreme Court held that there was no law under which their fundamental right under Article 19(1) (a) could be curtailed. The right under Article 19(1)(a) can only be regulated by law and on the grounds mentioned in the Constitution and not by executive instructions. They did not commit any offence under the Prevention of Insults National Honour Act, 1971, because they stood up respectfully when the national anthem was being sung. Accordingly, it was held that the childrens expulsion from the school was a violation of their fundamental right under Article 19(1) (a) which also includes the freedom of silence. The judgment of the will have far reaching consequences. It is likely to be interpreted as a license by all to disregard the national anthem which is the symbol of our national unity in the name of religion. Freedom of speech and expression has nothing to do with a person refusing to sing the national anthem. Commercial advertisement: Commercial advertisement is also a part of freedom of speech and expression. In case of Tata Press Ltd. v Mahanagar Telephone Nigam Ltd. (1995), the Supreme Court held the commercial speech (advertisement) is a part of the freedom of speech and expression granted under Article 19(1)(a) of the Constitution. It can only be restricted on the grounds specified in Clause 2 of Article 19, such as in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, Human Rights and Media Unit 5 Sikkim Manipal University Page No. 216 public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The court made it clear that the commercial advertisements which are deceptive, unfair, misleading, and untruthful could be regulated by the government. Commercial speech cannot be denied the protection of Article 19 (1)(a) of the Constitution merely because the same are issued by businessmen. Freedom of the press: Freedom of the Press is also included under Article 19(1)(a) of the Constitution. In case of Indian Express News Papers v Union of India (1985), the Supreme Court speaking about the freedom of press observed: The expression freedom of the press has not been used in 19, but it is comprehended with in 19(1)(a). The expression means freedom from interference, from authority, which would have the effect of interference with the content and circulations of newspapers. There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Freedom of press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate. In another case Printers (Mysore) Ltd. v Assistant Commercial Tax Officer (1994), the Supreme Court held: No sales tax can be imposed on sale of newspapers in the country. However, this does not mean that press is immune either from taxation or from general law relating to industrial relations or from the state regulation of condition of service of its employees. The prohibition is upon the imposition of any restriction to disseminate information and to the circulation of newspaper. The court further clarifies further: Freedom of press stands at the higher footing than other enterprises. In Sakal Papers Ltd. v Union of India (1962), the Supreme Court of India held that the right of freedom of speech and expression cannot be taken away with the object of placing restrictions on the business activity of a citizen. Freedom of speech can only be retracted on the grounds mentioned in Clause (2) of Article 19. It cannot like the freedom to carryon business, be curtailed in the interests of the general public. In Bennet Colman and Co. v Union of India (1973), the Supreme Court believed: Freedom of the press is both quantitative and qualitative. Freedom lies both in circulation and in content. The news print policy which permits news papers to increase circulation by reducing the number of pages, page area and periodicity, prohibits them to increase the number of pages page area and Human Rights and Media Unit 5 Sikkim Manipal University Page No. 217 periodicity by reducing circulation. These restrictions restrict the newspapers in adjusting their page number and circulation. Odyssey Communications Pvt. Ltd. v Lok Vidayan Sanghatana (1988) , it was held that the rights of a citizen to exhibit films on the Doordarshan, on the terms and conditions imposed by the Doordarshan is part of the fundamental right of freedom of speech and expression guaranteed under Article 19(1) (a), which can be curtailed only on the grounds mentioned in Article 19(2). Grounds of restrictions: Clause (2) Article 19 contains the grounds on which restrictions on the freedom of speech and expression can be imposed: The security of the state Friendly relations with foreign states Public order Decency or morality Contempt of court, Defamation Incitement to an offence The sovereignty and integrity of India The security of the state: Under Article 19(2) reasonable restriction can be imposed on freedom of speech and expression on the ground of the security of the State. In case of Romesh Thaper v State of Madras (1950), Supreme Court held that the term security of state refers only to serious insurrection and not ordinary breaches of public order or public safety. Friendly relations with foreign states: This ground was added by Constitution (1st Amendment) Act, 1951 to prohibit the unrestrained malicious propaganda against a foreign friendly state which may jeopardize the good relations between India and that friendly state. Public order: This ground was added by Constitution (1st Amendment) Act, 1951 to meet the situation arose from the supreme courts decision in Romesh Thaper case in which the supreme court held that public order is an expression of wide connotation and signifies that the state of tranquility which prevails among the member of political society as a result of internal regulations enforced by the government. Decency or morality: Decency or morality is another ground on which a reasonable restriction can be imposed upon the exercise of the right of freedom of speech and expression. Indecency under the Constitution of Human Rights and Media Unit 5 Sikkim Manipal University Page No. 218 India is identical with the word obscenity under English law. The IPC provides for restriction on the freedom of speech and expression in the interest of decency and morality. These sections prohibit the sale or distribution or exhibition of the words etc. in public places. But IPC does not lay down any test for determination of obscenity. In case of Ranjit D. Udeshi v State of Maharashtra (1965), the Supreme Court accepted the test laid down in English case of R. v Hicklin to judge the obscenity of a matter. Contempt of court: Another ground on which the restriction on freedom of speech and expression can be imposed is on the ground of contempt of court. Section 2 of the Contempt of Court Act, 1971 defines contempt of court to mean civil contempt or criminal contempt. Section 2 (b) of the Act says: Civil contempt means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. Section 2(c) says: Criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which (i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or (ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. However the following acts do not amount to contempt of court: (i) Innocent publication and distribution of nay matter; (ii) Publication of fair and accurate report of judicial proceedings; (iii) Fair criticism of judicial act; (iv) Complain against presiding officer made in good faith. (v) Publication of fair information relating to proceeding in chambers or in camera. Defamation: Defamation is a ground to restrict the freedom of speech and expression. Any statement which injures the reputation of someone amounts to deflation of that person. Section 499 contains criminal law Human Rights and Media Unit 5 Sikkim Manipal University Page No. 219 regarding defamation. An action under law of torts can also be brought for defamation. Incitement to an offence: This ground by Constitution (1st Amendment) Act, 1951 to impose a reasonable restriction on the freedom of speech and expression. Integrity and sovereignty of India: This ground imposing restriction on the freedom of speech and expression was added by the Constitution (Sixteenth Amendment) Act, 1963. (ii) Freedom of Assembly Article 19(1) (b) guarantees to all citizens of India the right to assemble peaceably and without arms. The right of assembly includes the right to hold meetings and to take out processions. This right is however subject to some restrictions which are as follows: The assembly must be peaceable. It must be unarmed. Reasonable restrictions can be imposed under clause (3) of Article 19. The right of assembly is implied in the very idea of the democratic government. The right of assembly thus includes right to hold meetings, and to take processions. This right, like other rights is not absolute but restrictive. The assembly must be non-violent and must not cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected under Article 19(1) (b) and reasonable restrictions may be imposed under clause (3) of Article 19 in the interests of sovereignty and integrity of India or public order. If an assembly becomes unlawful it can be dispersed. Chapter VIII of the Indian Penal Code lays down the conditions when an assembly becomes unlawful. Under section 141 of the Indian Penal Code, an assembly of five or more persons becomes an unlawful assembly if the common object of the persons composing assembly is: (a) To resist the execution of any law or legal process; (b) To commit any mischief or criminal trespass; (c) Obtaining possession of any property by force; (d) To compel a person to do what he is not legally bound to do or omit which he is legally entitled to do; (e) To overawe the government by means of criminal force or show of criminal force or any public servant in the exercise of his lawful powers. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 220 An assembly which was not unlawful when assembled may subsequently become unlawful if it becomes violent or is likely to result in disturbance. (iii) Freedom to form Association [Article 19(1)(c) and 19(4)] Article 19(1) of the Constitution of India guarantees to all the citizens of India the right to form associations and unions. Under clause (4) of Article 19, however, the state may by law impose reasonable restriction on these rights in the interest of public order or morality or the sovereignty and integrity of India. The right guaranteed is not merely the right to form association but also to continue with the association as such. The freedom to form association implies also the freedom to form or not ot form, to join or not join, an association or union. Restrictions on the freedom of association: the right of association, like other individual freedom is not unrestricted. Clause (4) of Article 19 empowers the state to impose reasonable restrictions on the right of freedom of association and union in the interest of public order or morality or sovereignty or integrity of India. It saves existing laws in so far as they are not inconsistent with Fundamental Rights of association. (iv) Freedom of Movement [Article 19(1)(d) and 19(5)] Article 19(1) (d) guarantees all citizens of India to move freely throughout the territory of India. This right is subject to certain restrictions mentioned under Article 19(5) which provide restriction on the ground of in the interest of public and in the interest of any schedule tribe. (v) Freedom of Residence [Article 19(1)(e) and 19(5)] According to Article 19(1) (e) every citizen of India has the right to reside and settle in any part of the territory of India. This right is subject to certain restrictions mentioned under Article 19(5) which provide restriction on the ground of in the interest of public and in the interest of any schedule tribe. Article 19(1) (e).The object of the clause (6) is to remove internal barriers within India or any of its parts. (vi) Freedom of Profession, Occupation, Trade or Business (Article 19 (1)(g) and 19(6) Article 19(1) (g) provides freedom to practice any profession, or to carry on any occupation, trade or business. Article 19(6) imposes reasonable restrictions on this freedom on the grounds of (i) the interests of the general public, (ii) the Human Rights and Media Unit 5 Sikkim Manipal University Page No. 221 professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (iii) 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. Protection in respect of conviction for offenses (Article 20) Article 20 of the Indian Constitution provides the following safeguards to the persons accused of crimes: (a) Ex-post facto law (Clause 1, Article 20) (b) Double jeopardy (Clause 2, Article 20) (c) Prohibition against Self-incrimination (Clause 3, Article 20) (a) Protection against Ex-post facto law: Article 20 (1) says: (1) 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. Article 20(1) imposes a limitation on the law making power of the legislature. Ordinarily a legislature can make prospective as well as retrospective laws; clause (1) of Article 20 prohibits the legislature to make retrospective criminal laws. However it does not prohibit the imposition of civil liability retrospective i.e. with effect from past date. So a tax can be imposed retrospectively. An ex-post facto law is a law which imposes penalties retrospectively, i.e on acts already done and increases the penalty for such acts. The first part of clause (1) provides 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. This means that if an act is not an offence at the date of its commission it can not be an offense at the date subsequent to its commission. The second part of Clause (1) protects a person form a a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. In Kedar Nath v State of West Bengal (1953), the accused committed an offense in 1947 which under the Act then in force was punishable imprisonment or fine or both. The Act was amended in 1949 which enhances the punishment for the same offense Human Rights and Media Unit 5 Sikkim Manipal University Page No. 222 by an additional fine equivalent to the amount of money procured by the accused through the offence. The Supreme Court ruled: The enhanced punishment could not be applicable to the act committed by the accused in 1947. Giving this ruling, the apex court set aside the additional fine imposed by the amended Act. However, the accused can take advantage of the beneficial provisions of the ex-post facto laws. In Ratan Lal v State of Punjab, AIR1965SC444, a boy of sixteen year old was convicted for committing an offense of house trespass and outraging the modesty of a girl aged seven years. The magistrate sentenced him for six months rigorous imprisonment and also imposed fine. After the judgment of the magistrate, the Probation of Offenders Act, 1958 came into force. It provided that a person below 21 years of age should not ordinarily be sentenced to imprisonment. The Supreme Court held that the rule of beneficial interpretation required that ex-post facto law could be applied to reduce the punishment. So an ex- post facto law which is beneficial to the accused is not prohibited by Clause (1) of Article 20. (b) Double jeopardy (Clause 2, Article 20): The constitution under Article 20(2) says that, (2) No person shall be prosecuted and punished for the same offence more than once. This clause embodies the common law rule of nemo debet vis vexari which mean that no man should be put twice in peril for the same offence if he is prosecuted again for the same offence for which he has already been prosecuted , he can take complete defense of his for mere acquittal or conviction. In Maqbool Hussain v State of Bombay (1953), the appellant brought some gold into India and he did not declare that he had brought gold with him to the customs authorities on the airport. The customs authorities confiscated the gold under the Sea Customs Act. He was later charged for having committed an offense under the Foreign Exchange Regulations Act. The appellant contended that, the second prosecution was in violation of Article 20(2) as it was for the same offense. The court held that Sea Custom Authorities were not a court or judicial tribunal and the adjudging of confiscation under the Sea Customs Act did not constitute a judgment of judicial character necessary to take the plea of the double jeopardy, hence the prosecution under the Foreign Exchange Regulation Act is not barred. Article 20(2) will have no application where judgment is not for the same offense. Thus if the offenses are distinct the rule of double jeopardy will not apply. Clause (2) of Article 20 does not apply where the person is Human Rights and Media Unit 5 Sikkim Manipal University Page No. 223 prosecuted and punished for the second time and subsequent proceeding is mere continuation of the previous proceeding, example in the case of an appeal against acquittal. (c) Protection against self-incrimination [Article 20(3)]: Article 20(3) provides that No person accused of any offence shall be compelled to be a witness against himself. The fundamental rule of criminal jurisprudence against self-incrimination has been raised to a rule of constitutional law in Article 20 (3). This guarantee extends to any person accused of an offense and prohibits all kind of compulsions to make him a witness against himself. In case of M.P. Sharma v Satish Chandra (1954), the Supreme Court observed that this right embodies the following essentials: (i) It is a right pertaining to a person who is accused of an offense. (ii) It is a protection against compulsion to be a witness. (iii) It is a protection against such compulsion relating to is giving evidence against him. Protection of life and personal liberty (Article 21) Article 21 of the Constitution says: No person shall be deprived of his life or personal liberty except according to procedure established by law. prior to Maneka Gandhis decision, Article 21 guaranteed the right to life and personal liberty to citizens only against the arbitrary actions of the executive, and not from legislative actions. The sate could interfere with the liberty of citizens if it could support its actions by a valid law. But after the Maneka Gandhis decision, Article 21 now protects the right of life and personal liberty of citizens not only from the executive actions but also from the legislative actions. A person can be deprived of his life and personal liberty if two conditions are complied with, first, there must be a law and second there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable. The right guaranteed in Article 21 is available to citizens as well as non-citizens. In case of A.K. Gopalan v Union of India (1950), the Supreme Court held that the personal liberty in Article 21 means nothing more than the liberty of the physical body, that is, freedom form arrest and detention without the authority of law. In the Maneka Gandhis case, the Supreme Court overruled the Gopalanss case and widened the scope of the words personal liberty considerably. Bhagwati J. in this case observed: The expression personal liberty in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct Fundamental Rights and given additional protection under 19. He further said Human Rights and Media Unit 5 Sikkim Manipal University Page No. 224 that the attempt of the court should be to expand the reach and ambit of Fundamental Rights rather than to attenuate there meaning and content by a process of judicial construction. The court laid down great stress on the procedural safeguards. The procedure must satisfy the requirements of natural justice i.e., it must be just fair and reasonable. In Kharak Singh v State of U.P. (1963), it was held that the expression life was not limited to bodily restraint or confinement to prison only but something more than animal existence. Right to life also include right to travel abroad. In Satwant Singh v Assistant Passport Officer, New Delhi (1967), the Supreme Court held that the right to travel abroad is a part of a persons personal liberty within the meaning of Article 21. Procedure established by law: In Maneka Gandhis case the Supreme Court held that mere prescription of some kind of procedure is not enough to comply with the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary; otherwise it should not be on procedure at all and all the requirements of Article 21 would not be satisfied. Right to live with human dignity: Right to life also include right to live with human dignity. In Maneka Gandhis case the Supreme Court held that the right to live is not merely confined to physical existence but it includes within its ambit the right to live with human dignity. The Supreme Court has elaborated the same view in various other cases. In Francis Coralie v Union Territory of Delhi (1978), the Supreme Court ruled: The right to live is not restricted to mere animal existence. It means something more than just physical survival. The court said that, the right to live is not confined to the protection of any faculty or limb through which life is enjoyed or soul communicates with the outside world but it also includes the right to live with human dignity, and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing ourselves in diverse form, freely moving about and mixing and commingling with fellow human beings. In another case of Peoples Union for Democratic Rights v Union of India, (1982), the Supreme Court ruled: The non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live human dignity and violative of Article 21 of the Constitution. In Chandra Raja Kumari v Police Commissioner Hyderabad (1998), the Supreme Court held that the right to live includes right to live with human dignity or decency. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 225 In State of Maharashtra v Chnadrabhan (1983), the Supreme Court set aside a provision of Bombay Civil Services Rule, 1959, which provided for payment of only a nominal subsistence allowance of Re 1 per month to a suspended government servant upon his conviction during the pendency of appeal as unconstitutional. The apex court considered it violative of Article 21 of the Constitution. Right to livelihood: Right to life includes right to livelihood. In case of Olga Tellis v Bombay Municipal Corporation (1986), popularly known as Pavement Dwellers Case, the Supreme Court held that the word life under Article 21 includes the right to livelihood also. The court said: It does not mean merely that the life cannot be extinguished or taken away as for example by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect of right to life. And equally important facet of that right is the right to livelihood because no person can live without the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest ways of depriving a person of his right to life would be to deprive him of his means of livelihood. In view of the fact that Article 39(a) and 41 require the state to secure to the citizen an adequate means of livelihood and the right to work, therefore the right to livelihood cannot be excluded from right to life. In the case of D.K. Yadav v JMA Industries the Supreme Court held that the right to life enshrined under Article 21 includes the right to livelihood therefore termination of the service of a worker without giving him reasonable opportunity of being heard is unjust, arbitrary and illegal. Right to privacy: The Supreme Court of India has held in various cases that right to privacy is a part of right to life. In case of R. Rajagopal v State of Tamil Nadu popularly known as Auto Shanker Case. The Supreme Court held that right to privacy or right to be let alone is guaranteed by Article 21 of the Constitution. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood etc. No one can publish anything concerning the above matters without his consent truthful or otherwise. If he does so he would be violating the rights of the person concerned and would be liable in action for damages. In another case Mr. X v Hospital Z10 the Supreme Court held that although the right to privacy is a fundamental right under Article 21 of the Constitution but is not an absolute and restrictions can be imposed on it for the prevention of crime, disorder or protection of health or morals or protection of rights and freedoms of others. The Supreme Court further held that by disclosing that the appellant was suffering from AIDS the doctors had not violated the right Human Rights and Media Unit 5 Sikkim Manipal University Page No. 226 to privacy of the appellant guaranteed under Article 21. The Court held that although the right to privacy is a fundamental right under Article 21, but it is not an absolute right and retractions can be imposed on it. The right to marry is an essential element of right to privacy but is not absolute. Marriage is the sacred union, legally permissible of two healthy bodies of opposite sexes. Every system of matrimonial law provides that if person is suffering from venereal disease in a communicable form, it will be open to the other partner in the marriage to seek divorce. If a person is suffering form that disease even prior to the marriage, he has no right to marry so long as he is not fully cured of the disease. Right to Die (not a fundamental right under Article 21): The question whether the right to die is included in Article 21 of the constitution came for consideration for the first time before the Bombay High Court in State of Maharashtra v Maruty Sripati Dubal the Bombay high court held that the right to life guaranteed under Article 21 includes the right to die, and consequently the court struck down section 309 of IPC which provides punishment for attempt to commit suicide by a person as unconstitutional. On the other hand, the Andhra Pradesh High Court in Chenna Jagadeeswar v State of A.P., held that the right to die is not a fundamental right within the meaning of Article 21 and hence section 309 is not unconstitutional. In P. Ratinam v Union of India (1994), the Supreme Court held that section 309 of IPC is violative of Article 21 and hence it is void. A person can not be forced to enjoy right to life to his detriment, disadvantage or disliking. The court said that, section 309 of the IPC was a cruel and irrational provision. In Gian Kaur v State of Punjab (1996), a five-judge constitutional bench of the supreme court has overruled the P. Ratinams case and held that the right to life under Article 21 of the constitution does not include right to die or right to be killed. The right to die is inherently inconsistent with the right to life as is death with life. The court said that, any aspect of life which makes it dignified may be read into Article 21 of the constitution but not that which extinguishes it and is, therefore inconsistent with the continued existence of life resulting in effacing the right itself. The right to life is natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and incompatible and inconsistent with the concept of right to life. Protection of Ecology and Environmental Pollution In rural litigation and Entitlement Kendra v State of UP (1985), the court ordered the closure of certain lime stone quarries on the ground that there ere serious deficiencies regarding safety and hazardous in them. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 227 In Sriram Food and Fertilizers Case the Supreme Court directed the company manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workman and people living in its neighborhood, to take all necessary safety measures before reopening the plant. In M.C. Mehta v Union of India (1987), the Supreme Court ordered the closure of tanneries at Jajman near Kanpur polluting the River Ganga. In case of Vellore Citizens v Welfare Forum Union of India (1996), the Supreme Court held that industries though are of vital importance to the countries development , but they cannot be allowed to destroy the ecology, degrade the environment and pose a health hazard and cannot be permitted to continue their operation unless they setup pollution control devices. Kuldip Singh J. said that, principle of sustainable development has to be adopted as a balancing concept between ecology and development. Precautionary principle and polluter pays principle are essential feature of sustainable development and has to be adopted. Right to Education Right to education has become a Fundamental Right under Article 21A of the Constitution. This Article has been added by the Constitution (86th Amendment) Act, 2001. In case of Mohini Jain v State of Karnataka (1992), popularly known as Captivation Fee case, the Supreme Sourt has held that right to education is fundamental right under Article 21 of the constitution which cannot be denied to a citizen by charging higher fee known as the captivation fee. The right education flows directly from right to life. Protection against arrest and detention in certain cases (Article 22) Under Article 22: (1) No person who is arrested shall be detained in custody without being informed, as soon as may not be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 228 (3) Nothing in clauses (1) and (2) shall apply- (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless-(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7) (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers being against the public interest to disclose. (7) Parliament may by law prescribe: (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under [sub-clause (a) of clause(4)]. Article 22 deals with two different matters (1) persons arrested under ordinary law of cries and (2) persons detained under the law of preventive detentions. The first two clauses of the Article deal with detention under the ordinary law of crimes and lay down the procedure which has to be followed when a man is arrested and the remaining clauses (3),(4),(5)(6) deal with persons detained under a preventive detention law and lay down the procedure which is to be followed when a person is detained under the law. Rights of arrested persons under ordinary laws: Clauses (1) and (2) of Article 22 guarantees four rights on the persons who arrested for any offense under an ordinary law: Human Rights and Media Unit 5 Sikkim Manipal University Page No. 229 1. The right to be informed as soon as may be of the ground of arrest; 2. The right to consult and to be represented by the lawyer of his own choice; 3. The right to be produced before a Magistrate within 24 hours; 4. The freedom from detention beyond the said period except by the order of the Magistrate. These rights are available to both citizens as well as non-citizens and not to persons arrested and detained under any law providing for preventive detention. Preventive detention laws: Clauses (4) to (7) of Article 22 provide the procedure to be followed if a person is arrested under the law of preventive detention. Constitutional safeguards against preventive detention: Though the Constitution has recognized the need of laws as to preventive detention, it has also provided safeguards to mitigate their harshness by placing fetters on legislative powers conferred on the Legislature. Clauses (4) to (7) guarantee the following safeguards to a person arrested under preventive detention laws: (a) Review by Advisory Board (b) Communication of grounds of detention to detenue (c) Detenues right of representation (a) Review by Advisory Board: According to clause (4) of Article 22 as amended by the 44th Amendment Act, 1978 provides that a person cannot be detained for more than two months without obtaining the opinion of advisory board. (b) Communication of grounds of detention to detenue: Article 22(5) gives two rights to the detenue: (1) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall communicate to such person the grounds of arrest (2) give him the earliest opportunity of making a representation against the order. (c) Detenues right of representation: the other right given to the detenue is that he should be given the earliest opportunity of making a representation against detention order. 3. Right against Exploitation: Articles 23 and 24 The right against exploitation provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labour), and abolition of Human Rights and Media Unit 5 Sikkim Manipal University Page No. 230 employment of children below the age of 14 years in dangerous jobs like factories and mines. Prohibition of traffic in human beings and forced labour (Article23) Article 23 says: Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.(2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them. Traffic in human beings means selling and buying men and women like goods and includes immoral traffic in women and children for immoral and other purposes. Article 23 protects the individual not only against the state but also private citizens. It imposes an obligation on the states to take steps to abolish evils of traffic in human beings and begar and other similar forms of forced labour wherever they are found. Article 23 prohibits the system of forced labour because it is a form of force labour within the meaning of Article 23. In case of Peoples Union for Democratic Rights v union of India (1982), the Supreme Court held that the scope of Article 23 is wide and unlimited and strikes at traffic in human beings and beggar and other forms of forced labour. Article 23(2) contains an exception to the rule in Clause (1) and provides that the state is empowered to impose compulsory services for public purposes. But in imposing such compulsory services the state cannot make any discrimination on the ground only of religion, race, caste or class or any of them. Prohibition of employment of children in factories, etc(Article 24) Article 24 provides: No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Article 24 prohibits the employment of children below the age of 14 years in factories and hazardous employment. This provision is embodied in the constitution to safeguard the life of children. In case of M.C. Mehta v Union of India (1997), the Supreme Court held that children below the age of 14 years cannot be employed in any hazardous industry, mines or other works. 4. Right to Freedom of Religion: Articles 25, 26, 27 and 28 Right to freedom of religion provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. Though India is a secular state, it has provided right of religious freedom. Provisions have been made in the Constitution of India under Article 2528 for protecting and safeguarding the right to freedom of religion. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 231 Freedom of conscience and free profession, practice and propagation of religion (Article 25) Under Article 25: (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, practice and propagate religion. (2) Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious 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. Explanation I.the wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. So Article 25 guarantees ever person freedom of conscience and free profession, practice and propagation of religion. But the right guaranteed under Article 25 is not absolute and subject to: (1) public order, morality and health and (2) regulation of economic, financial, political, and secular activities associated with religious practices, (3) social welfare and social reforms. Freedom to manage religious affairs (Article 26) Article 26 provides: Subject to public order, morality and health, every religious denomination or any section thereof shall have the rights to: (a) establish and maintain institutions for religious and charitable purposes; (b) manage its own affairs in matters of religion; (c) own and acquire movable and immovable property; and (d) administer such property in accordance with law. The right guaranteed under Article 25 is an individual right while the right guaranteed under Article 26 is the right of an organized body like religious denominations or any other section thereof. Freedom from taxes for promotion of any particular religion (Article 27) Article 27 provides: No 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. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 232 This Article emphasizes on the secular character of the state. The public money collected by way of taxes can be spent by the state for the promotion of any particular religion. Prohibition of religious instructions in state-aided institutions (Article 28) According to Article 28 : (1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds. (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. (3) No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Article 28 mentions four types of educational institutions: 1. Institutions wholly maintained by the state; 2. Institutions recognized by the states; 3. Institutions that are receiving aid out of the state fund; 4. Institutions that are administered by the state but are established under any trust or endowment. 5. Cultural and Educational Rights: Articles 29 and 30 As India is a country of many languages, religions, and cultures, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Under Article 29 : (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 29(1) guarantees the citizens Human Rights and Media Unit 5 Sikkim Manipal University Page No. 233 of India residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. A minority community can preserve its language, script or culture through educational institutions. Article 30(1) says: All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Article 30 (2)says: The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. 6. Right to Constitutional Remedies: Articles 3235 Articles 32 to 35 deal with the right to constitutional remedies. Article 32 gives the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III. The Supreme Court empowered to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Any person can apply under Article 32 of the constitution against violation of any fundamental right of any person. It is not necessary that the person whose right has been violated can only apply for the enforcement of his rights; rather anyone can apply on his behalf through public interest litigation. Under Article 33 powers has been given to Parliament to modify the rights conferred by this Part in their application to Forces, etc. Article 34 provides for restriction on rights conferred by this Part while martial law is in force in any area. Article 35 gives power to Parliament to make legislation to give effect to the provisions of this Part. 5.3.2 Articles Covering the Directive Principles of State Policy The Directive Principles of State Policy can be classified as follows: 1 State to secure a social order for the promotion of welfare of the people (Article 38) Article 38 provides: (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, Human Rights and Media Unit 5 Sikkim Manipal University Page No. 234 facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Article 38 aims at promoting the welfare of people by securing and protecting social and economic justice. In case of Air India Statutory Corporation v United Labour Union 1997), the Supreme Court of India explained the concept of social justice in the following words: The concept of social justice consists of diverse principles essential for the orderly growth and development of personality of every citizen. Social justice is then an integral part of justice in the generic sense. Justice is the genus, of which social justice is the species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribal and deprived section of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a single simple idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury, to ward off distress and to make their life livable for greater good of the society at large. The aim of social justice is to attain substantial degree of social, economic and political equality which is the legitimate expectation and constitutional goal. 2. Certain principles of policy to be followed by the state (Article 39) Article 39 states that the State shall direct its policy towards securing the following goals: (a) That the citizens, men and women equally, have the right to an adequate means of livelihood; (b) That the ownership and control of the material resources of the community are so distributed as best to sub serve the common good; (c) That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (d) That there is equal pay for equal work for both men and women; (e) That the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Clause (f) of the Article was modified by the Constitution (42nd amendment) Act, 1976 with a view to emphasize the constructive role of the Human Rights and Media Unit 5 Sikkim Manipal University Page No. 235 state with regard to children. In case of M. C. Mehta v State of Tamil Nadu, (1991)1SCC283, the supreme court of India held that in view of Article 39, the employment of children within the match factories directly connected with the manufacturing process of matches and fireworks cannot be allowed as it is hazardous. In another landmark judgment of M. C. Mehta v State of Tamil Nadu, AIR1997SC699 which is also known as (Child Labour Abolition Case), the Supreme Court held that children below the age of 14 years cannot be employed in any hazardous industry or mines or other work. Equal justice and free legal aid (Article 39A) Article 39-A provides: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. It talks about free legal aid and equal justice. This Article directs the state to ensure the operation of legal system to promote justice on the basis of equal opportunity and to provide free legal aid. In H. M. Hoskot v State of Maharashtra (1978), and Hussainara Khatoon v Home Secretary, State of Bihar (1979), the Supreme Court of India has held that the state is under a duty to provide a lawyer to a poor person and to pay the fees of the lawyer fixed by the court. Organization of village panchayats (Article 40) According to Article 40: The State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Right to work, to education and to public assistance in certain cases (Article 41) According to Article 41, The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, right to education and right to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Provision for just and humane conditions of work and maternity relief (Article 42) Article 42 provides that the State shall make provision for securing just and humane conditions of work and for maternity relief. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 236 Living wage, etc., for workers (Article 43) Article 43 provides that the State shall endeavor to secure, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities to all workers, agricultural, industrial or otherwise by suitable legislation or economic organization or in any other way, and shall also make attempt to promote cottage industries on an individual or co-operative basis in rural areas. Participation of workers in management of industries (Article 43A): Article 43 A provides that The State shall take steps, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry by suitable legislation or in any other way. Uniform Civil Code of Citizens (Article 44) Article 44 provides that the State shall endeavor to secure a uniform civil code for the citizens throughout the territory of India. In a historic judgment in Sarla Mudgal v Union of India, (1995) , the Supreme Court of India directed the then prime minister Narsimha Rao to take fresh look at Article 44 of the Constitution of India which enjoins the state to secure a uniform civil code which according to the court is imperative for both protection of the oppressed and promotion of national unity and integrity. Provision for free and compulsory education for children (Article 45) Article 45 directs the State to endeavour to provide, for free and compulsory education for all children until they complete the age of fourteen years. Under the Constitution (Eighty-sixth Amendment) Act, 2002, the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections (Article 46) Article 46 provides: The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and protect them from social injustice and all forms of exploitation. Duty of the State to raise the level of nutrition and the standard of living and to improve public health (Article 47) According to Article 47: The State shall consider the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, shall endeavour to bring Human Rights and Media Unit 5 Sikkim Manipal University Page No. 237 about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Organization of agriculture and animal husbandry (Article 48) According to Article 48: The state shall organize agriculture and animal husbandry on modern and scientific lines and take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle. Protection and improvement of environment and safeguarding of forests and wildlife (Article 48A): Article 48-A says that the State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country. In case of M.C. Mehta (II) v Union of India (1988), the supreme court relying on Article 48A gave directions to the Central and State Governments and various local bodies and Boards under the various statutes to take appropriate step for the prevention and control of the pollution of water. Protection of monuments and places and objects of national importance (Article 49) Article 49 provides that it shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be. Separation of judiciary from executive (Article 50) Article 50 provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. Promotion of international peace and security (Article 51) Article 51 provides that the state shall endeavour to take the following steps for promoting peace and security in the country: (a) Promote international peace and security; (b) Maintain just and honorable relations between nations; (c) Foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and (d) Encourage settlement of international disputes by arbitration. The Directive Principles of State Policy included in Part IV of the Constitution have a special purpose of bringing about social and economic equality. These principles give directions to the state for making laws and policies for the collective good of the people. These Principles are non-justiciable and are not enforceable Human Rights and Media Unit 5 Sikkim Manipal University Page No. 238 by the Courts of law. But they are nevertheless fundamental to the governance of country. 5.3.3 Article Covering the Fundamental Duties Article 51- A covers the Fundamental Duties of Indian citizens. According to this Article, it shall be the duty of every citizen of India: (a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) To cherish and follow the noble ideals which inspired our national struggle for freedom; (c) To uphold and protect the sovereignty, unity and integrity of India; (d) To defend the country and render national service when called upon to do so; (e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) To value and preserve the rich heritage of our composite culture; (g) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) To develop the scientific temper, humanism and the spirit of inquiry and reform; (i) To safeguard public property and to abjure violence; (j) To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement; (k) Who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years. Need for Fundamental Duties As the rights and duties are correlative so the fundamental duties are intended to serve as a reminder to every citizen that while the Constitution specifically confers on them certain fundamental rights, it also requires them to observe some basic norms. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 239 Activity 1 Find out how the Directive Principles of State Policy enshrined in the Indian Constitution are similar to Directive Principles of Social Policy enshrined in the Irish Constitution. Self-Assessment Questions 3. Fill in the blanks with appropriate words. (a) ______ says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. (b) Under, reasonable restrictions can be imposed on freedom of speech and expression on the ground of the security of the State. 4. State whether the following statements are true or false. (a) Article 32 gives the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution. (b) Article 44 provides that the State shall endeavour to secure a uniform civil code for the citizens throughout the territory of India. 5.4 Indian Constitution and UN Declaration on Human Rights Respect for human rights as a part of its social philosophy has existed in the Indian ethos for a long time. India took active part in drafting of the Universal Declaration on Human Rights (UDHR). The Indian delegation to the United Nations, led by Dr (Mrs). Hansa Mehta, a Gandhian political campaigner and social worker, made important contributions in drafting of the UDHR, especially highlighting the need for reflecting gender equality. India is a signatory to the six core human rights covenants, and also the two Optional Protocols to the Convention of the Rights of the Child. Since inception, the Indian Constitution incorporated most of the rights enumerated in the UDHR in two parts, the Fundamental Rights ( already discussed in detail under sub-section 5.3.1) and Human Rights and Media Unit 5 Sikkim Manipal University Page No. 240 the Directive Principles of State Policy (already discussed in detail under sub- section 5.3.2), that covered almost the entire field of Universal Declaration of Human Rights. The first set of rights are enunciated in Articles 2 to 21 of the UDHR and incorporated under the Fundamental Rights of the Indian Constitution. These include the Right to Equality, Right to Freedom, Right Against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, Saving of Certain Laws and Right to Constitutional Remedies.The second set of rights enunciated in Articles 22 to 28 of the UDHR is incorporated under Directive Principles of State Policy of the Indian Constitution. These include 'right to social security, right to work, to free choice of employment, to just and favourable conditions of work and protection against unemployment, right to equal pay for equal work, right to existence worthy of human dignity, right to rest and leisure, right to freely participate in the cultural life of the community, right to free and compulsory education, promotion of welfare of people, equal justice and free legal aid and the principles of policy to be followed by the State.' 5.4.1 International Human Rights Instruments and their Application in India Towards human rights, India advocates and adopts a holistic and integrated approach. This approach equally stresses upon all kinds of human rights, as these are linked with each other due to their inter-dependence, inter-relatedness, indivisibility and universality. The country believes that democracy, development, human rights and international cooperation for development are related with each other. International Human Rights Commission and India As the member of the International Human Rights Commission (IHRC), India has played an active role since it was established in 1947. In 2006, the country was elected as a member of the newly constituted Human Rights Council (HRC), which substituted the CHR, by securing the maximum number of votes among those who contested for the seats in the HRC. In 2007, it was re-elected as a member by getting the maximum votes by polling 185 votes out of 190 votes cast. India assumes the HRC to be the most important organization. The country is committed to render the HRC a strong, successful and competent body that is capable of encouraging and guarding human rights and fundamental freedom for everyone. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 241 The National Commission for Human Rights (NHRC) was set up in India in 1993. It is an autonomous body for the security of human rights in the country.The Commission has now become an essential part of the life of the nation and, more and more, of outcome to the quality of its authority. Consciousness about the rights guaranteed by the Indian Constitution, and the rights included in the global treaties to which India is a State party, has raised radically in the country. In August 2005, the Indian Parliament took a step in the direction of ensuring justifiability of economic and social rights by endorsing a Rural Employment Guarantee Act. This Act provides the 100 days of assured employment in a year to every rural family. The Parliament once again proved that in is committed to provide access to information to the citizens by enacting the Right to Information Act in 2005. Right from the time of the countrys independence, the rights of susceptible groups have been given special attention in India. The Constitution contains wide-ranging provisions for the encouragement and security of the rights of all minorities, including some particular groups of people found only in the Indian society. These are called Scheduled Castes and Scheduled Tribes. These provisions have been further consolidated by a fresh amendment of the Constitution that offers the Scheduled Tribes a local self-government and a high extent of autonomy in managing their day-to-day affairs, management of natural resources and other progress activities in the regions where they live. Independent institutions for example National Commission for the Scheduled Castes and Scheduled Tribes and National Commission for Minorities are successfully promoting and guarding the rights of these susceptible groups. In addition, National Minorities Development and Financial Corporation and National Backward Classes Finance and Development Corporation (NBCFDC) have been established to encourage economic and development measures of minorities and Other Backward Classes in India. The objective of the NHRC provides a clear image through which the situation of the international human rights instruments can be understood in a better way. As per the Statement of Objects and Reasons of the Human Rights Protection Bill, the NHRC would appraise the existing laws, processes and the method of governance, and stress on the fact that the country is a signatory to the International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Human Rights and Media Unit 5 Sikkim Manipal University Page No. 242 details of Indias role in implementing ICESCR have been discussed in the following section of this unit. Let us discuss Indias role with regard to ICCPR. India and ICCPR The ICCPR is a multilateral treaty adopted by the UN in 1966. Effective from 1976, it commits its member states to respect the civil and political rights of individuals. The various civil and political rights covered by it are the right to life, rights to due process and a fair trial, electoral rights, freedom of speech, freedom of religion and freedom of assembly. India ratified the ICCPR in 1979. While ratifying the Covenant, India had reservations regarding Article 9 (pertaining to preventive detention). India was of the view that the provisions of Article 9 of ICCPR should be in consonance with the provisions of the clauses (3) to (7) of Article 22 of the Indian Constitution. Article 9 (5) of ICCPR provides for enforceable right to compensation for victims of unlawful detention. In India, the right to compensation has been restricted by lack of sufficient constitutional. Compensations for illegal arrest and detention and custodial deaths have been left to the discrition of individual judges or benches. The entire set of rights mentioned in Article 12, 19(3), 21 and 22 of the ICCPR is not applicable in India. However, Article 17 of the ICCPR, which pertains to the right to privacy, is applicable in the country, especially in post and telephone communications. UN Convention on the Rights of Persons with Disabilities and India India was the seventh country to have ratified the UN Convention on the Rights of Persons with Disabilities. It had actively participated in the meetings of the Ad Hoc Committee of the UN General Assembly on the Final Decision of a Convention on the Rights of the Persons with Disabilities. When the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act was enacted in India in 1995, the event was considered as an important step towards offering equal opportunities to people with disabilities and their total contribution in the building of the nation. In 2001, the Government of India set up the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities. Earlier, in 1997, a National Handicapped Finance and Development Corporation was set up. These institutions have been established to encourage economic development of individuals with disabilities. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 243 Self-Assessment Questions 5. Fill in the blanks with appropriate words. (a) The National Commission for Human Rights (NHRC) was set up in India in . (b) of the International Covenant on Civil and Political Rights (ICCPR) pertains to preventive detention. 6. State whether the following statements are true or false. (a) India is not a signatory to the Beijing Platform for Action for women. (b) India was the first country to ratify the UN Convention on the Rights of Persons with Disabilities. 5.5 International Covenant on Economic, Social and Cultural Rights (ICESCR) and India The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the UN General Assembly in 1966. It is part of the International Bill of Human Rights, along with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). It is in force since 1976. Monitored by the UN Committee on Economic, Social and Cultural Rights, it commits its parties to work toward the granting of economic, social and cultural rights to individuals. Overview of key provisions of ICESCR Article 1: Right to self-determination Article 2: Right to non-discrimination based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status Article 3: Equal right of men and women in the enjoyment of ESCR Article 4: State may subject such rights only to such limitations as are determined by law only in so far as this may by compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society Article 5: No torture or cruel, inhuman, degrading treatment or punishment Human Rights and Media Unit 5 Sikkim Manipal University Page No. 244 Article 6: Right to work. It includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts and will take appropriate steps to safeguard this right. Article 7: Right of everyone to the enjoyment of just and favourable conditions of work which ensure fair wages, equal pay for equal work and a decent living; safe and healthy working conditions; promotion, rest, leisure and reasonable limitations of working hours and periodic holidays with pay Article 8: Right to form and join trade unions. It is closely linked to the freedom of association, which is widely recognized in international Human Rights Law. These rights, combined with the right to strike are fundamental, if the rights of workers and other citizens under the Inter-national Covenant on Economic, Social and Cultural Rights are to be implemented Article 9: Right to social security and social insurance. The States Parties recognize the right of everyone to social security, including social insurance. Many States do not maintain adequate social security or social insurance provisions under domestic laws protecting people in circumstances such as old age, disability, ill health or other situations not allowing them to earn a decent living. Social security schemes in medical care, cash sickness benefits, maternity benefits, old age benefits, invalidity benefits, survivors benefits, maternity benefits are therefore important. Article 10: Protection and assistance for the family. It provides protection for the family, mothers and children. The committee on ESCR has not spent a great deal of time in examining situations relating to family rights, but has devoted increased attention to the rights of the child under Article 10(3). In particular, it has paid attention to child labour and the living conditions of children. Article 11: Right to an adequate standard of living. The committee on ESCR has defined the term adequate housing to comprise security of tenure, availability of services, affordability, habitability, accessibility, location and cultural adequacy. The committee has decided on several occasions that certain States Parties had violated provisions of Article 11 on account of forced evictions. Article 12: Right to health. The States parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Article 13 & 14: Right to education Human Rights and Media Unit 5 Sikkim Manipal University Page No. 245 Article 15: Right to culture and to benefit from scientific progress Articles 16 and 17: Members to submit periodic reports to the Committee on ESCR Monitoring of ICESCR by the Committee on ESCR Compliance by States parties (around 155) with their obligations under the covenant and the level of implementation of the rights and duties in question is monitored by the committee on economic, social and cultural rights, which submits, annual reports on its activities to ECOSOC. The committee on ESCR draws its authority from ECOSOC and is comprised of 18 experts who are elected by ECOSOC for four year terms. They are independent and serve in their personal capacity, not as representatives of Government. It meets twice a year for a three week sessions each. The committee on ESCR draws its information from the following sources: Reports submitted by States parties Information from UN specialized agencies including ILO, UNESCO, WHO, FAO, World Bank, IMF, UNDP, UNHCR, Habitat and others NGOs It adopts a constructive dialogue approach while dealing with States parties. It examines, whether or not the norms contained in the covenant are being adequately implemented in States parties and how the implementation and enforcement of the covenant could be improved, so that, all people can actually enjoy them in full. Drawing on the legal and practical expertise of its members, the committee also assists Governments in fulfilling their obligations under the covenant by issuing specific legislative, policy and other suggestions and recommendations such that Economic, Social, Cultural Rights are more effectively secured. Under Articles 16 and 17 of the covenant, States parties undertake to submit periodic reports to the committee within two years of the entry into force of the covenant for a particular State party, and thereafter once every five years. In these reports, the States parties are expected to outline the legislative, judicial, policy and other measures which they have taken to ensure the enjoyment of the rights contained in the covenant. States parties are also required to provide detailed data on the degree to which the rights are implemented and areas where particular difficulties have been faced in this respect. The committee has issued reporting guidelines specifying the types of information required. The reporting process is not a mere formality. Non-submission of reports by a large number of States parties and resource constraints of States are some problems. Still, this mechanism has a number of important functions like initial Human Rights and Media Unit 5 Sikkim Manipal University Page No. 246 review function, the monitoring function, the policy formulation function, the public scrutiny function, the evaluation function, the function of acknowledging problems and the information-exchange function. The committee on ESCR issues General Comments from time to time elaborating the normative content of various rights for the benefit of States parties. In its, General Comment No.14 on the right to health, CESCR discusses the core obligations and elements of the right, namely, Availability Accessibility Acceptability Quality Similar comments have been issued on right to education, adequate standard of living etc. 5.5.1 India and ICESCR India signed the ICESCR on 10 April, 1979, declaring: I. With reference to article 1 of the International Covenant on Economic, Social and Cultural Rights and article 1 of the International Covenant on Civil and Political Rights, the Government of the Republic of India declares that the words `the right of self-determination appearing in [this article] apply only to the peoples under foreign domination and that these words do not apply to sovereign independent States or to a section of a people or nationwhich is the essence of national integrity. II. With reference to article 9 of the International Covenant on Civil and Political Rights, the Government of the Republic of India takes the position that the provisions of the article shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of article 22 of the Constitution of India. Further under the Indian Legal System, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State. III. With respect to article 13 of the International Covenant on Civil and Political Rights, the Government of the Republic of India reserves its right to apply its law relating to foreigners. IV. With reference to articles 4 and 8 of the International Covenant on Economic, Social and Cultural Rights, and articles 12, 19 (3), 21 and 22 of the International Covenant on Civil and Political Rights the Government of the Republic of India Human Rights and Media Unit 5 Sikkim Manipal University Page No. 247 declares that the provisions of the said [article] shall be so applied as to be in conformity with the provisions of article 19 of the Constitution of India. V. With reference to article 7 (c) of the International Covenant on Economic, Social and Cultural Rights, the Government of the Republic of India declares that the provisions of the said article shall be so applied as to be in conformity with the provisions of article 16(4) of the Constitution of India. Source: http://nhrc.nic.in/Publications/Disability/Chapter04.htm Activity 2 Find out the provisions under the Directive Principles of State Policy that correspond to the provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Self-Assessment Questions 7. Fill in the blanks with appropriate words. (a) ICESCR was adopted by the UN General Assembly in 1966 and came into force in. (b) Article 1 of ICESCR provides for right to . 8. State whether the following statements are true or false. (a) Article 11 of ICESCR provides for right to an adequate standard of living. (b) India signed the ICESCR in 1979. 5.6 Human Rights: Chinese and US Constitutions This section deals with the provisions relating to human rights in the Constitutions of China and US. 5.6.1 Chinese Constitution and Human Rights The Constitution of the Peoples Republic of China is the main law within the Peoples Republic of China. The existing version of the Chinese Constitution was adopted by the 5th National Peoples Congress on December 4, 1982. Later, some revisions were made in it in 1988, 1993, 1999 and 2004. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 248 The following are the fundamental rights and duties of the Chinese citizens: Article 33: All persons holding the nationality of the Peoples Republic of China are citizens of the Peoples Republic of China. All citizens of the Peoples Republic of China are equal before the law. The State respects and guarantees human rights. Every citizen is entitled to the rights and at the same time must perform the duties prescribed by the Constitution and the law. Article 34: All citizens of the Peoples Republic of China who have reached the age of 18 have the right to vote and stand for election, regardless of ethnic status, race, sex, occupation, family background, religious belief, education, property status or length of residence, except persons deprived of political rights according to law. Article 35: Citizens of the Peoples Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration. Article 36: Citizens of the Peoples Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination. Article 37: Freedom of the person of citizens of the Peoples Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a peoples procuratorate or by decision of a peoples court, and arrests must be made by a public security organ. Unlawful detention or deprivation or restriction of citizens freedom of the person by other means is prohibited, and unlawful search of the person of citizens is prohibited. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 249 Article 38: The personal dignity of citizens of the Peoples Republic of China is inviolable. Insult, libel, false accusation or false incrimination directed against citizens by any means is prohibited. Article 39: The residences of citizens of the Peoples Republic of China are inviolable. Unlawful search of, or intrusion into, a citizens residence is prohibited. Article 40: Freedom and privacy of correspondence of citizens of the Peoples Republic of China are protected by law. No organization or individual may, on any ground, infringe upon citizens freedom and privacy of correspondence, except in cases where, to meet the needs of state security or of criminal investigation, public security or procuratorial organs are permitted to censor correspondence in accordance with procedures prescribed by law. Article 41: Citizens of the Peoples Republic of China have the right to criticize and make suggestions regarding any state organ or functionary. Citizens have the right to make to relevant state organs complaints or charges against, or exposures of, any state organ or functionary for violation of the law or dereliction of duty; but fabrication or distortion of facts for purposes of libel or false incrimination is prohibited. The state organ concerned must deal with complaints, charges or exposures made by citizens in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures or retaliate against the citizens making them. Citizens who have suffered losses as a result of infringement of their civic rights by any state organ or functionary have the right to compensation in accordance with the law. Article 42: Citizens of the Peoples Republic of China have the right as well as the duty to work. Through various channels, the state creates conditions for employment, enhances occupational safety and health, improves working conditions and, on the basis of expanded production, increases remuneration for work and welfare benefits. Work is a matter of honour for every citizen who is able to work. All working people in state-owned enterprises and in urban and rural economic collectives should approach their work as the masters of the country that they are. The state promotes socialist labour emulation, and commends Human Rights and Media Unit 5 Sikkim Manipal University Page No. 250 and rewards model and advanced workers. The state encourages citizens to take part in voluntary labour. The state provides necessary vocational training for citizens before they are employed. Article 43: Working people in the Peoples Republic of China have the right to rest. The state expands facilities for the rest and recuperation of the working people and prescribes working hours and vacations for workers and staff. Article 44: The state applies the system of retirement for workers and staff of enterprises and institutions and for functionaries of organs of state according to law. The livelihood of retired personnel is ensured by the state and society. Article 45: Citizens of the Peoples Republic of China have the right to material assistance from the state and society when they are old, ill or disabled. The state develops social insurance, social relief and medical and health services that are required for citizens to enjoy this right. The state and society ensure the livelihood of disabled members of the armed forces, provide pensions to the families of martyrs and give preferential treatment to the families of military personnel. The state and society help make arrangements for the work, livelihood and education of the blind, deaf-mute and other handicapped citizens. Article 46: Citizens of the Peoples Republic of China have the duty as well as the right to receive education. The state promotes the all-round development of children and young people, morally, intellectually and physically. Article 47: Citizens of the Peoples Republic of China have the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits. The state encourages and assists creative endeavours conducive to the interests of the people that are made by citizens engaged in education, science, technology, literature, art and other cultural work. Article 48: Women in the Peoples Republic of China enjoy equal rights with men in all spheres of life, in political, economic, cultural, social and family life. The state protects the rights and interests of women, applies the principle of equal pay for equal work to men and women alike and trains and selects cadres from among women. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 251 Article 49: Marriage, the family and mother and child are protected by the state. Both husband and wife have the duty to practice family planning. Parents have the duty to rear and educate their children who are minors, and children who have come of age have the duty to support and assist their parents. Violation of the freedom of marriage is prohibited. Maltreatment of old people, women and children is prohibited. Article 50: The Peoples Republic of China protects the legitimate rights and interests of Chinese nationals residing abroad and protects the lawful rights and interests of returned overseas Chinese and of the family members of Chinese nationals residing abroad. Article 51: Citizens of the Peoples Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens. Article 52: It is the duty of citizens of the Peoples Republic of China to safeguard the unification of the country and the unity of all its ethnic groups. Article 53: Citizens of the Peoples Republic of China must abide by the Constitution and the law, keep state secrets, protect public property, observe labour discipline and public order and respect social ethics. Article 54: It is the duty of citizens of the Peoples Republic of China to safeguard the security, honour and interests of the motherland; they must not commit acts detrimental to the security, honour and interests of the motherland. Article 55: It is the sacred duty of every citizen of the Peoples Republic of China to defend the motherland and resist aggression. It is the honourable duty of citizens of the Peoples Republic of China to perform military service and join the militia in accordance with the law. Article 56: It is the duty of citizens of the Peoples Republic of China to pay taxes in accordance with the law. Source: The content on the Chinese Constitution has been adapted from http:// www.gov.cn/english. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 252 Amendment in 2004 In 2004, the Chinese Constitution was amended. Subsequently, official guarantees of human rights and private property were included in the Constitution. The amendment laid down the foundation of a new marker in the nations rapid march away from the rigid Communism of its founders. The guarantees indicated the direction in which Chinas leaders wanted to steer their country in the forthcoming years and conferred a legal framework on comprehensive alterations that have already taken place in the previous two decades. 5.6.2 US Constitution and Human Rights The US Constitution and amendments provide legal protection to human rights in the country. The US was actively associated with the outlining of the Universal Declaration of Human Rights (UDHR). In fact, most of the UDHR is partially based on the US Bill of Rights. The US Constitution has incorporated many inalienable human rights, such as freedom of speech, freedom of assembly, freedom of religion, freedom from cruel and unusual punishment, the right to a fair trial by jury and the right to keep and bear arms. The US governments have ensured that Constitutional amendments are implemented as the compulsory requirements of the society. The human rights Acts that were approved by the Congress following the Constitutions writing include the Civil Rights Act and the Americans with Disabilities Act. However, as the 9 th and 14 th Amendments have identified, all human rights have not been enumerated in the Constitution. Normally debates are organized by the US Government about what may or may not prove to be an upcoming human right. Such debates are organized at two forums or levels, namely the US Congress (which may spell out these rights) and the Supreme Court (which may articulate rights that are unrecognized). Further, there are instances of particular states frequently protecting human rights (through court action or legislation) not officially backed by the federal governments. Let us discuss some of the main human rights included in the US Constitution. Equality: The US Constitution guarantees that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, colour or previous condition of servitude. It also prohibits the rejection of a citizen of the right to vote based on that citizens race, colour or previous condition of servitude. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 253 Gender: The US Constitution prohibits the states and the federal governments from rejecting any citizen the right to vote on the basis of sex. This does not imply that all women have the right to vote, since suffrage qualifications are decided by individual states. However, this does imply that states suffrage prerequisites cannot prevent women from voting because of their gender. Disability: The Americans with Disabilities Act (ADA), enacted in 1990, indicates a notable shift toward the employment of individuals with disabilities to augment the contribution of qualified persons with disabilities in the countrys economy and to decrease their reliance on government privilege programmes. Freedom of religion: The US Constitution prohibits the constitution of a national religion by the Congress or the fondness of one religion over another. In other words, it guarantees the free practice of religion. Freedom of expression: The US Constitution provides for freedom of expression (such as speech, media and public assembly). Governments federal or state cannot apply prior control to expression, except in exceptional circumstances, such as the issues relating to countrys security and obscenity. Freedom of movement: US passports are required to enter and exit the country. The Presidential administration can deny or revoke passports for foreign policy or national security reasons at any time. Freedom of association: In the US, freedom of association is restricted by the Smith Act, which prohibits political parties, which promote the violent overthrow of the US Government. Labour right: The US Constitution provides for the establishment of an economy based upon highly skilled and high wage labour employed in a capital-intensive economy. Accordingly, the US Government have implemented several laws ensuring workers compensation, fair labour standards, social security, unemployment insurance, a safe workplace, collective bargaining rights and prohibition of child labour and a minimum wage. Health care: The US is a signatory to the Universal Declaration of Human Rights, which states: Everyone has the right to a standard of living adequate for the health and well-being of oneself and ones family, including food, clothing, housing and medical care. Besides, the Principles of Human Rights and Media Unit 5 Sikkim Manipal University Page No. 254 Medical Ethics of the American Medical Association (AMA) makes it obligatory for doctors to value the human rights of the patients, i.e., to provide medical treatment when required. Also, Americans rights in health care are regulated by the US Patients Bill of Rights. Death penalty: Capital punishment is a contentious issue. According to Amnesty International, the death penalty is the ultimate, irreversible denial of human rights. The US Supreme Court holds: Arbitrary imposition of the death penalty at the states discretion constitutes cruel and unusual punishment in violation of the 8th Amendment to the US Constitution. Prison system: It is at the federal, especially at the state and local levels, that the US penal system is executed. This social policy has resulted in an increasing rate of incarceration. Self-Assessment Questions 9. Fill in the blanks with appropriate words. (a) According to of the Constitution of China, the personal dignity of citizens of the Peoples Republic of China is inviolable. (b) The of the US Constitution guarantees that the right of citizens of the United States to vote shall not be denied or abridged by the US or by any State on account of race, colour or previous condition of servitude. 10. State whether the following statements are true or false. (a) The amendment of the Chinese Constitution in 2000 formally included the guarantees of human rights and private property to citizens. (b) In the US, freedom of association is limited by the John Act 5.7 Summary Let us recapitulate the important concepts discussed in this unit. The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 255 The Part III Fundamental Rights of the Indian Constitution contains a pledge that grants civil rights to every Indian so that he can live peacefully and pleasantly as a citizen of India. The function of Fundamental Rights is not just to protect but also to prevent widespread violation of human rights. The prime goal of Fundamental Rights is to protect individuals from any random actions of the State. The Directive Principles of State Policy set out aims and objectives to be taken up by the State in the governance of the country. Under the Directive Principles of State Policy, the state is directed to secure a social order for the promotion of welfare of the people; to promote social and economic justice; to provide just and humane conditions at work places; and to promote internal peace and security. Fundamental duties were added in the Constitution of India by the 42nd Amendment in 1976. Articles 14, 15, 16, 17 and 18 of the Constitution deal with the right to equality. Articles 19, 20, 21 and 22 of the Constitution deal with the right to freedom. Articles 23 and 24 of the Constitution deal with the right against exploitation. Articles 25, 26, 27 and 28 of the Constitution deal with the right to freedom of religion. Articles 29 and 30 of the Constitution provide for cultural and educational rights. Articles 32 to 35 deal with the right to constitutional remedies. Articles 3651 cover the Directive Principles of State Policy. Article 51- A covers the Fundamental Duties of Indian citizens. As the member of the International Commission on Human Rights (ICHR), which was founded in 1947, India has played an active role in it. India adopted a National Charter for Children in 2003 to restate its pledge to the cause of the child to see that no child remains starving, uneducated or ill. India was the seventh country to have ratified the UN Convention on the Rights of Persons with Disabilities. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 256 India is a signatory to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). While ratifying the ICCPR in 1979, India stated its concern regarding Article 9 of the ICCPR, which pertains to preventive detention. Article 7 of ICESCR entitles everyone to the enjoyment of just and favourable conditions of work which ensure fair wages, equal pay for equal work and a decent living; safe and healthy working conditions; promotion, rest, leisure and reasonable limitations of working hours and periodic holidays with pay Under Article 33 of its Constitution, China respects and guarantees human rights. In the US, human rights are legally protected by the US Constitution and amendments. The US Federal courts have authority over global human rights laws as a federal question, arising under global law, which is the component of the US law. 5.8 Glossary Fundamental rights: A generally-regarded set of entitlements in the context of a legal system, wherein such system is itself said to be based upon this same set of basic, fundamental, or inalienable entitlements or rights Directive Principles of State Policy: Guidelines to the central and state governments of India to be kept in mind while framing laws and policies Fundamental Duties: Moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India Ex-post facto law: A law which imposes penalties retrospectively, i.e, on acts already done, and increases the penalty for such acts Double jeopardy: A procedural defence that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction Self-incrimination: Act of accusing oneself of a crime for which a person can then be prosecuted Human Rights and Media Unit 5 Sikkim Manipal University Page No. 257 Preventive detention: Imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime Begar: A form of social labour without payment Habeas corpus: A writ, or legal action, through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence Uniform Civil Code: The same set of secular civil laws to govern all people irrespective of their religion, caste and tribe Charter: The grant of authority or rights, stating that the granter formally recognizes the prerogative of the recipient to exercise the rights specified Covenant: A solemn agreement to engage in or refrain from a specified action 5.9 Terminal Questions 1. List the six fundamental rights provided by the Indian Constitution. Discuss how the demand for human rights arose during Indias struggle for independence. 2. Describe the constitutional provisions relating to right to equality and right to freedom in India. 3. Evaluate the status of right to freedom in India.. 4. Discuss the various Articles of the Indian Constitution covering the Directive Principles of State Policy. 5. Evaluate the application of various international human rights instruments in India. 6. Compare the provisions relating to human rights in Chinese Constitution with those in the US Constitution. Human Rights and Media Unit 5 Sikkim Manipal University Page No. 258 5.10 Answers Answers to Self-Assessment Questions 1. (a) Fundamental Rights; (b) Ireland 2. (a)False; (b) False 3. (a) Article 14; (b) Article 19(2) 4. (a) True; (b) True 5. (a) 1993; (b) Article 9 6. (a) False; (b) False 7. (a) 1976; (b) Self-determination 8. (a) True; (b) True 9. (a) Article 38; (b) Equal Protection Clause 10. (a) False; (b) False Answers to Terminal Questions 1. Refer to Section 5.2.1 2. Refer to Section 5.3.1 3. Refer to Section 5.3.1 4. Refer to Section 5.3.2 5. Refer to Section 5.4.1 6. Refer to Section 5.6 5.11 Further Reading 1. Jaswal, Paramjit S. and Nishtha Jaswal. Human Rights and the Law. New Delhi: APH Publishing, 1996. 2. Begum, Syed Mehartaj .Human Rights in India: Issues and Perspectives. New Delhi: APH Publishing, 2000. Unit 6 Child and Human Rights Structure 6.1 Introduction Objectives 6.2 The Rights of Children 6.3 Convention on the Rights of the Child, 1989 6.4 Human Rights and Female Foeticide 6.5 Sexual Exploitation, Forced Labour and Child Labour 6.6 Child Prostitution 6.7 Illegitimate Child 6.8 Delinquent Child 6.9 Human Rights Violation of Street Children 6.10 Parenting and Child Health 6.11 Summary 6.12 Glossary 6.13 Terminal Questions 6.14 Answers 6.15 Further Reading 6.1 Introduction In the previous unit, you studied about the Indian Constitution and human rights. In this unit you will study about child and human rights. Children are the most vulnerable members of society and therefore entitled to special care and assistance. Like adults, children also have a status in society, as rightful members, and most importantly, as human beings. As per Article 6 of the Convention on the Rights of the Child (CRC), Children have the right to live. Governments should ensure that children survive and develop healthily. The implementation of the Convention on the Rights of the Child (CRC) represents true progress because it serves to transform the public policy debate about children. Children also have the right to life. This is a universally recognized right for all human beings. It is a fundamental right which governs all other existing rights. In its absence, all other fundamental rights have no reason to exist. The childrens right to survival is of prime importance according to the Convention. In this unit, you will also study about female foeticide, laws regarding sex- determination, sexual exploitation and child labour. The right to abortion is considered by many women as an absolute and inalienable right, equivalent to Human Rights and Media Unit 6 Sikkim Manipal University Page No. 260 right over ones own body and reproduction thereof. However, this view is debatable as once a foetus is conceived, it has the fundamental right to live. Many laws have been passed by the Government with a view to prevent female foeticide. This is one of the many ills still prevailing in Indian society. Another ill that plagues society is child abuse. Child prostitution has far-reaching consequences on the child, physically, morally and psychologically. There is an urgent need to address this issue and rehabilitate such children. Health-wise, India has a long way to go as its health records are really poor as compared to other countries. As per the research conducted by UNICEF, more than 2 million children die in India from diseases that could have been easily prevented. The Infant Mortality Rate (IMR) stands at a shocking 63 deaths for every 1000 live births. Objectives After studying this unit, you should be able to: Identify the rights of children Explain the complete perspective of child rights in the context of the Indian Constitution. Discuss the Convention on the Rights of the Child Recognize that the right to life is a fundamental right which governs all other existing rights Evaluate the practice of abortion as a right women can enjoy Discuss female foeticide as a social custom Discuss child labour as one of the biggest problems especially in India Classify child prostitution as a rigorous case of child labour Explain human rights violation of street children Examine the salient features of traditional Indian parenting 6.2 The Rights of Children Like adults, children also have a status in society, as rightful members, and most importantly, as human beings. When thinking about the entitlement of children, the most critical question to ask is whether children have any rights. Do they have the same rights as adults, or are they different? Given their vulnerability, should they be given special rights? On the other hand, should Human Rights and Media Unit 6 Sikkim Manipal University Page No. 261 their inability to make informed decisions exclude them from certain rights that are given to adults? Almost all nations and international bodies recognize children as special category in accordance to rights. Thus, United Nations Convention on the Rights of the Child has been supported by almost all the countries. As per the convention, children are entitled to a number of rights. For instance, children have the right to life and right to express their opinions in matters that are related to them. At this point there is a need to distinguish between positive rights, rights recognized by law, and moral rights, those recognized by society as being morally obligatory. Having positive rights does not automatically guarantee that children have, or should have, moral rights. The debate on the nature, quantum and scope of rights that children must be entitled to has for long been the subject of philosophical debate and consideration. A study of these debated, given an insight into the very value and nature of rights as well as the moral status of children themselves. There is no denying that childrens moral status should be protected and secured, and this makes it important for us to answer the simple question that if children are to have any rights at all, what should such rights be? Some argue such rights can be secured by us, as adults, discharging our obligations and duties towards them. Others say that much as certain things are not done to animals, similarly there are things that we ought not to do to children as well, without necessarily thinking of either of them having any rights as such. However, children and animals cannot be compared, after all children are human beings and they should be given some basic rights that are given to humans beings. On the other hand, children cannot possess the role-dependent rights that adults have, which are rights, required or assured, for carrying out or playing a role. Thus a professor has rights that students do not, a politician has rights that those not-elected to office do not and owners of companies have rights that employees do not. This strand of thought is interesting as it envisages a potential situation where adults too may have no more rights than children owing to the fact that they can not play roles that are related to the role-dependent rights. Nonetheless, we cannot assume that children have all the fundamental human rights that adults are entitled to. Primary among this is the right to self- determination or choice of say, marrying, work/employment, seeking education, living in another city, and so on. It is these fundamental rights that are denied to children, and even though parents/guardians can overrule this choice of the children, their right to choice does not completely disappear. If children are not Human Rights and Media Unit 6 Sikkim Manipal University Page No. 262 given certain human rights, it does not necessarily mean that they are not considered humans. For example, no one argues that like animals, children can be denied the right to life itself; in fact most people will insist that children should be protected against harm from adults. On the other hand, it is fairly prudent to insist that children should not get the right of complete self-determination. John Locke argues that a person is one who posseses moral agency and has the ability to be responsible for his/her actions, and in that respect children may be excluded from being classified as persons. However, stringent or more relaxed conceptions and definition of personhood at different stages and age, include or exclude children. Nevertheless it cannot be denied that children are humans and are thus entitled to a definite moral regard. The Rights and the Welfare Approach A complete\ perspective of child rights has been given in the Constitution of India. A number of international legal instruments, such as CRC, have also been signed by India. However, the government of India concentrates on the well- being of children rather than their rights because implementing rights can have political implications. This makes the work of child right activists challenging as they have to work really hard to promote and protect rights as positive social values. Welfare then remains the main focus of governmental activities in this regard. India will have to take up a policy that tackles the provisions of the CRC. Undoubtedly, the draft of National Policy (Charter) for Children, which the parliament has passed recently, is insufficient since the complete range of rights are not dealt with in this draft and no reference to the CRC has been made. 6.2.1 Child Rights From the perspective of an adult: A Controversy There is a lot of controversy regarding the laws made for children. These laws are neither child-friendly nor child-centred as these have been formulated from adultsperspective. Moreover, they are not in tandem with the CRC and do not protect the interests of children. The definition of a child in the Indian legal and policy framework is itself problematic. According to the CRC, a person below 18 years of age is termed a child but many laws do not adhere to this definition completely. These laws use different age groups to define a child. A close examination of these laws shows that only the Juvenile Justice (Care and Protection) Act 2000 resonates with the CRC. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 263 Most of the laws that have been formulated for children are not child- centred. For instance, a difference between legitimate and illegitimate children has been given in the family laws. The basis of this differentiation is the relationship or marital status of childs parents. Why should a child be treated badly for the decision taken by his parents? The condition of a child who is born out of rape is even worse. He is considered disgraceful and illegitimate by society as well as law. 6.2.2 Approach of Constitution of India on Child Rights: Critic Access to health Owing to the privatization of health services, the health of poor children has become a matter of serious concern. Environmental degradation and pollution have made the situation even worse. Not only this, child labour has worsened the situation as many children are made to work in miserable as well as unhygienic environment. In India, many children die of malnutrition, starvation and of diseases which could have been prevented easily. As per the records of UNAIDS, more than 1,70,000 children are suffering from HIV/AIDS in India (2001). These children are usually ostracized by their society and their family. Rather than taking actions, our government is found fighting over the number of infected people in our country. Juvenile diabetes is another problem which many children of our country are fighting with. According to the Constitution, health care is the duty of the State but the issue of public health has not been dealt with in any law. The Reproductive and Child Health Programme of the Ministry of Health and Family Welfare deals with childrens health. However, the primary focus of this programme is to ensure reproductive health, safe pregnancy and delivery, and child survival. The primary health care system addresses other health needs of children, but such needs are not addressed specifically or separately. The population policy in the states have also proved children unfriendly. According to this policy, people who have more than two children are not allowed to take up elected positions in government. Due to this, many parents who aspire to be politicians either disown their children or leave them to be adopted by someone else. In National Health Policy 2000, children are not mentioned under a separate category. This shows that enough attempts have not been made to take care of childrens health in this policy. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 264 Education for all The government has not been able to fulfill this promise as yet. A close examination of the State policy related to education shows that it is not going to bring equality among all children. While some parents can afford the expenses of sending their children to big private schools, poor parents would have to contend themselves by sending their children to non-formal schools where children are likely to be taught by untrained teachers. According to many educationists, the new curriculum framework designed for these children does not cover complete syllabus. The 93rd Amendment Bill, passed as the 86th Amendment to the Constitution, has made education a fundamental right of children. However, this bill focuses on the education of children from 6 to 14 years of age. A close examination shows that children between 06 years are deprived of education. Many educationists believe that these years are extremely crucial for childrens education as these are considered foundation years of education. The dropout rate of school children has always remained a matter of concern. Many studies show that corporal punishment given by teachers is the major cause of high dropout rate. Many states have enacted laws to ban corporal punishment and National Education Policy 1992 does not allow corporal punishment in the education system yet many teachers have been found using violence against their students. Corporal punishment violates Child Rights as well. Teachers should be made aware of the ways in which corporal punishment proves detrimental for the growth and development of children. A child named Debu voiced in one of the workshops for children Dont I have a right to be called by my name. Why am I called a langda (lame)? This helped many children realize that children with disabilities also have this basic right to be called by their names and that these children are deprived of many opportunities which are important for their survival and development. Thus, children with disabilities should not be denied their basic rights like personal security, economic security, education and health care. Persons With Disabilities (Equal Protection of Rights and Full Participation) Act, 1995 deals with the rights of disabled people. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 265 Exhibit 1 Facilities in civic schools abysmal 26 December 2011 The CAG (Comptroller and Auditor General) has laid bare the state governments abysmal record in facilitating primary education to its citizens. In its report testing the effectiveness of six municipal corporations (MCs) in providing primary education, the CAG pointed out that the drop-out rate of primary schools students run by these MCs rose from substantially 9% in 2004-2005 to 34% in 2008-2009. The six MCs are Amravati, Aurangabad, Mumbai, Nagpur, Nashik and Solapur. In Nagpur MC, 86 schools closed down during 2004-2009 due to a substantial drop in enrolment of students. The state government has not yet responded to CAG queries on this issue. Out of 73 schools in these MCs, 11 schools in Aurangabad, Nagpur and Nashik had no toilets while eight schools had no separate toilet facilities for boys and girls. In Mumbai, 14 schools of 28 schools surveyed did not have refilled fire extinguishers while all the six schools surveyed in Solapur had no fire extinguishers at all. The report found that the BMC has spent only 9% or `3,330 crore on education from its total expenditure of `35,747 crore in 2004-2009. In an indicator to inadequate attention towards welfare of students, these MCs have spent an average nine percent of their total expenditure incurred during 2004 to 2009 on education. For example, the Brihanmumbai Municipal Corporation, the richest civic body in the state has spent only nine percent or `3,330 crore on education from its total expenditure of `35,747 crore. Nashik MC has spent five percent or `113 crore of their total expenditure of `2,195 crore. The inadequate allocation thus gets reflected in lack of basic facilities like toilets, playgrounds provided in these MC run schools. The CAG report said commode toilets, which cannot be used by physically handicapped students, have been constructed by MCs while many schools do not have green boards which reduces stress on eyes of students. 1,004 sets of textbooks and 449 sets of workbooks are lying undistributed in 15 schools run by Amravati, Nagpur and Nashik MCs. 9,359 textbooks and workbooks were in turn distributed to ineligible students of 43 schools run by these MCs (barring Mumbai, the CAG report said. What takes the cake, says CAG officials, is that the state government distributed no grants for physical education between 2004-2009. Considering Human Rights and Media Unit 6 Sikkim Manipal University Page No. 266 sports development is an essential component of Human Resource development, sports boards have not yet been set up. Even the percentage of funds provided by these MCs for sport activities ranged from nil to 0.56% of their total expenditure incurred for education, said the report. Adapted from: http://timesofindia.indiatimes.com/city/mumbai/Facilities-in-civic- schools-abysmal/articleshow/11248144.cms Accessed on: 26 December 2011 Adoption of children Adoption is considered a form of alternative family care. However, even today people adopt children keeping in mind their religion and the religion of the child, in case the religion of the child is known. Moreover, adoption is not allowed in all religions. According to the Juvenile Justice (Care and Protection of Children) Act, 2000, all people can adopt children irrespective of their religion. However, baby shops running at a large-scale and selling of children from poor families has made the situation worse. A lot of things should be kept in mind to make sure that the process of adoption is legal so that it does not become a method of child trafficking. 6.2.3 Best Interests Many people regard children as not having any rights nor the freedom to chose to live the way they want to. Due to this, children are not left on their own. According to the child welfare law and policy, it is important to promote the best interests of a child. As per the Article 3.1 of the United Nations CRC, In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 12.1 of the CRC states, States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. The principle of best interest and childs right to be heard have been explained in Section 8 of CRC. The definition of the principle of best interest differs according to the matters that are being discussed, opinions that are being given weight, and amount of weight given to these matters and opinions. As far as the term weight is concerned, the words paramount and primary have been used with the or a. These articles describe the amount of weightage Human Rights and Media Unit 6 Sikkim Manipal University Page No. 267 that should be given to a childs interests or best interest. The four possible weightages are: (i) The paramount (ii) A paramount (iii) The primary (iv) A primary In addition to these four considerations, there is one more consideration, that is, the childs choice. Thus, a childs choice as well as childs interests should taken into account while taking decisions of a child. However, the question then arises as to its extent. The following statament explains the difference between paramount and primary (Section 8 of CRC): A consideration that is paramount outranks and trumps all other considerations. It is, in effect, the only consideration determinative of an outcome. A consideration that is primary is a leading consideration, one that is first in rank among several. But although no considerations outrank a primary consideration there may be other considerations of equal, first rank. Furthermore a leading consideration does not trump even if it outranks all other considerations. A primary consideration is not the only consideration determinative of an outcome. According to this, (a) and (b) are equivalent and actual disparity is between a paramount consideration that exceeds other considerations and a primary one that need not. Thus, the actual choice is to be made between options (a) and (d) and the only consideration is a childs interests or best interests. There was a debate regarding the version that should be included in the Uinited Nations CRC and finally the weaker formulation was agreed upon. We may talk of a child or of children in general. We need to consider how a particular child is affected in a policy and how actions taken in his/her case affect other children. A policy can have unwanted repercussions. Thus, it is reasonable to interpret that the use of word children in the formulation of the Best Interest Policy (BIP) would mean that the policy is applicable to all children. This may not be in the best interest of all children. The BIP began when the judges had to make decisions regarding the custody of a child in the cases of custody disputes. In such cases, each case had to be handled differently to find the most suitable arrangement for the child . Thus, the BIP continuously uses the singular term child. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 268 There are two important areas where the BIP has functioned. One relates to decision making when talking about a child who is ill. The second relates to the custody disputes due to the divorce of a childs parents. When no consensus is reached regarding the raising of the child, the matter goes to court. Beyond these, the BIP also has various responsibilities regarding policies and laws related to children as mentioned in the United Nations CRC Article 3.1. 6.2.4 Child Survival It is important for a child to have the right to be heard. Its value lies in the fact that it is important to express ones opinions. To be able to voice our concerns on political matters is important to us. This becomes even more relevant if our opinions lead to the change we desire. We do not want to be told to keep quiet and at the same time, we do not want our opinions to be considered useless. Generally, there are some issues which require the voicing of our concern and in such cases we should be allowed to speak. Our opinion, in such cases, carries credence and may influence the final outcome. These issues are dear to us and it is important to us to speak our thoughts freely about this. In some cases, the action taken should not be reflective of the childrens views and ideas. They have only a consultative role. The final verdict may be based on the clearer picture that is obtained when children, in fact, elucidate those interests. In other instances, it is also important to give due respect to a childs expression of his opinion even though this will not affect the outcome. Just the fact that the child is capable of expressing his view is valuable as he has the right to be heard. It is important to listen to a child carefully as his opinion may influence what is done. The child, however, does not have the liberty to make his own choices even in matters affecting his interests. A representative of the child, or a guardian has the power to make decisions for him. The right to be heard gives a child a chance to convince the person who takes decisions for him/her. The child can convince the adult to take the decisions which he would have taken had he been allowed to take decisions for himself. Article 12.1 of the United Nations Convention on the Rights of the Child not only gives children the right to voice their opinion but also gives them the assurance that their opinions would be given due weight in accordance with their age and maturity. What then are childrens participation rights? How is it different from their protection rights? Participation rights give them the right to be the agents of their own lives and protection rights protect them from violent, abusive, cruel or exploitative treatment. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 269 Article 12.1 also gives justification for these rights. Understanding how to practically implement such rights is not without its problems. There is some concern in understanding the meaning of the right mentioned in Article 12.1. One of the popular British legal judgement known as the Gillick case (1986) is helpful in understanding such concerns. Under this case, a mother named Victoria Gillick was unhappy with one of the advisory circulars given to the doctors. Under this circular, doctors were allowed to counsel girls under the age of 16 regarding sexual matters. They were also allowed to provide them contraceptives without the permission of girls parents. Victoria Gillick was unhappy with this circular and tried to take the help of the court to get this circular declared unlawful. In the final judgement, the British Home of Lords declared that the circular was not unlawful. Lord Scarman, one of the Law Lords said that: The underlying principle of the law is that parental right yields to the childs right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision. Segregating children and adults in accordance to the rights possessed by them may imply different things for different people. It can be said that children enjoy welfare rights as against liberty rights which adults enjoy along with these. Adults also exert the right to let their childhood influence the kind of person they will grow up to be. In the light of this statement, we see that the scope of the principle of best-interest is restricted. If the best interests of a child are interpreted from an adults point of view, the view is likely to biased. Many people feel that a childs right to be heard would help children but the fact is that this right would be a substitute not a complement to the child right to take decisions. Self-Assessment Questions 1. Fill in the blanks with appropriate words: (a) The _______judgement came into being because a mother was unhappy with one of the advisory circulars given to the doctors (b) The ___________of the Ministry of Health and Family Welfare deals with the health of children. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 270 2. State whether the following statements are true or false: (a) Children enjoy welfare rights as against liberty rights. (b) Education for all is a promise that the government of India has been able to fulfill. 6.3 Convention on the Rights of the Child, 1989 CRC is the first legally binding international instrument that advocates the rights of children. World leaders, in 1989, determined that it was important to have a special convention for children as they often required special care and protection which was different from what adults needed. The leaders also felt that it was important to make the world aware of the fact that children are also entitled to certain rights. The Convention has described child rights in 54 articles and 2 Optional Protocols. It discusses the basic rights that all children have: 1. The right to survival 2. To develop to the fullest 3. To protection from harmful influences, abuse and exploitation 4. To participate fully in family, cultural and social life The four core principles of the Convention are 1. Non-discrimination 2. Devotion to the best interests of the child 3. The right to life, survival and development 4. Respect for the views of the child All the rights indicated in the Convention are fundamental to human dignity and are important for the holistic development of a child. Standards have been set by the Convention in various services such as health care, legal, education, civil and social. National governments have agreed to carry out the responsibilities of the Convention by ratifying or complying to it for the protection of child rights. They have agreed in front of the international community that they can be held responsible for this obligation. The right to life is a universally recognized right for all human beings. It is a fundamental right which governs all other existing rights. In its absence, all other fundamental rights have no reason to exist. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 271 The right to life, for children, means the option to be able to live with the prospect of developing and growing up into adulthood. This right comprises two essential aspects: the right to have ones life protected from birth and the right to be able to survive and develop appropriately. Every person has the right to life. Since birth, every individual is considered a living being who is in need of protection. The dignity of each person must be respected. This follows from the protection of ones right to live. Therefore, all children should have the right to be protected. The right to life is the formal prohibition against intentionally causing the death of a person. In the context of children, this right means that children will not be awarded death penalty. Also, through condemning the acts of infanticide, lives of children will be protected. This right also ensures that children have favourable conditions for growth and development. Children, then need a combination of suitable healthcare, a balanced diet and a quality education along with a healthy environment to thrive well, physically or mentally. It is the role of countries, beyond the responsibility of parents, to ensure that children have the possibility to develop in a healthy and normal fashion, under all circumstances for example peace, war, natural catastrophe. They must guarantee a protection that is suitable for all children, regardless of their social or ethnic origins. 6.3.1 Nutrition Rights As per Article 6 of the CRC, every child has the right to life, and ensuring child survival and the healthy development of each child is a responsibilty of the government. The childrens right to survival is of prime importance according to the Convention. According to Article 24 of CRC, every child has the right to good quality health care, safe drinking water, nutritious food, a clean and safe environment, and information to help them stay healthy. The CRC, on its 20th anniversary, appeals that every child should be given basic survival tools. It is the duty of society to see that the infant mortality rate is lowered significantly. The focus should be on wiping out malnourishment as this is the primary cause of child mortality and high drop-out rate in schools. According to a research, in India, appoximately 55 million children under 5 years of age are underweight. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 272 Constant undernourishment before the age of 2 leads to children suffering from diminished cognitive and physical development. This affects them even in adulthood as they are not able to prove themselves as productive in their jobs as their peers. In India, almost one million newborns die every year during the first month of life and another million die between 29 days and five years. UNICEF, in coordination with the Government, is taking steps to persuade all women to have institutional deliveries so that both mother and baby receive proper post-natal care for at least 72 hours. 6.3.2 Protecting the Right to Life UNICEF is a campaigner for the protection of child rights. It helps to meet the basic needs of children and to give them an opportunity to realize their full capability. To fulfill this task, UNICEF works under the guidance of the provisions and principles of the CRC. Various legal systems and cultural traditions make up this Convention. The CRC is a set of standards and obligations that are not negotiable and have been agreed universally. These standards have been named human rights which governments of different countries should respect. The rights are founded on respect for the dignity and worth of each individual, regardless of race, colour, gender, language, religion, opinions, origins, wealth, birth status or ability. These rights give rise to certain duties that the governments and individuals are bound to perform without violating others rights. Self-Assessment Questions 3. Fill in the blanks with appropriate words: (a) The________, for children, means the option to be able to live with the prospect of developing and growing up into adulthood. (b) ________ is the primary cause of child mortality in India. 4. State whether the following statements are true or false: (a) In India, approximately two hundred infants die every year during the second month of life. (b) Human rights give rise to certain duties that the governments and individuals are bound to perform without violating the parallel rights of others. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 273 6.4 Human Rights and Female Foeticide In many western societies, women now enjoy extensive reproductive rights, not only over when and if to have a child, but also over knowing the sex of the child. On the other hand, the issue of sex-selection in developing countries, including India, is mediated by societal pressures and cultural practices and prejudices. These do not simply restrict the autonomy of the woman, but violate the fundamental rights of girls and women, to life. The right to abortion is considered by many women as an absolute and inalienable right, equivalent to right over ones own body and reproduction thereof. The issue of abortion itself has been open to wide debate, ridden with many moral issues and complications. While the conception of the modern woman is of one who chooses if and when to have children, there are those who argue that once a foetus is conceived, it has the fundamental right to live. The introduction of amniocentesis tests enables detection of foetal deformities and thus allows legal abortion to those foetuses which would result in the birth of deformed children. Some argue that this selective abortion will not allow differently abled children to take birth, thus, save them from the countless difficulties that differently abled people have to encounter in life. Concurrently, this reasoning is also applied to sex-selective abortion. Western supporters argue that since most couples wish to have less children, the choice of the childs sex enables them with freedom and autonomy over their bodies. In western societies where male-preference is not so pronounced, choice over sex selection may result in a more balanced outcome. On the other hand, in countries like India and China, a decline in the number of girls born and a progressively worsening sex ratio points to a trend opposite to that of western societies. However, here too pro-abortion supporters argue that sex-selective abortion will lead to reduced growth in population and an enhancement of the status of women in the society. The perceived inferiority of women and their rights have been a subject of much debate, and only at the Beijing conference of 1995, that the rights of women were actually recognized. In spite of this, in India, 200 million of the total 300 million illiterates are girls and women. It is said that the practice of sex-selective abortion of girls is a result of the perception that women are inferior to men and the continuance of this belief actually lead to deterioration in their social, educational, health and economic status. Studies estimate that nearly 50 million girls in India are missing, simply because either they were not allowed to be Human Rights and Media Unit 6 Sikkim Manipal University Page No. 274 born or were left to die as soon as they were born. This has seriously skewed the sex-ratio and increased the problem in certain Indian societies where the differentiation between girls and boys was not so strong previously. While this phenomenon is as prevalent in urban areas, as it is in the countryside, it is ironic that it is in the more prosperous states of Punjab and Haryana where sex-ratios are the worst compared to the relatively backward states. Fetal Rights: Various Treatments International Law and Convention The American Convention on Human Rights of 1969, to which 24 Latin American countries are signatory, categorically grants rights to fetuses. The treaty argues that beginning from the moment of conception, human beings have rights, though the most recent binding interpretation, does not require signatory nations to ban abortion. USA is not a signatory to the convention. Philosophy Natural rights philosophies presume a neurophysiological definition of personhood and argue that fetuses gain rights when they become sentient or self-aware. The general understanding of self-awareness would occur in fetuses at 23 weeks, after considerable neocortical development. Previously, self-awareness was presumed to occur at 20 weeks, which is at the time of quickening. Religion The interpretation of when fetuses become persons differs across religions. Most religions hold that personhood occurs when a fetus is implanted with a non-physical soul. While some argue that this occurs at conception itself, others put this at a much later stage of pregnancy, around the 20 th week. Those religions that do not believe in the concept of soul are silent or ambiguous on the treatment or definition of fetal personhood. Genital mutilation began as a traditional practice in some African states. Similarly, female foeticide spread in India, apparently to protect women against the inevitable violation of their fundamental right. In cases when the girl child is allowed to take birth, she has to go through a number of prejudices. Infant mortality for girls in India is significantly higher than that of boys. In addition, women and girls are expected to engage in work both within the house as well as outside, in the collection of water, fuel-wood, fodder and so on. The amount of time spent in these activities as well as the physical strain that these activities inflict on the Human Rights and Media Unit 6 Sikkim Manipal University Page No. 275 women, lead ultimately to loss of health, higher levels of illiteracy, inability to participate in societal activities and ultimately, weakening of their status in society. Documents and international conventions to which India is signatory such as the United Nations declaration on Human Rights, the Committee on the Elimination of Discrimination against Women, International Covenant on Civil and Political Rights and the Convention on the Rights of the Child all enshrine fundamental human rights. The primary aim of all these documents is to protect the right to life and equality of sexes. In addition, various national laws such as the Anti-Dowry (Dowry Prohibition) Act of 1961, Domestic Violence Act of 2005 and the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 are all aimed at empowering women through prohibition and prevention of activities that impede their right to life, equality and non-discrimination. However, the mere enactment of these laws is not sufficient as they have to be strictly enforced and followed. In some instances, such as the Hindu Property Act, which allows daughters an equal share in the property of the father, policies have backfired. Instead of altering the entire cultural set-up which would allow equal property rights to men and women, and thus dilute the hard earned family property, female foeticide is seen as the easier recourse. Many countries have held reservations on the CRC and the CEDAW as it allows them to interpret the laws in such a way so that violation of the conventions does not have any negative ramifications for the signatory nation. However, wherever a right exists, it is the duty of the state, as a protector of rights, to ensure that the right is delivered. Wherever there exist, the right to live irrespective of sex, the state must ensure that the right is preserved and upheld. What is thus needed is a strong intergovernmental commitment to preservation of child and human rights, without any clauses or reservations. It is also the responsibility of the international community to ensure that signatory nations not violate the conventions and if at all violations occur, it must be guaranteed to citizens of the world that they will be met with stringent sanctions. 6.4.1 Prevention of Sex Determination in India The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act was passed by the Government of India in 1994. This act was aimed at preventing female foeticide but it was not implemented effectively. Thus, it was amended and replaced by the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act in 2002. The act mandated the setting up of Supervisory Board, an Appropriate Authority and an Advisory Committee at a Human Rights and Media Unit 6 Sikkim Manipal University Page No. 276 central and state level It is the responsibility of the Supervisory Board to monitor and make amendments in the provisions of the Act. Inspection, investigation and penalizing of offenders and defaulters is carried out by the Appropriate Authority, aided by the Advisory Committee. The first offence may lead to fine of Rs 10000 as well imprisonment of up to three years. The fine and the duration of imprisonment increases for repeat offenders. The central or state Medical councils are informed of the contravening of the provisions of the act by medical practitioners. When conducting any prenatal diagnostic procedure, medical practitioners have to take written consent from the pregnant woman in a local language. The prenatal test itself may be performed only in specific conditions such as the presence of genetic diseases in parents family history, chromosomal abnormalities in women over the age of 36, and so on. Self-Assessment Questions 5. Fill in the blanks with appropriate words: (a) The _______is considered by many women as an absolute and inalienable right. (b) The full form of CEDAW is ________________. 6. State whether the following statements are true or false: (a) The Pre-conception and Pre-natal Diagnostic Techniques Act was passed by the Government of India in 1994, with the aim of encouraging female foeticide. (b) Prenatal tests may be performed only in specific conditions such as the presence of genetic diseases in parents family history, chromosomal abnormalities in women over the age of 36, etc. 6.5 Sexual Exploitation, Forced Labour and Child Labour Sexual exploitation of a child or an adolescent below the age of 18 by an adult, which includes payment in cash or kind to the child or adolescent or to a third party, is defined as commercial sexual exploitation of children. According to the International Labour Organization, commercial sexual exploitation of children is a repulsive defilement of the human rights of children. It is compared to a form of economic exploitation such as slavery and bonded labour. The ILO defines commercial sexual exploitation as including, but is not restricted to, the following: Human Rights and Media Unit 6 Sikkim Manipal University Page No. 277 The use of girls and boys in sexual activities remunerated in cash or in kind (commonly known as child prostitution) in the streets or indoors, in such places as brothels, discotheques, massage parlours, bars, hotels, restaurants, etc. The trafficking of girls and boys and adolescents for sex trade. Child sex tourism. The production, promotion and distribution of pornography involving children. The use of children in sex shows (public or private) According to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, also known as the Palermo Protocol, exploitation includes the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. Exploitating children under the age of 18, in activities such pornography, sex trade and other related activities, is also recognized as constituting violence in the 2006 Report of the Independent Expert for the United Nations Study on Violence Against Children. Adopted in 1996, at the World Congress against Commercial Sexual Exploitation of Children, the Stockholm Declaration defines it as a form of coercion and violence against children (that) amounts to forced labour and a contemporary form of slavery. Child Labour: Definitions Every work done by children, cannot or should not be defined as child labour and thus can not be deemed liable for prosecution. Participation in work by children is considered positive if it does not affect their health, schooling or general personal and physical development. This includes, helping out parents in occasional household work, assisting in family business, or engaging in work during holidays to earn small pocket money. These activities provide children with important life skills and experiences which help them later in their adult life as productive members of the society. However there are many people as well as industries which employ young children to work under unsafe and grueling work conditions, with low and exploitative wages. This includes working long hours in hazardous industries such as construction and fireworks. While some of the work done by children is difficult and demanding, others can be hazardous and ethically unacceptable. The ILO defines child labour as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. It includes work which is mentally, physically, socially or morally Human Rights and Media Unit 6 Sikkim Manipal University Page No. 278 dangerous and harmful to children and which interferes with their schooling by depriving them of the opportunity to attend school; obliging them to leave school prematurely or requiring them to attempt to combine school attendance with excessively long and heavy work. Child labour also involves the enslavement of children, exposure to hazards to health and life, and long and even permanent separation from home and family. The classification of work as child labour is premised on the age of the child, the type of work, working hours as well as working conditions. The classification depends, additionally on the definition of the country itself, and would vary within the country from one sector to another. Child labour is one of the biggest problems plaguing India today and is defined as the employment of children under the age of fourteen. While child labour is banned in most countries it is not unusual to find children working in many different places, right from small restaurants and tea-stalls to big factories and workshops. What makes child labour attractive to the employers is its cheap and plentiful availability as well as the lack of any organized resistance or demands from the child which makes it easier to exploit them. The inhuman practice of child labour, that started with the Industrial Revolution centuries ago, continues unabated to this day in many parts of the world. Activity 1 In 1996, the Supreme Court ordered the enforcement of the Child Labour (Prohibition and Regulation) Act of 1986. Find out if this prohibition is being strictly enforced in Sivakasi, Indias fireworks capital. Self-Assessment Questions 7. Fill in the blanks with appropriate words: (a) Child labour is one of the biggest problems plaguing India today and is defined as the employment of children under the age of _______. (b) The inhuman practice of child labour started with the ________ centuries ago, 8. State whether the following statements are true or false: (a) Commercial sexual exploitation includes the production, promotion and distribution of pornography involving children. (b) Child labour is encouraged in many countries today. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 279 6.6 Child Prostitution In earlier times, children were thought to possess gentle feelings and were treated with tenderness, compassion and kindness. Although their psychophysical needs were not met at that time as the mechanics of child development were not known to people. On the other hand, today on scientific grounds, it can be presumed that work is a direct fulfillment of childs abilities and potentials. It also helps in the holistic development of a child. However, when work is taken up for the fulfillment of some needs, it hampers the growth of the child to a large extent. Hence, child labour is described as any work that is performed by children. It harms their health and safety, hinders with their education and keeps them away from a number of activities that are important to their holistic development. In this regard, child labour becomes a social evil. The problem of child labour is a multi-dimensional. A very important type of child labour is child prostitution. Many people feel that child prostitution includes only girls, however, the fact is that it includes boys as well as girls. This problem is widespread today. Prostitution is one of the oldest profession which is looked down upon. Women who adopt this profession are not accepted by the society and are abhorred by them. Their life style is miserable but worse sufferers of this exploitation are child prostitutes. Today, a new business has come up and that is of kid porn. It consists of photos, videos and texts of children in a sexual manner. Child prostitution is categorized under child labour and raises a lot of ethical problems. Cases Devdassi system is one of the most prevalent forms of child prostitution. Under this form, girls (devdassis) are offered to the Goddess Yellamma and are called the servants of God. It is said that these girls get married to the Goddess and after this they can not marry any mortal. The most striking fact about this system is that girls are sold by their parents at a very young age. The ceremony in which girls are offered is organized twice every year. The main ceremony takes place at Karnatakas Saudatti village during the second fortnight of January. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 280 Every year about 4,000 to 5,000 girls are devoted to the Goddess. When these girls attain puberty they participate in a secret ceremony in which they are sold to the highest bidder. According to a study, one third of these devdaasis are at present working in Mumbais cheap brothels. The most horrifying truth is that about three fourth of these devdaasis are under fourteen years of age. Many of these girls are from low castes such as Mahars and Matangs. Generally, these castes do not give much importance to education and are from poor families. In order to help these girls, government established the Prevention of Devdassis Act. This Act was implemented in 1935 and has been amended as well. In spite of the fact that it has been banned by the government, the system is still prevalent in the country.In the name of invoking the blessings of the deity, girls are first dedicated to the Goddess and then pushed into prostitution. Following are some of the important facts in relation to child prostitution in India: Poverty, urbanization, unemployment are some of the the important features that lead to child prostitution The arrival of wealthy men from Gulf countries has increased this trade in places like Mumbai and Hyderabad. Often poor parents send their daughters in this profession so that they can get get two square meals in a day. Sometimes, orphan children are forced into this profession by their relatives and guardians. Some of the children get lured to Mumbai in order to fulfill their dream of Bollywood and end up being prostitutes. Effects The practice of child prostitution is harmful to the health of children. It hampers their physical, mental, emotional, social and psychological development. The mental trauma that a child prostitute cannot be imagined. The child prostitutes become unsuitable for other works as they are uneducated and do not have knowledge of any other work. Being involved in this profession, children become a part criminal world and start associating with criminals and criminal activities as they fail to develop moral values due to their profession. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 281 Law and child prostitution In order to control child prostitution, the government has passed The Immoral Traffic (Prevention) Act. This Act was passed in 1987. Under this Act, if a woman is detained for the purpose of prostitution, then the person responsible for it is to be punished with a minimum of seven years of imprisonment and maximum of life imprisonment. Similarly, people who force children into prostitution are given the same punishment. Previously, the Act was known as Suppression of Immoral Traffic in Women and Girls Act (SITA). Now, the Act has been amended and has been renamed as well. The present Act is more effective as well as stringent. The definition of prostitute itself has been changed. It now includes both sexes, thus, young boys who were forced into this profession can now be saved due to this Act. In this Act, the victims have been categorized under three groups: children, minors and majors. According to this act, children are those who are up to 16 years of age, Those who fall in the age group of 16 to 18 years are considered minors and people who are above 18 years of age are termed as majors. The punishments that are given for these offences differ in severity. A person who is responsible for the detention of children or minors for the purpose of prostitution is given a severe punishment. As per the new Act, a special police officer needs to be appointed for the investigation of offences that have inter-state ramifications. In cases when women are arrested from a brothel, only a female police officer can interrogate them. However, if there is no female officer present in the police station, then a male police officer can interrogate the arrested women in the presence of a female representative of a documented welfare institution or organization. In case a search or a raid needs to be made in a brothel, at least two police women need to accompany the police officers. Rehabilitation It is extremely difficult to rehabilitate prostitutes as people shy out from helping these women. They feel that these women are disgraceful and have been following a disgraceful profession. When prostitutes are rescued, police officers generally send them to remand houses or protective homes. These places are not managed properly. Moreover, after rehabilitation these girls are given a meagre sum of `75 as an aid by the government. Therefore, they generally tend to think that their previous life was much better and so when at times their pimp come to claim them in the form of a brother or a sister they happily go with them to their old life. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 282 Conclusion The Indian society has not just ignored the minor girls who are being forced into prostitution. Thus, child prostitution is still exixting in our society in spite of strict laws. Child prostitution has increased due to the increased demand for virgin prostitutes as there is a myth associated with them that sex with them cures venereal diseases. It is important that our society at large revolts against it so that this trade can be stopped. The government should provide more funds for their rehabilitation and private charitable institutions should also contribute towards it. It should very strictly punish those people who are found guilty of detaining children, majors and minors for prostitution. This practice can only be stopped if our society and government join hands to fight this menace. Self-Assessment Questions 9. Fill in the blanks with appropriate words: (a) Child labour is described as any work that is performed by _____. (b) In order to control child_________, the government has passed The Immoral Traffic (Prevention) Act. 10. State whether the following statements are true or false: (a) The arrival of wealthy men from Gulf countries has increased prostitution in places like Mumbai and Hyderabad (b) Girls who are offered to the Goddess Yellamma are known as Devdassis. 6.7 Illegitimate Child The matter concerning illegitimate children is a grave moral problem with distressing consequences on our society as well as economy. A child who is termed illegitimate goes through a trauma throughout his/her life in spite of the fact that he is not responsible for his illegitimacy. According to a study conducted in India, approximately one out of six children born in India are illegitimate. The basic question is who is an illegitimate child. A child who is born as a result of sinful sexual conduct is termed as illegitimate. That is, the parents of Human Rights and Media Unit 6 Sikkim Manipal University Page No. 283 the child are not married to each other. So, an illegitimate child does not get that much of respect in the society as a legitimate child does. Nowadays, a new debate has been going on about the illegitimate child. This problem has grown to new extent due to the so-called new morality, which gives permission to all kinds of sexual relationships without any limit. Therefore, as a result, many children are born to parents who are not married to each other. The government has provided homes for the unwed mothers; and by opening these houses the government expenditure has increased a lot as it has to take care of mothers as well as children. The matter of concern is that most of these mothers very young and are in their teens. Apart from these many unborn children are murdered every year by legal or illegal abortion. There is no way to measure how prevalent adulterous relationships are in the society. Now, there is lesser stigma, attached to children who are not born of legal marriages. It is due to certain changes in the mindsets and thoughts of people: Society does not look down upon such cases. It is not considered to be non-religious to many people. There is lesser emphasis on moral issues among larger sections of the society. Thus, to question the legitimacy of a child who is not born of legal marriages is really uncalled for as it is not the fault of the child. The child is not responsible for being born of such relationships, therefore, in the right sense, the child is not illegitimate. To look at each child as a gift from the divine, irrespective of how the child was conceived, is how such children should be looked at. When two people are involved in adulterous intercourse and a child is born of such union, it is important to see the repercussion of such an act and thus treat the child with dignity. 6.8 Delinquent Child Even though India as a country covers 2.42 percent of the planets land mass, it is home to 16 per cent of the planets population. In India, the number of children working to earn a living is amongst the highest in the world, and it also has the poorest sex ratio in the world. Even though the India Constitution secures the basic rights of all the children of this country, still there is a lot of exploitation of children based on caste, religion and ethnicity. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 284 Some of the basic procedures like registration of birth of each child with State officials remains a far cry and this keeps many children away for enjoying fundamental rights. The illiteracy rate is also among the highest in India as compared to the rest of the world. One often gets to hear news of children dying of malnutrition and lack of food despite there being enough lying in the food storages of the Government. The male female ration is biased in favour of the male child and child trafficking, sacrificial ceremonies of little children and child sexual abuse is also rampant in India. Most of the abuse and exploitation metted out to children go unreported in the media. The total lack of empathy towards such rampant exploitation is in a way passive participation by all Indians. In order to comprehend childrens human rights, children of all sections of the society need to be taken into account. Addressing only a few sections actually keeps us away from main issues. It is not only in economically backward families that child rights are violated, but also in well off homes of middle class and richer families. The nature of abuse and exploitation might differ though. The transformation of India, economically and politically need to be taken into account before any conclusions is drawn regarding this issue. Before any observation is made or any conclusion is reached in this area, factors such gender, caste, religion, the economic changes taking place in the country, all must be taken into account. Since all this determines the extent and nature of violation of children in the society. All children of the country cannot be put into one category and there exists diversity based on social, economic, regional and other human factors. Factors such as physiology or psychology of the children are also important factors that need to be considered. All these factors determine the extent of the childs vulnerability to exploitation and abuse. General bias towards the male gender is very high in India, compared to many other countries. When the child is female and facing poor social, economic and physical conditions, the extent of vulnerability is higher. To be sensitive to the issues of gender is therefore important in order to analyse the condition of childrens rights in India. The Juvenile Justice (Care and Protection) Act, 2000 was enacted by the Government when many weaknesses were found in the erstwhile Juvenile Justice Act, 1986. However, this act was passed without any serious discussions and this is a cause of worry among many sections of the society who work for child rights. The state in 2003 proposed many amendments to the law governing child rights, but these were questionable and did not satisfy the bodies working Human Rights and Media Unit 6 Sikkim Manipal University Page No. 285 for child welfare. Now, the law is presently under review with a Parliamentary Standing Committee. The Child Labour (Prohibition and Regulation Act) was enacted in 1986, to alleviate the problem of child labour in India. The Act by making a distinction between certain jobs as dangerous and non-dangerous has failed to tackle the areas in which children continue to be employed and exploited since these industries do not come under hazardous industries as mentioned in the Act. Thus, it leaves out a large section of the children who are employed as labourers but do not work in industries in which children are prohibited from working. Children continue to be employed in eating places, hotels and as domestic help and there is rampant exploitation of children in these areas. The menace of child trafficking continues to be a major cause of child rights violations in India and in other countries. There is very little information available to prove the gravity of this problem despite many organization and bodies describing child trafficking as a rapidly growing crime. Children are sold for various reasons other than sexual activities and those reasons too need to be examined seriously. Self-Assessment Questions 11. Fill in the blanks with appropriate words: (a) It is estimated that approximately one out of _____children born in India are illegitimate (b) An ________child is any child born out of wedlock. 12. State whether the following statements are true or false: (a) The embarrassment and scandal of having a child out of wedlock and being sexually immoral, has been reduced to a great extent due to acceptance of society of this sin. (b) Child trafficking is not considered as violence against children. 6.9 Human Rights Violation of Street Children India gives shelter to millions of children who are poor and destitute. Most of the children are ill, emaciated and uneducated, and as they live with miserable families who cannot take care of them, they are highly neglected. Several children Human Rights and Media Unit 6 Sikkim Manipal University Page No. 286 are even forced to work at an age in which they should go to schools. Many of them do not have a shelter and they are forced to live on roadsides due to breakdown of their families, loss of their loved ones, or even because of being unable to tolerate the abuses inflicted upon them by parents, relatives and employers. Besides, in some instances, globalization and economic liberalization have intensified the helplessness of such children. The so-called economic development of India has been successful in creating more wealth in the hands of a few privileged people which led to unequal distribution of wealth. This process has not been able to tackle the social evil of poverty and instead has caused more disparities among millions in the society. The task of accurately putting a figure on the number of children who live on the streets of the world is not an easy task. Surveys that gather data from samples taken from school and domestic households often leave out street children because these surveys are based on lifestyle of people and street children do not fall in any of the prescribed categories. The United Nations Childrens Fund (UNICEF) and the World Health Organization (WHO) have reported a growth between 100 to 150 million in number of street children in the world. India is among one of the countries with the largest number of children living in the streets. In the year 1994, UNICEF, reported that India has 11 million street children, some other organization have estimated the figure as 18 million. The sex ration of street children has been determined as being two male children for every three children. The age group that constitutes the major group is within the age of 11 to 15 years and there is also a large number of children in the age group of six to ten years old. According to various researches, most of the children who live on the streets of India are not really homeless in the true sense of the word as 90% of them do have families back in rural India and have chosen to run away from their homes and be self reliant. Children, those who runaway from homes in villages and other rural areas, either stay at railway stations and look for work or resort to begging. Most of these children suffer from diseases, malnutrition and also live under miserable conditions without proper food. These children are found doing a variety of work like working as cleaners of train boggies, or dishes at platforms or as rag-pickers. They work as newspaper vendors, some polish shoes for money, or do odd jobs at hotels and local businesses. Most of these children are vulnerable to exploitation by people involved in organ trade, drugs, in child trafficking, and sexual activities. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 287 Juvenile Justice System in India The Juvenile Justice (Care and Protection of Children) Act was passed in 2000 as an improvement to the erstwhile act of 1986. The Act ensures to protect and reduce the repercussion of economic backwardness, poverty, criminal activities and underdevelopment on children. Besides enumerating the duties of government agencies towards childcare and welfare, the Act has tried to address issues to prevent crime towards children. The Act also deals with issue of child delinquency. The Act has divided children who are addressed by this Act into two categories.: One includes children those who are in conflict with the law and the other who are in need of care and protection. In need of care and protection includes minors: Those who are found begging on the streets Those who are homeless Those whose parents have been declared unfit because of their poverty or lifestyle Those who have been sexually and physically abused Those who are believed to be at high risk of being abused in the future Most of the street children are covered under the category of in need of care and protection. And those who are in the category of in conflict with law are those who violate some Act of Indian Penal Code. Under the Juvenile Justice Act, juvenile homes have been authorized to be set up in order to take proper care of delinquent children and other neglected children. Deliquent homes with temporary holding facilities have started to look after children arrested for crimes by police or for those children who were found in negligent conditions. In these homes, children who were in conflict with the law are housed till their case come up for trial. If their crimes are proved then they are sent to special homes set up from children who are convicted of crimes. Such a home exists in Hyderabad. The children belonging to the category of in need of care and protection stay in these Observation Homes till the process of investigation regarding their parents and family is completed. In case where the investigation finds that the parents are no longer alive or are non-traceable or do not want to have child back with the family, provisions are made for taking care of the childs boarding, lodging, education and any other training by the Juvenile Welfare Board. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 288 There is often a lack of proper and effective implementation of the Juvenile Justice Act. It is duty of the state and local administration to ensure that the Act is effectively implemented as it was a law enacted by the Central Government. Despite the Act having been passed many years ago, some states have still not incorporated it in the state legal systems. No step has also been taken to make the law effectively implemented. The wide gap in the legislative implementation of the Act shows its inability to deal with the issues of street children in India. The Act has included both children in need of care and protection and children in conflict with law under the same Act and actually made both come under criminal jurisdiction. This in itself is a problem. The Juvenile Homes take care of children from both categories together and thus subject younger children, who are there on account of neglect, to older children who have committed crimes. Therefore, the law does not differentiate between the two categories in the treatment they are subjected to. The Act only suggests that children of both categories be kept in detention in these homes as a rehabilitation process. Self-Assessment Questions 13. Fill in the blanks with appropriate words: (a) _________ ranks on top in terms of the number of street children in the world (b) The Juvenile Justice (Care and Protection of Children) Act was approved in ________ with an aim to reform the 1986 Act 14. State whether the following statements are true or false: (a) UNICEF and WHO have analysed that steady growth of the number of the street children all over the world can be estimated between 50 and 120 million (b) Juveniles in conflict with the law are those arrested for violating the Indian penal code. 6.10 Parenting and Child Health In India, culture and religion play a vital role in shaping traditional Indian parenting. Indian parenting aims at complete development of children, with a focus on the cognitive, social and spiritual devlopment. Joint family system plays a great role in the upbringing of children as children come in contact with various members Human Rights and Media Unit 6 Sikkim Manipal University Page No. 289 of family like grandparents, uncles and aunts, and cousins. All these members help in inculcating important values in children. In addition, a child develops a strong bond with his mother due to practices like breast feeding. This practice not only helps in providing nourishment to child but also brings mother and child closer to each other. Cuddling is another gesture to express love and affection towards the child, which further strengthens the physical contact between the child and the parents. This strong emotional bond between the child and the Indian parents is generally established during early childhood, and therefore is a lifetime bond. The traditional Indian parenting is value-based parenting. Here, social relationships respect authority, which is an expected behavioural norm. Indians are obliged to be dutiful towards their family, parents, children and the society. They learn to respect and care for their parents. Children learn the values of mutual understanding and interdependence since they are taught to see their countrymen as members of their extended family. Children are encouraged to carry forward the name of the family with pride and honour, and fulfil their duties not only towards the family but also towards the society. From the very beginning, the children are instilled with the norms of personal chastity, modesty and social behaviour. Moreover, the practice of self-control is an integral part of character development. However, the traditional Indian parenting also has attracted a lot of criticism. According to several critics, Indian parenting is authoritative in nature, which curbs the independence and self-sufficiency of an individual. We know that Indian parenting stresses on interdependence and the duty towards family and community. This is seen as unfavourable to the development of self-identity of an individual. Moreover, the characteristic of over-protectiveness in Indian parenting is seen as restraining personal development and self-confidence. Indian parenting also involves corporeal punishment, which hampers the growth of a child in certain aspects. Regardless of the criticism, there is a great deal to learn from traditional Indian parenting. Some of the culturally appropriate parenting practices, which are generally adopted by Indian parents are: The emphasis on holistic growth and development of children The importance of development of childs character The stress on modesty in a childs behaviour The importance of society as an extended family Human Rights and Media Unit 6 Sikkim Manipal University Page No. 290 Child health On an international level, the WHO has estimated that 30 per cent of children less than 5 years of age are underdeveloped. In addition to this, weight of 18 per cent children is low for their height while 43 million children are overweight. It has been found that the lives of 1.5 million children under the age of 5 can be saved every year through optimal breastfeeding. Every year, almost 9 million children die due to diseases and infections, which can be easily prevented such as diarrhoea. This disease also leads to malnutrition in children, thus, becomes a cause of many other diseases in children. In India, 84 per cent of all health care expenditure is unaffordable, due to which several families are at risk of falling into poverty. This further results in millions of children being affected by malnutrition. In India, every third child is malnourished, which further leads to the increase in infant and child mortality rates. The most affected are the marginalized groups, such as women and children of scheduled castes/tribes, who face starvation deaths due to discrimination in Indian community. Many muslim children are also underdeveloped and underweight. Though there are a number of health care services provided in the country but children with mental health ailments and HIV/AIDS are not provided sufficient care. Differently abled children are also neglected to a great extent. Tuberculosis and anaemia are common diseases that pose a threat to the health of children in India. Moreover, the polio eradication programme in India is also regressing. Health indicators differ greatly across the country due to varying social sector budgets. Kerala has only 21 per cent underdeveloped children, while in Uttar Pradesh, 46 per cent of the children have been reported to be stunted. Moreover, many women are not able to avail health care services due to discrimination in society. Besides, only 1 per cent of the total health budget is spent on providing services related to mental health. UNICEF India estimated that every year, more than 2 million children die due to preventable diseases. In India, the infant mortality rate (IMR) is so high that sixty-three children over every 1000 children die during their infancy period and over 47 per cent infants die within a week of their birth. The most distressing fact is that these children die of diseases which can be easily prevented with timely vaccination. Vaccination for Tetanus is very important for newborns but in places such as Uttar Pradesh, Madhya Pradesh, Rajasthan, West Bengal and Assam, many children are not given this vaccination in time. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 291 The most important step to ensure good health in infants is breastfeeding. NFHS-3 data estimates that many children are not breastfed properly by their mother due to lack of knowledge. Due to this, more than 50 per cent children in the age group of 0-5 remain underweight and 44.9 per cent children between 0- 3 years of age are found underdeveloped. During infancy, hardly 50 per cent of the children receive full immunization. However, over the years, this number has been dropping significantly, which strongly indicates a problem with the universal immunization programme. As per NFHS-3 analysis in a health care facility, 60 per cent of children suffered from diarrhoea, 69 per cent had acute respiratory infection and 71 per cent had high fever. During the time of the survey, oral rehydration therapy was given to only 39 per cent of children under five who were suffering from diarrhoea. More than one fourth of the children with diarrhoea were not given any treatment. Plenty of water and adequate, healthy food should be given to children suffering from diarrhoea. However, 40-45 per cent of the children did receive sufficient food and water. Besides this, children are also put at high health risks due to child abuse, especially sexual abuse. Abuse leads to mental trauma and diseases such as HIV/AIDS. Activity 2 Discuss with your friends the advantages and disadvantages of parenting in the western countries. How is it different from the system followed in India? Self-Assessment Questions 15. Fill in the blanks with appropriate words: (a) The traditional Indian parenting is __________ parenting (b) ___________ has only 21 per cent underdeveloped children. 16. State whether the following statements are true or false: (a) Indian parenting stresses on interdependence and the duty towards family and community. (b) There are several programmes or services for children who suffer from mental health ailments. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 292 6.11 Summary Let us recapitulate the important concepts discussed in this unit: Like adults, children also have a status in society, as rightful members, and most importantly, as human beings. Just like adults, children have the right to be protected against certain ills. According to Article 6 of the Convention on the Rights of the Child (CRC), every child has the right to life and it is the governments duty to ensure child survival and the healthy development of each child. The Constitution of India gives a complete perspective of child rights Education for all is a promise that the government has not been able to fulfill till now. The 93rd Amendment Bill (passed as the 86th Amendment to the Constitution) has made education a fundamental right of children. However, this bill focuses on the education of children from 6 to 14 years of age. Article 3.1 of the United Nations Convention on the Rights of the Child states that In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The right to be heard is a valuable right. The Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights: civil, cultural, economic, political and social. It spells out the basic human rights that children everywhere have: The right to survival To develop to the fullest To protection from harmful influences, abuse and exploitation To participate fully in family, cultural and social life The right to life is a universally recognized right for all human beings. It is a fundamental right which governs all other existing rights. In its absence, all other fundamental rights have no reason to exist. The childrens right to survival is of prime importance according to the Convention. Children have the right to good quality health care, to safe Human Rights and Media Unit 6 Sikkim Manipal University Page No. 293 drinking water, nutritious food, a clean and safe environment, and information to help them stay healthy (Article 24 of CRC). UNICEF is a campaigner for the protection of childrens rights. It works towards helping to meet the basic needs of the child and to give them an opportunity to realize their full capability. The right to abortion is considered by many women as an absolute and inalienable right, equivalent to right over ones own body and reproduction thereof. Fundamental human rights are enshrined in documents such as the UDHR, ICCPR, CEDAW and the CRC all of which India is a signatory to. All of these documents advocate for amongst other things the right to life and the equality between the sexes. In 1994, the Government of India passed the Pre-conception and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection) Act with the aim of preventing female foeticide. The implementation of this Act was slow. It was later amended and replaced in 2002 by the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act without ever having been properly implemented. The commercial sexual exploitation of children is the exploitation by an adult with respect to a child or an adolescent female or male under 18 years old; accompanied by a payment in money or in kind to the child or adolescent (male or female) or to one or more third parties. Sexual exploitation in children includes all of the following: The use of girls and boys in sexual activities remunerated in cash or in kind (commonly known as child prostitution) in the streets or indoors, in such places as brothels, discotheques The commercial, massage parlours, bars, hotels, restaurants, etc. The trafficking of girls and boys and adolescents for the sex trade. Child sex tourism. The production, promotion and distribution of pornography involving children. The use of children in sex shows (public or private.) The term child labour is often defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. Human Rights and Media Unit 6 Sikkim Manipal University Page No. 294 It refers to work that: Is mentally, physically, socially or morally dangerous and harmful to children interferes with their schooling by: depriving them of the opportunity to attend school obliging them to leave school prematurely requiring them to attempt to combine school attendance with excessively long and heavy work. The Immoral Traffic (Prevention) Act passed in the year 1987. Under the act detention of a woman for purposes of prostitution is punishable with a minimum of seven years of imprisonment and maximum of life imprisonment. India is home to millions of indigent children. Many of them all too often illiterate, sick, and malnourished live in neglect with wretched families who cannot take care of them The traditional Indian parenting is shaped by the cultural and religious values of the land, generational wisdom, and life experiences. According to UNICEF India over two million children die every year from preventable diseases. IMR in India is 63 deaths for every 1000 live births. 6.12 Glossary Juvenile: Relating to or characteristic of or appropriate for children or young people Illegitimate: Born of parents who are not married to each other Undernourished: Supplied with less than the minimum amount of the foods essential for sound health and growth Foeticide: Killing of a fetus; especially illegal abortion Abortion: Termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability Exploitation: Utilization of another person or group for selfish purposes Prostitution: Act or practice of providing sexual services to another person in return for payment Human Rights and Media Unit 6 Sikkim Manipal University Page No. 295 Devdasi: Religious tradition in which girls are married and dedicated to a deity (deva or devi) or to a temple Delinquent: Person who commits a misdemeanor 6.13 Terminal Questions 1. Do children have the same rights as adults, or are they different? Given their vulnerability, should they be given special rights? Discuss. 2. Is education for all, a promise yet to be fulfilled? 3. Will sex-selective abortion lead to reduced growth in population and an enhancement of the status of women in the society? 4. What is sexual exploitation of a child? According to the ILO what constitutes the commercial sexual exploitation of children? 5. Write a note on the devdasi system. 6. Discuss the advantages and disadvantages of traditional Indian parenting. 6.14 Answers Answers to Self Assessment Questions 1. (a) Gillick; (b) Reproductive and Child Health Programme 2. (a) True; (b) False 3. (a) Right to life; (b)Malnourishment 4. (a) False; (b)True 5. (a) Right to abortion; (b) Committee on the Elimination of Discrimination against Women 6. (a) False; (b) True 7. (a) Fourteen; (b) Industrial Revolution 8. (a) True; (b) False 9. (a) Children; (b) Prostitute 10. (a) True; (b) True 11. (a) Six; (b) Illegitimate Human Rights and Media Unit 6 Sikkim Manipal University Page No. 296 12. (a) True; (b) False 13. (a) India; (b) 2000 14. (a) False; (b)True 15. (a) Value-based; (b) Kerala 16. (a) True; (b) False Answers to Terminal Questions 1. Refer to Section 6.2 2. Refer to Section 6.2.2 3. Refer to Section 6.4 4. Refer to Section 6.5 5. Refer to Section 6.6 6. Refer to Section 6.10 6.15 Further Reading 1. Ensalaco, Mark, Linda C. Majka.Childrens human rights: progress and challenges for children worldwide.USA: Rowman and Littlefield Publishers, 2005. 2. Joseph, Rita. Human Rights and the Unborn Child. Netherlands: Martinus Nijhoff Publishers / Brill Academic, 2009. 3. Tiwari, R.K. Child and Human Rights. Delhi: Neeraj Publishing House, 2011 4. Gathia, Joseph Anthony. Child Prostitution in India. Delhi: Concept Publishing Company, 1999. 5. Patel, Tulsi. Sex-Selective Abortion in India. New Delhi: Sage Publications (India) Pvt. Ltd. 2007. References United Nations Convention on the Rights of the Child. Victory for Mrs Gillick is a tragedy for thousands of young people. Guardian, 30 th January 1985. Unit 7 Women and Human Rights Structure 7.1 Introduction Objectives 7.2 United Nations and Status of Women 7.3 Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW): 7.4 Setting the Global Gender Agenda 7.5 Offences, Violence and Crime Against Women 7.6 Dowry and Dowry Related Offences 7.7 Domestic Violence 7.8 Women Prisoners 7.9 Sexual Harassment at Work Places 7.10 The Beijing Declaration and Action Plan. 7.11 Summary 7.12 Glossary 7.13 Terminal Questions 7.14 Answers 7.15 Further Reading 7.1 Introduction The human rights movement has been influential in the recognition and protection of rights of people who have so far been languishing behind the veil of ignorance and have lived a life devoid of dignity and basic rights. Women represent one such section of the society. Womens struggle for basic human rights has a long history. The present and the preceding century, however, have witnessed betterment in the condition of women. A lot remains to be done to achieve the goals of cherished ideals that form the foundation of human rights movement and philosophy. It has been argued that human rights have not only expanded vertically to ensure the protection and promotion of human rights during the interaction of the State with people, but also expanded and developed horizontally by making human right the basis for good governance and interaction, even among the citizenry. The Preamble to the UN Charter begins by referring a faith in fundamental human rights, in the dignity and worth of the human persons, in the equal rights of men and women and of nations large and small. As per the Universal Human Rights and Media Unit 7 Sikkim Manipal University Page No. 298 Declaration of Human Rights, women along with men are entitled to all rights and the terms no one and everyone include both men and women. Article 2 of UDHR states that, Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status. As per Article 1 of the Declaration, all human beings are born free and equal in dignity and rights. Since the formation of the United Nations, it has been working towards the advancement of women. This is evident from the provisions of the UN Charter and the UDHR. The Preamble of the Charter of the United Nations aims at reaffirming faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women. Objectives After studying this unit, you should be able to: Explain the role of UN in the upliftment of women Examine the status of women in US and Scandinavian countries Describe the offences, violence and crime against women State the Beijing Declaration and Action Plan 7.2 United Nations and Status of Women The United Nations is consistently working towards the upliftment of women across the world. Since the establishment of the United Nations, many efforts have been made for this purpose. Some of the efforts are as follows: 1. Convention on the Political Rights of Women, 1953 2. Convention on the Nationality of Married Women, 1957 3. Declaration on Elimination of Discrimination Against Women, 1967 4. Convention on the Elimination of All Forms of Discrimination Against Women, 1979 5. Declaration on the Elimination of Violence Against Women, 1993 6. Optional Protocol to the Convention on the Elimination of Discrimination Against Women, 1999 These efforts are in addition to the various provisions of UDHR, ICCPR and ICESCR. The Preamble of the Universal Declaration of Human Rights Human Rights and Media Unit 7 Sikkim Manipal University Page No. 299 recognizes that the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Article 1 of the declaration says that All human beings are born free and equal in dignity and rights while Article 3 says Everyone has the right to life, liberty and security of person. Article 7 says: All are equal before the law and are entitled without any discrimination to equal protection of the law. Article 2 reads Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 3 of ICCPR reads The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. Article 23 of Convention recognizes The right of men and women of marriageable age to marry and to found a family shall be recognized. While Article 6 inter alia provides that Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. Article 3 of ICESCR recognizes the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Some provisions in the Convention on the Elimination of All Forms of Discrimination against Women, of significance in the present context are: Article 11: 1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. Article 24: States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention. The Convention on the Political Rights of Women, 1953 desires to implement the principle of equality of rights for men and women contained in the Charter of the UN. In 1949, the Commission on the status of women expressed the view that a convention on the nationality of married women should be prepared and it resulted in the Convention on the Nationality of Married Women, 1957. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 300 Declarations of 1967 and 1979 provide the provisions for the eliminations of all kinds of discriminations against the women and for the upliftment of the women in the society. The Declaration of 1993 provides for the elimination of violence against the women. It is the first international human rights instrument to exclusively deal with the issue of violence against women. It affirms that violence against women violates, impairs or nullifies womens human rights and their exercise of fundamental freedom. Among all these conventions the Convention on the Elimination of All Forms of Discrimination Against Women, (CEDAW) 1979 is the most important instrument. This Convention has an Optional Protocol of 1999. During 1970s, international feminist movement started gaining momentum. As a result of this movement, the General Assembly announced 1975 as the International Womens Year. They also organized the first World Conference on Women in Mexico City. Later, the conference also announced the years 1976- 1985 as the UN Decade for Women. In 1979, the General Assembly adopted CEDAW. We would study CEDAW in detail in the next section. The Second World Conference on Women took place in Copenhagen in 1980. The Programme of Action prepared in this conference called for stronger measures related to womens property, loss of nationality, inheritance and child custody. The World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace was organized in Nairobi in 1985. The Conference realized that objectives of the First Conference have not been met. As a result, 157 participating governments decided to adopt the Nairobi Forward-looking Strategies to the Year 2000. The Fourth World Conference on Women was held in Beijing in the year 1995. Beijing Declaration and Programme of Action has been discussed in detail in Section 7.10. Self-Assessment Questions 1. Fill in the blanks with appropriate words (a) The General Assembly of UN declared_______________ as the International Womens Year. (b) The Fi rst Worl d Conference on Women was hel d i n ________________. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 301 2. State whether the following statements are true or false. (a) Convention on the Nationality of Married Women took place in 1957. (b) The Second World Conference on Women was held in the United States of America. 7.3 Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) Since CEDAW, 1979 is the most important instrument among all conventions, let us study this convention in detail: 7.3.1 Objectives of CEDAW In order to ensure that the provisions of Articles 1, 2 and 55 of the Charter were accomplished, the Declaration on Elimination of Discrimination Against Women, 1967 was passed, which made certain that the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted in 1979. According to this convention, all men and women have equal economic, social, cultural, civil and political rights and State Parties to the International Covenants on Human Rights are obliged to ensure this. Earlier, women had no equal rights and no respect for their dignity. The CEDAW changed that. It was this bias against women that became a hurdle when it came to womens equal involvement in political, social, economic and cultural arenas in their respective countries. This inequality in fact hampers the development of any nation. It is true that women have great potential and can contribute to their nations and to the general well being of all men and women. With inequality humankind loses out on this large potential force. It is also seen that when it comes to conditions of destitution, it is the women who are the worst hit. They have little access to food, health, education, training and opportunities for employment. The setting up of a new international economic order that had at its foundation equality and justice would be a significant move in the right direction: that of ensuring equal rights to men and women. The holisitic development of a country, wellbeing of all men and women around the world, and the requirement of peace necessitate the equal involvement of women and men on similar terms and in all areas. Before any real equality between men and women could happen, there had to be a change in the conventional roles that women were expected to conform to and had grown to accept. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 302 Main objectives of the CEDAW: To increase awareness about womens human rights; ensure deeper understanding of CEDAW by Representative state institutions; and organized civil society groups (incomplete) To reinvigorate governments and civil society groups in their efforts to promote womens human rights under CEDAW, both at the national and regional levels; and To ensure that there was an effective political will and commitment towards CEDAW implementation 7.3.2 Overview of CEDAW The CEDAW, which was adopted by the UN General Assembly, is often heralded as the International Bill of Rights for Women. The document has a Preamble and 30 articles. In great detail it describes the factors that constitute discrimination against women. It also lists the items for action so as to put an end to this disparity between men and women. According to the CEDAW, discrimination against women is defined as ...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. All States that accept this are promising to take measures that will put a stop to discrimination against women. Some such measures are: Accepting the principle of equality of men and women in their legal systems; removing all discriminatory laws; replacing them with laws that prohibit discrimination against women Setting up tribunals and other public institutions that will make certain that women are protected against discrimination Ensuring that all acts of discrimination against women by persons, organizations or enterprises are removed According to the Convention women must have equal access to, and equal opportunities in political and public lifeincluding the right to vote and to stand for electionas well as education, health and employment. All nations that accept this convention agree to take temporary special measures and adopt legislations that will ensure this. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 303 Interestingly, the CEDAW is the sole human rights agreement that asserts reproductive rights of women and states that it is culture and tradition that shape gender roles and family relations. It gives women the rights to acquire, change or retain their nationality and the nationality of their children. All those nations that agreed to the Convention are now legally bound to make sure that they work towards making those provisions a reality. They will also submit national reports, at least every four years, and list all the actions they their countries have taken to meet their obligations to CEDAW. 7.3.3 Provisions of CEDAW (a) Preamble The Preamble states the following: Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women, Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex, Noting that the State Parties to the International Covenants on Human Rights have the obligation to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights, Considering the international conventions concluded under the auspices of the United Nations and the specialized agencies promoting equality of rights of men and women, Noting also the resolutions, declarations and recommendations adopted by the United Nations and the specialized agencies promoting equality of rights of men and women, Concerned, however, that despite these instruments extensive discrimination against women continues to exist, Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the Human Rights and Media Unit 7 Sikkim Manipal University Page No. 304 family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity, Concerned that in situations of poverty women have the least access to food, health, education, training and opportunities for employment and other needs, Convinced that the establishment of the new international economic order based on equity and justice will contribute significantly towards the promotion of equality between men and women, Emphasizing that the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-colonialism, aggression, foreign occupation and domination and interference in the internal affairs of State is essential to the full enjoyment of the rights of men and women, Affirming that the strengthening of international peace and security, the relaxation of international tension, mutual co-operation among all State irrespective of their social and economic systems, general and complete disarmament, in particular nuclear disarmament under strict and effective international control, the affirmation of the principles of justice, equality and mutual benefit in relations among countries and the realization of the right of peoples under alien and colonial domination and foreign occupation to self-determination and independence, as well as respect for national sovereignty and territorial integrity, will promote social progress and development and as a consequence will contribute to the attainment of full equality between men and women, Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields, Bearing in mind the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole, Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women, Determined to implement the principles set forth in the Declaration on the Elimination of Discrimination against Women and, for that purpose, to adopt the Human Rights and Media Unit 7 Sikkim Manipal University Page No. 305 measures required for the elimination of such discrimination in all its forms and manifestations. (b) Provision Defining the term Discrimination PART I Article 1 For the purposes of the present Convention, the term discrimination against women shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. (c) Provisions for Elimination of Discrimination: State Obligation State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 306 (d) Provision for Eliminating Discrimination in Political Rights Article 3 State Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Article 4 1. Adoption by State Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. 2. Adoption by State Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory. Article 5 State Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases. Article 6 State Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 307 PART II Article 7 State Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country. Article 8 State Parties shall take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations. (e) Provision for Equal Rights of Marriage Article 9 1. State Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. 2. State Parties shall grant women equal rights with men with respect to the nationality of their children. (f) Provision for Elimination of Discrimination in Education Part III Article 10 State Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: Human Rights and Media Unit 7 Sikkim Manipal University Page No. 308 (a) The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training; (b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality; (c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods; (d) The same opportunities to benefit from scholarships and other study grants; (e) The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particularly those aimed at reducing, at the earliest possible time, any gap in education existing between men and women; (f) The reduction of female student dropout rates and the organization of programmes for girls and women who have left school prematurely; (g) The same opportunities to participate actively in sports and physical education; (h) Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning. (g) Provision for Elimination of Discrimination in Employment Article 11 1. State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and Human Rights and Media Unit 7 Sikkim Manipal University Page No. 309 the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, State Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; (c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child- care facilities; (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them. 3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary. (h) Provision for Elimination of Discrimination in Healthcare Article 12 1. State Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 310 2. Notwithstanding the provisions of paragraph I of this article, State Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation. (i) Provision for Elimination of Discrimination in Other Areas Article 13 State Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to family benefits; (b) The right to bank loans, mortgages and other forms of financial credit; (c) The right to participate in recreational activities, sports and all aspects of cultural life. (j) State Measures for Elimination of Discrimination Article 14 1. State Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas. 2. State Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women that they participate in and benefit from rural development and, in particular, shall ensure to such women the right: (a) To participate in the elaboration and implementation of development planning at all levels; (b) To have access to adequate health care facilities, including information, United Nation counselling and services in family planning; (c) To benefit directly from social security programmes; (d) To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their technical proficiency; Human Rights and Media Unit 7 Sikkim Manipal University Page No. 311 (e) To organize self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self employment; (f) To participate in all community activities; (g) To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes; (h) To enjoy adequate living conditions, particularly in relation to housing, sani tati on, el ectri ci ty and water suppl y, transport and communications. Part IV Article 15 1. State Parties shall accord to women equality with men before the law. 2. State Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals. 3. State Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void. 4. State Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile. Article 16 1. State Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; Human Rights and Media Unit 7 Sikkim Manipal University Page No. 312 (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. 2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory. (k) Provision for Committee on the Elimination of Discrimination Against Women Part V Article 17 1. For the purpose of considering the progress made in the implementation of the present Convention, there shall be established a Committee on the Elimination of Discrimination against Women (hereinafter referred to as the Committee) consisting, at the time of entry into force of the Convention, of eighteen and, after ratification of or accession to the Convention by the thirty-fifth State Party, of twenty-three experts of high moral standing and competence in the field covered by the Convention. The experts shall be elected by State Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as the principal legal systems. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 313 2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by State Parties. Each State Party may nominate one person from among its own nationals. 3. The initial election shall be held six months after the date of the entry into force of the present Convention. At least three months before the date of each election the Secretary-General of the United Nations shall address a letter to the State Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the State Parties which have nominated them, and shall submit it to the State Parties. 4. Elections of the members of the Committee shall be held at a meeting of State Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the State Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of State Parties present and voting. 5. The members of the Committee shall be elected for a term of four years. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these nine members shall be chosen by lot by the Chairman of the Committee. 6. The election of the five additional members of the Committee shall be held in accordance with the provisions of paragraphs 2, 3 and 4 of this article, following the thirty-fifth ratification or accession. The terms of two of the additional members elected on this occasion shall expire at the end of two years, the names of these two members having been chosen by lot by the Chairman of the Committee. 7. For the filling of casual vacancies, the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee. 8. The members of the Committee shall, with the approval of the General Assembly, receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide, having regard to the importance of the Committees responsibilities. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 314 9. The Secretary-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 Convention. Article 18 1. State Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect: (a) Within one year after the entry into force for the State concerned; (b) Thereafter at least every four years and further whenever the Committee so requests. 2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention. Article 19 1. The Committee shall adopt its own rules of procedure. 2. The Committee shall elect its officers for a term of two years. Article 20 1. The Committee shall normally meet for a period of not more than two weeks annually in order to consider the reports submitted in accordance with article 18 of the present Convention. 2. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. Article 21 1. The Committee shall, through the Economic and Social Council, report annually to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of reports and information received from the State Parties. Such suggestions and general recommendations shall be included in the report of the Committee together with comments, if any, from State Parties. 2. The Secretary-General of the United Nations shall transmit the reports of the Committee to the Commission on the Status of Women for its information. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 315 (l) Provision for Agency Article 22 The specialized agencies shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their activities. The Committee may invite the specialized agencies to submit reports on the implementation of the Convention in areas falling within the scope of their activities. (m) Saving and Concluding Provision PART VI Article 23 Nothing in the present Convention shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained: (a) In the legislation of a State Party; or (b) In any other international convention, treaty or agreement in force for that State. Article 24 State Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention. Article 25 1. The present Convention shall be open for signature by all State. 2. The Secretary-General of the United Nations is designated as the depositary of the present Convention. 3. The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. 4. The present Convention shall be open to accession by all State. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. Article 26 1. A request for the revision of the present Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 316 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request. Article 27 1. The present Convention shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession. 2. For each State ratifying the present Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession. Article 28 1. The Secretary-General of the United Nations shall receive and circulate to all State the text of reservations made by State at the time of ratification or accession. 2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted. 3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General of the United Nations, who shall then inform all State thereof. Such notification shall take effect on the date on which it is received. Article 29 1. Any dispute between two or more State Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court. 2. Each State Party may at the time of signature or ratification of the present Convention or accession thereto declare that it does not consider itself bound by paragraph I of this article. The other State Parties shall not be bound by that paragraph with respect to any State Party which has made such a reservation. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 317 3. Any State Party which has made a reservation in accordance with paragraph 2 of this article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations. Article 30 The present Convention, the Arabic, Chinese, English, French, Russian and Spanish texts of which are equally authentic, shall be deposited with the Secretary-General of the United Nations. 7.3.4 Optional Protocol to CEDAW (a) Introduction On 6 October 1999, the General Assembly adopted a 21 Article Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women. It urged all State Parties to the Convention to join the new instrument. This protocol was ground-breaking in the sense that it was adopted without a vote. When a country agrees to the Optional Protocol, it is accepting the competence of the Committee on the Elimination of Discrimination against Women. This committee supervises the workings of the State Parties in order to make certain that the latter are complying with the Convention i.e. receiving and considering complaints from individuals or groups within its jurisdiction. There are two procedures in the Protocol: (i) The communications procedure is one that permits individual women, or groups of women, to bring to the notice of officials all the violations of rights carried out against them that are otherwise protected under the Convention to the Committee. However, according to the Protocol individual complaints will be accepted by the Committee only after certain criteria have been met, one of which is that it could not be resolved domestically. (ii) Under the inquiry procedure the Committee has the right to investigate situations of grave or systematic violations of womens rights. The State is a member of the Convention and the Protocol. Under the Protocol is an opt-out clause, under which the State can go ahead and declare that it does not accept the inquiry procedure. Article 17 of the Protocol provides that no reservations may be entered to its terms. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 318 On 22 December 2000 the convention accepted the Optional Protocol. This was after the ratification of the tenth State into the Convention. The Optional Protocol allows the CEDAW to be on similar grounds as the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. All these conventions have communications procedures. The inquiry procedure corresponds to the Convention against Torture. (b) Objectives of Optional Protocol There is no stipulation for an individual complaint system in the CEDAW. It was in a bid to cover this shortcoming that the Optional Protocol came into being. The Protocol says in Article 2 that an individual or a group of individuals can convey this to the Committee. However such communication must be in writing and not anonymous. The Committee in turn must do its own homework to ensure that the complaint has reached it only after all domestic recourses have been exhausted. The Committee can start a confidential investigation when it is convinced of grave or systematic violations by a State Party of rights as enumerated in the Convention. Under the protocol those who have been discriminated against or have suffered other abuses can communicate with the Committee. (c) Preamble The preamble is the introductory part of the Protocol which sets out the object and purpose of the Protocol. It refers to the principles of equality and non- discrimination as embodied in the UN Charter, the Universal Declaration of Human Rights, and other international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination against Women. It reaffirms the determination of State Parties which adopt the protocol to ensure the full and equal enjoyment by women of all human rights and fundamental freedoms and to take effective action to prevent violations of these rights and freedoms. The words of the Preamble are as follows: The State Parties to the present Protocol, Encouraged by the overwhelming support for the Convention on the Rights of the Child, demonstrating the widespread commitment that exists to strive for the promotion and protection of the rights of the child, Reaffirming that the rights of children require special protection, and calling for continuous improvement of the situation of children without distinction, Human Rights and Media Unit 7 Sikkim Manipal University Page No. 319 as well as for their development and education in conditions of peace and security, Disturbed by the harmful and widespread impact of armed conflict on children and the long-term consequences it has for durable peace, security and development, Condemning the targeting of children in situations of armed conflict and direct attacks on objects protected under international law, including places that generally have a significant presence of children, such as schools and hospitals, Noting the adoption of the Rome Statute of the International Criminal Court, in particular, the inclusion therein as a war crime, of conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities in both international and non-international armed conflict, Considering therefore that to strengthen further the implementation of rights recognized in the Convention on the Rights of the Child there is a need to increase the protection of children from involvement in armed conflict, Noting that article 1 of the Convention on the Rights of the Child specifies that, for the purposes of that Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier, Convinced that an optional protocol to the Convention that raises the age of possible recruitment of persons into armed forces and their participation in hostilities will contribute effectively to the implementation of the principle that the best interests of the child are to be a primary consideration in all actions concerning children, Noting that the twenty-sixth International Conference of the Red Cross and Red Crescent in December 1995 recommended, inter alia, that parties to conflict take every feasible step to ensure that children below the age of 18 years do not take part in hostilities, Welcoming the unanimous adoption, in June 1999, of International Labour Organization Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, which prohibits, inter alia, forced or compulsory recruitment of children for use in armed conflict, Condemning with the gravest concern the recruitment, training and use within and across national borders of children in hostilities by armed groups Human Rights and Media Unit 7 Sikkim Manipal University Page No. 320 distinct from the armed forces of a State, and recognizing the responsibility of those who recruit, train and use children in this regard, Recalling the obligation of each party to an armed conflict to abide by the provisions of international humanitarian law, Stressing that the present Protocol is without prejudice to the purposes and principles contained in the Charter of the United Nations, including Article 51, and relevant norms of humanitarian law, Bearing in mind that conditions of peace and security based on full respect of the purposes and principles contained in the Charter and observance of applicable human rights instruments are indispensable for the full protection of children, in particular during armed conflict and foreign occupation, Recognizing the special needs of those children who are particularly vulnerable to recruitment or use in hostilities contrary to the present Protocol owing to their economic or social status or gender, Mindful of the necessity of taking into consideration the economic, social and political root causes of the involvement of children in armed conflict, Convinced of the need to strengthen international cooperation in the implementation of the present Protocol, as well as the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict, Encouraging the participation of the community and, in particular, children and child victims in the dissemination of informational and educational programmes concerning the implementation of the Protocol. (d) Provisions of Optional Protocol Establishes that States who become parties to the optional protocol recognize the competence of the Committee to receive and consider communications under the protocol. Article 2 Provides a Communications Procedure which allows either individuals or groups of individuals to submit individual complaints to the Committee. Communications may also be submitted on behalf of individuals or groups of individuals, with their consent, unless it can be shown why that consent was not received. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 321 Article 3 Establishes that a communication will only be considered by the Committee if it concerns a country that has become party to the protocol. In addition, a communication must be submitted in writing and may not be anonymous. Article 4 Stipulates admissibility criteria of communications. Before a complaint is considered, the Committee must determine that all available domestic remedies have been exhausted and the complaint is not, nor has been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement. In addition, a complaint will only be admissible provided the complaint is compatible with the provisions of the Convention; is not an abuse of the right to submit a communication; the claimants allegations can be substantiated, and the facts presented occurred after the State party ratified the Protocol. Article 5 After receipt of a communication and prior to its final decision, the Committee has the option of contacting the State Party with an urgent request that the State Party take steps to protect the alleged victim or victims from irreparable harm. Article 6 Establishes the communications procedure. Where a communication has been found admissible, the Committee will confidentially bring a communication to the attention of the State Party, provided the complaint has consented to disclosure of their identity to the State Party. The State Party is given six months to provide a written explanation or statement to the complaint. Article 7 Outlines the process of complaint consideration. The Committee will examine and consider all information provided by a complaint in closed meetings. The Committees views and recommendations will be transmitted to the parties concerned. The State Party has six months to consider the views of the Committee and provide a written response, including remedial steps taken. The Committee may request further information from the State Party, including in subsequent reports. Article 8 Establishes an inquiry procedure that allows the Committee to initiate a confidential investigation by one or more of its members where it has received Human Rights and Media Unit 7 Sikkim Manipal University Page No. 322 reliable information of grave or systematic violations by a State Party of rights established in the Convention. Where warranted and with the consent of the State Party, the Committee may visit the territory of the State Party. Any findings, comments or recommendations will be transmitted to the State Party concerned, to which it may respond within six months. Article 9 Establishes a follow-up procedure for the Committee. After the six-month period referred to in article 8, the State Party may be invited to provide the Committee with details of any remedial efforts taken following an inquiry. Details may also be provided in the State Party report to the Committee under article 18 of the Convention. Article 10 Provides an opt-out clause. At ratification of the Optional Protocol, a State Party has the option of refusing to recognize the competence of the Committee to initiate and conduct an inquiry as established under articles 8 and 9. However, this declaration may be withdrawn at a later time. Article 11 Requires a State Party to ensure the protection of those submitting communications. Article 12 A summary of the Committees activities relating to the Protocol will be included under article 21 of the Convention. Article 13 Establishes a requirement that State Parties widely publicize the Convention and its Protocol and provide access to the views and recommendations of the Committee. Article 14 Requires the Committee to develop its own rules of procedure when dealing with communications and inquiries considered in accordance with the Optional Protocol. Article 15 Governs eligibility for State to sign, ratify or accede to the Protocol. Any State Party that is party to the Convention may become party to the Protocol. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 323 Article 16 Establishes that a minimum of ten countries must have ratified or acceded to the Protocol before the Protocol enters into force. The Protocol will enter into force three months after the 10th ratification or accession. Article 17 Provides that there shall be no reservations to the Protocol. Article 18 Establishes procedures for amending the Protocol. Any State Party may suggest amendments to be sent to the Secretary-General of the United Nations to be communicated to all State Parties to the Protocol. If requested by a minimum of one-third of State Parties, a conference may be convened to discuss and vote on any amendments. With the support of a two-thirds majority and the General Assembly, an amendment comes into force and is binding on State that have accepted the amendments. Article 19 Provides for a State Party to withdraw from the Protocol by written notification to the Secretary-General. Withdrawal will not impact any communications submitted prior to the effective date of withdrawal. Article 20 State that the Secretary-General of the United Nations shall inform State of signatures, ratifications and accessions, the date the Protocol comes into force and any amendments and withdrawals. Article 21 Provides that the Protocol will be deposited in the United Nations archives, made available in Arabic, Chinese, English, French, Russian and Spanish and sent to all State Parties by the Secretary General. 7.3.5 Implementation Procedure: Committee Article 17 affords the setting up of a Committee on the Elimination of Discrimination Against Women. The committee would be tasked with evaluating whether provisions of the Convention are being met or not. The Committee was set up in 1981 when the CEDAW came into force. The Committee meets only for two weeks in a year. The State Parties report routinely to the Committee about the progress they have made in legislative, judicial, administrative areas or any innovative measure of their own so as to remove discrimination against women in their societies. The Convention is implemented through the State Human Rights and Media Unit 7 Sikkim Manipal University Page No. 324 Parties report. The Committees annual report is shown to the General Assembly through the ECOSOC, which gives its own recommendations on the basis of State Parties reports. 7.3.6 Inquiry Procedure An inquiry procedure and complaints procedure comprise the optional protocol. Through the inquiry procedure the Committee can make inquiries into cases of monstrous abuses of womens human rights in member countries of the Optional Protocol. It is patterned on Article 20 of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The inquiry procedure is tasked to perform the following functions: Allow experts from the global arena to examine cases of abuses of womens human rights Step in when individual correspondence is not able to showcase the true nature and extent of extensive violations of womens rights Step in when it is not possible for individuals or groups to report on widespread violations of womens human rights. These inabilities could be due to practical reasons or fear of reprisals Give recommendations on the structural causes of violations Address issues of human rights violations in a particular country 7.3.7 The Reporting Procedure After becoming a member of the Committee the State Parties must give a report of their achievements within one year. Thereafter, they are required to submit their report every four years or whenever the Committee demands. The reports should be so structured that they list the steps taken that go some distance ino meeting the aspirations of the CEDAW. On receiving the report the Committee sits down to study these reports with Government representatives and see what more the country can do in this field of human rights. 7.3.8 Communication Procedure (a) Interstate Communication Procedure Article 29 of CEDAW states that two or more State parties may come together to refer disputes regarding interpretation and implementation of CEDAW for arbitration. If they are still dissatisfied, they can take it up with the International Court of Justice. So far this has not happened and it has many reservations. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 325 (b) CSW Communications Procedure The CSW can get confidential and non-confidential communications about discrimination against women. This information can be used for policy-making in the CSW. However it is not related to the legal framework of CEDAW. It does not step in to help individual cases or urgent situations where women are suffering continued violations. (c) Other Communication Procedures Besides the first Optional Protocol to the CEDAW, women can use existing procedures for redressal of complaints regarding violations of their rights. Some of the existing procedures are listed below: The Convention on the Elimination of All Forms of Racial Discrimination (Article 14) The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (communications procedure - Article 22) The 1503 Procedure of the Commission of Human Rights. First Optional Protocol to ICCPR 7.3.9 Special Rapporteur on Violence Against Women It was in 1994 that a Special Rapporteur was appointed by Resolution 1994/45 of the Commission on Human Rights. Resolution 1997/44 of the Commission gave the Special Rapporteurs mandate a fresh lease of life. . Besides the fact that the Special Rapporteur has the powers to study general issues of violence against women, the office can seek information from governments concerning specific cases of alleged violence. 7.3.10 Importance to the First Optional Protocol to CEDAW The First Optional Protocol to CEDAW has the following functions: Expand State and individuals understanding of CEDAW To Encourage States to implement CEDAW Bring about changes in discriminatory laws and practices Enhance existing apparatus to ensure that human rights are made available to everyone Initiate greater public awareness of human rights standards vis a vis discrimination against women Human Rights and Media Unit 7 Sikkim Manipal University Page No. 326 7.3.11 India and CEDAW Article 14 of the Constitution of India promises equal status to women Even as women have the right to equality in India, extra protection is given to them. For example, Article 15 (3) offers the State the power to make special provisions for women. In the past certain rules and regulations have been declared unconstitutional by our judicial bodies that have made their judgements on the basis of the constitutional provisions. One example is the C.B. Muthamma v. Union of India AIR 1979 SC 1868 case. In Vishaka and Others v. State of Rajasthan, AIR 1997 SC 3011 the Supreme Court declared that international documents relating to human rights must be considered. On 9 July 1993 India ratified the CEDAW. With this, the country is compelled to abide by the obligations as stated by the Convention. In Madhu Kishwar v. State of Bihar, AIR 1996 SC 2178 case the Supreme Court declared that the CEDAW was a part of the Fundamental Rights and Directive Principles as provided in the Indian Constitution. Self-Assessment Questions 3. Fill in the blanks with appropriate words (a) Declaration on Elimination of Discrimination Against Women, 1967 led to the adoption of the _______________________, 1979. (b) The Optional Protocol entered into force on ______________following the ratification of the tenth State party to the CEDAW. 4. State whether the following statements are true or false. (a) Committee on the Elimination of Discrimination Against Women meets thrice a year. (b) The optional protocol includes an inquiry procedure as well as a complaints procedure. 7.4 Setting the Global Gender Agenda Various world bodies have defined gender equality in terms of human rights. According to UNICEF gender equality is leveling the playing field for girls and women by ensuring that all children have equal opportunity to develop their talents. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 327 The United Nations Millennium Project says, Every single Goal is directly related to womens rights, and societies where women are not afforded equal rights as men can never achieve development in a sustainable manner. The Suffragette Movement of the late nineteenth century led to the movement towards gender equality especially in western countries. After this, a number of changes were introduced in laws. Adopting affirmative action policies also resulted in a number of changes. Many countries started accepting women in police force and armed forces. Now, women are working in large numbers even after marriage and child rearing is not considered exclusively a womans domain. The objectives of gender equality have not been met completely especially in non-western countries. However, various efforts have been made for promoting gender equality. For instance, the European Union opened the European Institute for Gender Equality (EIGE) in 2010 in Vilnius, Lithuania. The objective of this institute is to promote gender equality and to fight sex discrimination. In India, the Constitution of India under Article 15(3) and 16(4) aims at upliftment of the women in the country by providing reservation to women in education and in service. The Status of Women in US and Scandinavian Countries In March 2011, in US, the Office of Management and Budget and the Economics and Statistics Administration within the Department of Commerce together created a report named Women in America. This report shows how the life of women is changing in US. The report shows that the achievements of women in educational field have been better than those of men as women are getting better grades than men. The health condition of women is also better than men. Their life expectancy rate has increased and they are less likely to suffer from heart diseases. As far as workforce is concerned, there was increase in women workforce in mid 1990s but it has been almost constant since then. Most of the women are working in part-time jobs and they are spending most of their time in household activities. They also do more unpaid volunteer work than men. In case of Scandinavian countries, women have been given independent legal status and political rights. However, the main reason behind these rights is their roles as mothers so that they can take part in nation-building by upbringing children. The exhibit 7.1 also indicates the status of women in US and Scandinavian countries. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 328 Exhibit 7.1 The Worlds Best Countries for Women 8 March 2010, By Nancy Folbre, The New York TimesIn 1995, the United Nations Human Development report introduced two measures designed to facilitate cross-country comparisons of the status of women. One, the Gender- Related Development Index (G.D.I.) takes as its starting point a Human Development Index based on life expectancy at birth, enrollment in schools, adult literacy and per capita gross domestic product. The G.D.I. takes both absolute and relative levels of these factors into account, penalizing countries with a high disparity between mens and womens achievements. In 2007, the latest year for which data is currently available, the United States ranked 13th on the Human Development Index and 19th on the Gender-Related Development Index. Norway took first place on the H.D.I., but only second on the G.D.I. (Australia took the gold in G.D.I. rankings.) A second United Nations measure, the Gender Empowerment Measure (G.E.M.) focuses more narrowly on relative levels of political participation and decision-making power, economic participation and earnings. The economic component, however, is influenced by absolute levels of income. As a result, low-income countries rank low. Sweden took top prize in 2007, with the United States in 18th place. The organization Social Watch publishes a Gender Equity Index (G.E.I.) that combines elements similar to both the G.D.I. and the G.E.M., but relies entirely on relative measures, using a score of 100 to indicate perfect equality. This measure puts some less-developed countries (such as Rwanda) in the top category along with Scandinavian countries, with a score over 80; the United States has a score below 65. The World Economic Forum published a Gender Gap Index (G.G.I.) in 2007 that combines quantitative measures with some qualitative measures based on a survey of 9,000 business leaders in 104 countries. They put the United States in 31st place. Despite these differences, a clear pattern emerges. Scandinavian countries that have made gender equality an explicit goal and implemented policies such as universal child care and paid family leaves almost always land on the top of the list. The United States lags far behind. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 329 Efforts to look more specifically at developing countries show that several countries in Latin America, like Paraguay, stand out in terms of their efforts to reform family law and promote agrarian reforms that give women access to land ownership. On the other hand, many countries in Africa and the Middle East enforce laws that explicitly restrict womens rights. None of the indexes described above provide a complete picture. Its easier to measure rights and achievements than obligations and commitments. Consider for instance, differences in financial responsibility for the care of dependents which are quite substantial in many countries like the United States, where single mothers are raising a large proportion of all children. As women gain more economic independence, they may lose some financial support from the fathers of their children. Nor do any existing indexes measure differences between women and men in the amount of time devoted to unpaid household work or family care, or resulting differences in leisure time. As national statistical agencies begin publishing data on these dimensions of living standards, researchers can move toward the development of expanded indexes. Adapted from: http://www.womenscolleges.org/story/worlds-best-countries-for-women Accessed on 23 December 2011 Self-Assessment Questions 5. Fill in the blanks with appropriate words (a) The Suffragette Movement of the late nineteenth century led to the movement towards _____________ especially in western countries. (b) The objectives of gender equality have not been met completely in ______________ countries. 6. State whether the following statements are true or false. (a) The report Women in America shows that the achievements of women in educational field are negligible as compared to men. (b) In Scandinavian countries, women have been given independent legal status and political rights mainly for their roles as mothers. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 330 7.5 Offences, Violence and Crime Against Women Gender Since time immemorial inequality between men and women has raged in India. This form of discrimination has ensured that half of our population has not been given the chance to grow and realize its full potential or even to be able to live a life of dignity and well being. Violence against women continues to plague our society and is a mark of dishonor for our country. This violence rears its ugly head in various forms such as female foeticide, infanticide, demands for dowry, sexual harassment at workplace, domestic violence, etc. The National Crime Records Bureau has also reflected upon the increasing crime against women. Let us discuss some evil practices against women in India: Female foeticide The discrimination against women and the preference for sons has given rise to female foeticide in India. With advancements in science and technology, techniques have evolved to know the sex of the foetus. Female foeticide has definitely distorted the sex ratios in India. Sex selective abortions are on increase in India in rural as well as urban areas. Various techniques pertaining to sex- determination have developed over the years. Techniques such as fonography, fetoscopy, needling, Chorionic villus biopsy, and the most popular one, amniocentesis are increasingly becoming household names in India (Ravindra, 1986 quoted in Vibhuti Patel 1996). Factors such as poverty and dowry play an important role in peoples preference for a male child. Female infanticide Female infanticide is an act of killing girl child. It is a deliberate and intentional act of killing a female child within one year of its birth either directly by using poisonous chemicals or indirectly by not feeding the infant. Infanticide is killing of an entirely dependent child under one year of ageby mother, parents or others in whose care the child is entrusted (Koloor, 1990). Such practices are deeply rooted in the socio-cultural milieu of Indian society. Many systems prevalent in India like dowry, social customs, low position of women have all contributed to give rise to such inhuman practices against the girl child. Desai (1988) reported that female infanticide was so widespread in Jadeja (Rajput) families of Kutch and Saurashtra that only five such families were found who had not killed their new-born daughters. Prevalence of female infanticide in post-independence period was reported from Madurai district of Tamil Nadu, Bihar, Rajasthan, Orissa and Maharashtra. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 331 According to Crime in India (2000), foeticide cases reported an increase by 49.2 per cent over previous year and infanticide cases have increased by 19.5 per cent. Rape The word rape originates from the Latin verb rapere, which means to seize or take by force. The United Nations defines rape as sexual intercourse without valid consent. To lodge a complaint against rapist, consent of the victim may not necessarily be expressed and it can be implied from the context. The absence of objection does not mean consent as per the law. A number of reforms have been made in the law related to rape due to the protests by various organizations, legal community and public at large. Marital rape is also recognized as a kind of rape. It is non-consensual sex in which the victims spouse is the perpetrator. Earlier, it was assumed that partner would consent to intercourse, thus, marital rape was not included in the law. However, many countries now recognize marital rape as a crime. Rape is defined under Section 375 of Indian Penal Code 1983 as an unlawful and illegitimate sexual intercourse forced by a man on a woman without her consent. However, this law does not include sex which is forced onto a woman by her husband. Also, according to this section, a husband cannot be charged with rape if he has sexual intercourse with his wife, even if it is forced, in case she is over 15 years of age. According to section 376, whosoever commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine According to section 376A Whoever has sexual intercourse with his wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Rape by a woman is not recognized in the Indian law. A woman cannot be said to have an intent to commit rape and thus a woman cannot be held guilty of committing rape. Sexual harassment at workplaces, dowry related offences and domestic violence would be discussed in further sections. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 332 Exhibit 7.2 Mobile application for women to fight sexual assault launched A smartphone application to help women fight sexual assault was launched on 21 December 2011 in New Delhi. The Fight Back application created by Indian non-profit Whypoll will enable the user in alerting her friends or family at the press of a single key. An SOS message via text message, email and Facebook is delivered and once the SOS is activated, the recipients are able to track the senders location via GPS and come to her aid. Sexual assault cases against women are on a rise in New Delhi. The city now tops the list of Indias most unsafe cities for women, with 489 reported rape cases in 2010, up from 459 in 2009, according to police statistics. The Fight Back app is priced at Rs.100 for a year. The application is currently available only in English but it will be soon offered in various other Indian languages also. It will also reach nine more cities by the end of 2012. Adapted from: http://indiatoday.intoday.in/story/mobile-application-fight-back-women- sexual-assault/1/165251.html Accessed on 23 December 2011 Activity 1 Collect some newspaper clippings related to offences against women. Self-Assessment Questions 7. Fill in the blanks with appropriate words (a) The word rape has been derived from the Latin verb ______which means to seize. (b) Rape is defined under Section__________ of Indian Penal Code 1983 as an unlawful and illegitimate sexual intercourse forced by a man on a woman without her consent. 8. State whether the following statements are true or false. (a) Until 1991, in England, nonconsensual intercourse between man and wife was not unlawful. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 333 (b) Under IPC, marital rape is punishable only when the wife is between 10-15 years of age or if the rape is committed on the wife who is judicially separated. 7.6 Dowry and Dowry Related Offences The evils of dowry have acquired menacing proportions in the social system of India across caste, creed and religion. What really started from the noble gesture of the parents willingly imparting a reasonable sum of money to their daughters at the time of marriage mainly to assist her to start a new life has today acquired horrifying and demeaning dimensions, leading often to murders or physical or mental torture to newly married girls. In many traditional societies, some transfer of money, goods and services accompany the initiation of marriage. When these transfers are made from brides and their families to groom and their families, they are broadly classified as dowries. A transfer in the opposite direction, from grooms and their families to brides and their families, commonly found in polygamous societies with well-defined property rights is generally called a bride- price (Bergstrom, 1993). Both dowry and bride-price have a patterned distribution worldwide. Tambiah defines dowry as Wealth given to a daughter at her marriage for the couple to use as the nucleus of their conjugal estate, by and large we can say that dowry in India and Ceylon (Sri Lanka) the notion of female property (Streedhanam) which technically is her property and in her own control though the husband usually has rights of management (Kumari, 1982). Dowry Prohibition Act In the Dowry Prohibition Act, dowry includes any property or valuables given or agreed to be given directly or indirectly (1) by one party to a marriage to the other party to the marriage, or (2) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before or after the marriage. The definition in law does not include any presents made at the time of marriage to either party to the marriage in the form of cash or other consumer items. Nor does it include the womans exclusive owned property. With only very rare exceptions, a womans dowry consists only of movable property (jewellery, gold or silver, consumer items, etc.) and not land or buildings (immovable property). Inheritance of property is not legally forbidden for women, but it rarely occurs due to social forces and Hindu tradition. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 334 The dowry system has always given rise to innumerable socio-economic problems having far reaching consequences. Of late, numerous incidents of bride-burning, harassment and physical torture of the young brides and various kinds of pressure tactics adopted by husbands/in-laws pressurizing for more dowry have compelled the social reformers and the intelligentsia to give serious thought to the various aspects connected with the very institution of dowry (Sachdeva, 1998). Legislation by itself cannot normally solve the problem but it is necessary to exercise educative impact besides providing legal sanctions against this social evil. It is in this context the Dowry Prohibition Act 1961 was enacted and the Dowry Prohibition Amendment Act, 1984 was passed in order to make necessary improvements in the previous Act. It came into force on 2 October 1985 requiring that lists shall be maintained in writing and shall contain a brief description of each present, its approximate value, the name of the person who has given the present, and whether the person giving the present is related to the bride or bridegroom a description of such relationship, and shall be signed by both the bride and bridegroom (Sachdeva, 1998). The Dowry Prohibition Amendment Bill 1984 widens the scope for legal action while the 1961 Act stipulated that no court shall take cognisance of any such offence except on a complaint within one year, the amendment drops the time limit for making the complaint. Also it permits cognisance on the basis of knowledge, the court itself may have, or on the basis of police reports, or on complaint from parents, relatives or of a state recognized welfare institution or organization. However dowry offences continue to be non-cognizable except for purposes of investigation, and remain bailable and non-compoundable. However, just making acts is simply not enough. They must be implemented. Over the years there has been no let up in demands for , dowry even though it is an illegality and those who demand it can be tried in court. Studies show that dowry demands are in fact on the rise. Regrettably, the custom of dowry payments has spread geographically and socially throughout India into regions and communities in which it was never practiced before (Srinivas, 1980, Sharma, 1984, Paul 1985, Kumari 1989). Expectedly, the curse of dowry has many ramifications. The brides family is crushed in its efforts to cough up large amounts of money and goods which it can ill afford. This leads to further impoverishment of the family and hurts the future of unmarried girls who are increasingly seen as burdensome and as liabilities. The custom of dowry has many offshoots. Since couples do not want girl children it leads to the practice Human Rights and Media Unit 7 Sikkim Manipal University Page No. 335 of female infanticide. On the other hand, failure to meet the demands of the grooms family often paves the way to bride burning or deaths related to dowry. The National Crime Records Bureau of Government of India has given an alarming figure of 6,000 dowry deaths every year. Though several reasons are there for the prevalence of dowry system in India, the main one is that it is considered a necessary pre-condition for marriage. It is taken as a normative custom and dowry harassment has become a part of family life. However, in spite of the legal intervention the reality of Indian women, mainly form the middle and lower income groups has remained unchanged. many suggestions would include equal property rights for women, fixing a ceiling on marriage expenses and gifts as percentage of annual income as recommended by a Joint Parliamentary Committee in the early 1980s.Others would include encouragement of inter-caste and self-choice marriages, actions against advertisements and media programmes that promote son preference and including gender sensitization in school curricula form primary level. But all this is possible only when a political and economic dispensation seeks to radically alter the status of women by changing the present path of development-that glorifies profit by means and material possessions above human happiness to one that is in consonance with egalitarianism and gender justice is created by popular will. Unless people become progressive in their outlook, less orthodox in their ways and more revolutionary in their ideas dowry will remain the bane of our society. Activity 2 Collect the information of the cases in which judiciary took action against grooms family for dowry related offences. Self-Assessment Questions 9. Fill in the blanks with appropriate words (a) The National Crime Records Bureau of Government of India reports approximately _____________dowry deaths every year. (b) The Dowry Prohibition Act stipulated that no court shall take cognizance of any such offence except on a complaint within ____________. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 336 10. State whether the following statements are true or false. (a) The definition of dowry in law does not include immovable property. (b) Dowry Prohibition Amendment Act, 1984 came into force on 2 December 1985. 7.7 Domestic Violence Women are not safe even at their homes. Many women are subjected to domestic violence for various reasons. Earlier there was no specific law to deal with the instances of domestic violence but now Domestic Violence Act, 2005 has been passed by the Parliament to deal with domestic violence. Domestic Violence Act 2005 is the first significant attempt in India to recognize domestic abuse as a punishable offence. The provisions of this Act are extended to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse. Before this Act, the only option available for women was under Section 498A of Indian Penal Code. According to Section 3 of the Domestic Violence Act, 2005 domestic violence means and includes, Any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it (a) harms or injuries or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. According the Act, domestic violence could include any of the following: physical, sexual, emotional, verbal, psychological, and economic abuse or threats towards the same. The act is so stringent that even a single act of commission or omission can be referred to as domestic violence and victims can take recourse to the law as soon as the violence begins. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 337 7.7.1 Rights of the Women under the Act This Act has guaranteed certain rights to the women. These rights may be discussed as follows: 1. Right to reside in a shared household: Every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. The aggrieved person cannot be evicted or excluded from the shared household or any part of it by the respondent except in accordance with the procedure established by law. 2. On being satisfied that the domestic violence has taken place the Magistrate may direct the respondent to remove himself from the shared household. 3. The Magistrate may restrain the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; 4. The Magistrate can also restrain the respondent from alienating or disposing of the shared household or encumbering the same; 5. The aggrieved woman is also entitled to monetary relief including the (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force. 6. The aggrieved woman is also entitled to the custody of child or children. 7.7.2 Salient Features of the Domestic Violence Act, 2005 Domestic violence encompasses all forms of physical, sexual, verbal, emotional and economic abuse that can harm, injure, endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved women. An aggrieved person may not necessarily be the wife but also refers to a woman who is the sexual partner of the male, i.e. she may not be married to him. . In fact the Act covers all the women who reside in the same household as the man and are related to him. They could be his daughter, mother, sister, child (male or female), widowed relative. . Human Rights and Media Unit 7 Sikkim Manipal University Page No. 338 The Act defines a respondent as any male, adult person who is, or has been, in a domestic relationship with the aggrieved person so that his mother, sister and other relatives do not go scot-free. Relatives of the husband or male partner cannot escape the law and a case can be filed against them too. It is interesting to note that the Act allows that the report regarding the violence need not be lodged by the victim herself, but can be done by anyone who has reason to believe that such violence was occurring. The report thus can be lodged by any good soul who wants to see justice done be it a neighbour or a social worker or a relative, etc. Under the Act magistrates can ensure that the injured party is given monetary relief and that monthly payments of maintenance are provided. They can further see to it that the respondent bears the expenses that have been incurred and cover the losses suffered by the victim or her child/children due to domestic violence. The respondent will also be liable to make up for the loss of earnings, medical expenses, loss or damage to property and will provide maintenance to the victim and her children. Under the Act the magistrate can ask the respondent to pay compensation and damages for injuries such as mental torture and emotional distress that are a direct result of domestic violence. Within three days of a complaint being filed the court must start its proceedings and have the first hearing so that the injured party can get justice in the fastest possible timeframe. In fact the Act also lays down that the courts verdict must be given within sixty days of the first hearing. Any violation of the above-listed rights of the victim by the husband is deemed a punishable offence. Charges under Section 498A can be framed by the magistrate, in addition to the charges under this Act. Under the Act the offences are cognizable and non- bailable. The Act has stated that violations of the above-stated rights are reason for punishing the respondent with one years imprisonment and/or a maximum fine of `20,000. Self-Assessment Questions 11. Fill in the blanks with appropriate words (a) Domestic Violence Act 2005 is the first significant attempt in India to recognize ________________ as a punishable offence. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 339 (b) Every case filed under Domestic Violence Act must be disposed of within a period of ______________ of the first hearing. 12. State whether the following statements are true or false. (a) According to Section 3 of the Domestic Violence Act, 2005 domestic violence also includes economic abuse or threat. (b) Punishment for violation of the Domestic Violence Act, 2005 extend to imprisonment for two years. 7.8 Women Prisoners Women prisoners constitute a small minority and are often a neglected segment of population in terms of service provision. Some of the major problems faced by women prisoners are: separation from their families, mental and emotional health problems (including experiences of trauma), issues related to child care and pregnancy, and limited access to health care and other services. Health care is an issue in most of the womens prisons. The women in prisons come from the poorest sections of society and they come to prison with a range of untreated physical and mental health problems. In some countries, illicit drug use affects the majority of women prisoners and is the reason for their imprisonment. Drug counseling, mental health care, and programmes to help women prisoners deal with abuse and violence are needed. (Reforming Womens Prisons, ICPS, 2004). Custodial horror is a daily occurrence for women prisoners in India. What can women do when their custodians become their violators? There have been innumerable cases where men-in-khaki, as we usually refer to the police, have been caught outraging the women prisoners modesty inside and outside the jail. Worse, women prisoners in India are not just raped but they are even murdered by policemen. The state of Maharashtra has registered the highest number of custodial deaths i.e. 316, followed by Uttar Pradesh (255) and Gujarat (190) in the last 16 years. According to the National Human Rights Commission, there are 2318 cases of custody deaths across the country, all of which have been committed by policemen since October 1993. Women in India are hesitant even to lodge a complaint in cases when they have to go and file a complain in a police station. High Courts verdict on 26 August 1994, in Mathura rape case 1974 regarding the safety of women in custody had brought some relief to the people of the state. When the case Human Rights and Media Unit 7 Sikkim Manipal University Page No. 340 reached the Supreme Court, the apex court held that policemen should try to take a lady constable along while arresting women. However, if it seems reasonable they can go ahead without a lady constable to arrest women at any time of the day. This can be done by police when there is a delay in arresting or it is impractical to take a lady constable along. Moreover, the National Commission for Women has made some recommendations on the basis of reports of the All India Committee for Jail Reforms and the National Expert Committee on Women Prisoners including: 1. No woman should be arrested from sunset to sunrise. 2. Arresting should only take place in the presence of a lady constable. 3. There should be separate all-women police stations, separate lock-ups and jails for women. In Sheela Barse vs State of Maharashtra, the Supreme Court held that there should be separate detention places for women suspects. The apex court also held that their interrogation should only be carried out in the presence of lady police officers. Self-Assessment Questions 13. Fill in the blanks with appropriate words (a) The women in prisons come from the poorest sections of society and they come to prison with a range of untreated physical and mental _______________. (b) _____________ horror is a daily occurrence for women prisoners in India. 14. State whether the following statements are true or false. (a) In some countries, illicit drug use affects the majority of women prisoners and is the reason for their imprisonment. (b) As per the law, interrogation of women prisoners should only be carried out in the presence of lady police officers. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 341 7.9 Sexual Harassment at Work Places Work Places Sexual harassment may be defined as intimidation, bullying, or coercion that has a sexual suggetion, or unsuitable promise of rewards in exchange for sexual favours. 7.9.1 Sexual Harassment: Meaning Sexual harassment is one of the most threatening and scary forms of violence. The Supreme Court of India has defined sexual harassment in case of Vishaka v State of Rajasthan and others AIR, 1997 S.C 3011 as, such unwelcome sexually determined behaviour (whether directly or by implication) as physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; any other unwelcome physical, verbal or non verbal conduct of sexual nature. There are many ways in which sexual harassment can occur. These include acts of physical intimacy such as grabbing, brushing, touching, pinching, etc., or demanding sexual favours from another person, or making sexual favours a condition for employment/payment of wages/increment/promotion, etc. It also amounts to sexual harassment if a person makes inappropriate remarks that have with sexual suggestions, such as sexually explicit compliments or jokes or sexist remarks, etc., or showing sexually explicit visual material, in the form of pictures or engaging in any conduct of a sexual nature, verbal or non-verbal, such as staring to make the other person feel uncomfortable, making offensive gestures, etc. If a supervisor demands sexual favours from a junior colleague and insists that the latters promotion, increment, salary or any benefits is subject to her agreeing to such malicious demands, it amounts to sexual harassment. Similarly when a senior colleague or boss inquires about an employees personal life, which is not to the liking of the employee, or constantly asks her out, it amounts to sexual harassment. Sexual harassment can be said to take place when a group of workers pass snide comments or joke about sexual conduct in an attempt to humiliate or embarrass a fellow colleague. 7.9.2 Types of Sexual Harassment at Workplace There are two types of sexual harassment at the workplace: (1) quid pro quo, (2) hostile work environment. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 342 By Quid pro quo we mean that sexual favours are taken in lieu of work benefits. It can be further explained to mean that agreeing to sexually explicit behaviour or speech is made a stipulation for employment. On the other hand, a womans refusal to agree to such malicious requests can lead to her dismissal, demotion, or difficult working conditions. Of these three, Hostile working environment is the more common form of sexual harassment wherein the working conditions or behaviour that exists is such that the woman is terribly uncomfortable in such an environment. Passing sexist remarks, displaying pornography or sexist/obscene material, making physical contact/brushing against female employees are examples of hostile work environment. which are not made conditions for employment. One well-known case of sexual harassment is that of Rupan Deol Bajaj v. K. P.S.Gill 1995 SCC (6) 194. Rupan Deol Bajaj, an IAS officer, filed a case against then Chief of Police of Punjab, Mr K. P. S. Gill protesting that the latter had slapped her on the posterior at a dinner party in July 1988. In spite of senior officials advising her not to, Rupan Bajaj went ahead and filed a suit against him. The case came to rest in January 1998 when the Supreme Court asked Mr Gill to pay a fine of ` 2.5 lakh in lieu of three months of rigorous imprisonment under Sections 294 and 509 of the Indian Penal Code. In N. Radhabai v. D. Ramchandran, SC 1995 Radhabai, Secretary to D. Ramchandran, the then social minister for state, protested against the ministers abuse of girls in the welfare institutions. The minister attempted to molest Radhabai. Later she was dismissed from service. In its judgement, the Supreme Court in 1995 declared that she be reinstated, with back pay and perks from the date of dismissal. 7.9.3 Vishakha Guidelines The judgment in case of Vishaka v. State of Rajasthan and others AIR, 1997 S.C. 3011, has become an authority on the subject of sexual harassment. In this case the Supreme Court of India said that taking note of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces and that enactment of such legislation will take considerable time therefore it is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women. The court issued the following guidelines and norms: 1. Duty of the employer or other responsible persons in workplaces and other institutions: It shall be the duty of the employer or other Human Rights and Media Unit 7 Sikkim Manipal University Page No. 343 responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. 2. Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: (a) Physical contact and advances; (b) A demand or request for sexual favours; (c) Sexually coloured remarks; (d) Showing pornography; (e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victims employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. 3. Preventive steps: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation, they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways. (b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 344 (c) As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. (d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at workplaces and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment. 4. Criminal proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. 5. Disciplinary action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. 6. Complaint mechanism: Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employers organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. 7. Complaints committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 345 8. Workers initiative: Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings. 9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner. 10. Third party harassment: Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action. 11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector. 12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993. The Supreme Court directed that these guidelines and norms should be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. This court held these directions to be binding and enforceable in law until suitable legislation is enacted to occupy the field. As stated by the Supreme Court, these guidelines are applicable to (a) The employer or other responsible persons or other institutions to prevent sexual harassment and to provide procedures for the resolution of complaints; (b) Women who either draw a regular salary, receive an honorarium, or work in a voluntary capacity in the government, private or organized sector come under the purview of these guidelines. After Vishakhas case another case Apparel Export Promotion Council v A.K.Chopra AIR, 1999 S.C 625, came for consideration of the Supreme court in which the Supreme Court applied the law laid down in Vishakas case and upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council who was found guilty of sexual harassment of a subordinate female employee at the place of work on the ground that it violated her fundamental right guaranteed by Article21 of the Constitution. The Supreme Court observed, that In cases involving Human Rights, the Courts must be alive to the International Conventions and Instruments as far as possible to give effect to the principles contained therein- such as the Convention on the Eradication of All forms of Discrimination Against Women, 1979 [CEDAW] and the Beijing Declaration Human Rights and Media Unit 7 Sikkim Manipal University Page No. 346 directing all state parties to take appropriate measures to prevent such discrimination. 7.9.4 Law at Present As there is no specific piece of legislation for dealing with the cases of sexual harassment, the action is taken under some sections of Indian Penal Code. In cases where the accused sexually harasses or insults the modesty of a woman by way of either obscene acts or songs or by means of words, gesture, or acts intended to insult the modesty of a woman, he shall be punished under Sections 294, 354 and 509 of Indian Penal Code. Section 294 provides that, Whoever, to the annoyance of others,(a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. So under Section 294 the obscene act or song must cause annoyance. Though annoyance is an important ingredient of this offence, it being associated with the mental condition, has often to be inferred from proved facts. However, another important ingredient of this offence is that the obscene acts or songs must be committed or sung in or near any public place. Section 354, IPC deals with assault or criminal force to a woman with the intent to outrage her modesty and lays down that, whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or both. Section 509 provides that, Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, of that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. So Section 509 of IPC, comes into effect when there is an intention to insult the modesty of any woman by the offender by uttering any word, making any sound or gesture or by exhibiting any object, with the intention that such word or such sound be heard, or that such gesture or object be seen by such a woman, or by intruding upon the privacy of such a woman. Under the Indecent Representation of Women (Prohibition) Act (1987) action can be taken against a person for harassing a woman through indecent representation. Indecent representation of women means depiction in any manner of the figure of a woman, her form or body or any part thereof in such a Human Rights and Media Unit 7 Sikkim Manipal University Page No. 347 way as to have the effect of being indecent, or derogatory to, or denigrating, or is likely to deprave, corrupt or injure the public morality or morals. Even as the apex court has listed mandatory procedures known as Vishaka Guidelines, for prevention of sexual harassment and holding employers responsible for providing safe work environment for women, this malaise is still rampant. Vishaka Guidelines apply to both organized and unorganized work sectors and to all women who are working part time, on contract or in voluntary capacity. It is a broad framework emphasizing the prevention of sexual harassment and all appropriate preventive measures that must be taken. One significant preventive measure is to bring out a sexual harassment policy, which prohibits sexual harassment at the work place and provides effective grievance procedures. This allows for training the employees against this form of harassment. 7.9.5 Protection of Women against Sexual Harassment at Workplace Bill, 2010 The Union Cabinet has approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in Parliament. After the Bill will be passed in both the Houses of Parliament and will become an Act, the women employees in India will be able sue their colleagues for sexual abuse and harassment. The Bill seeks to ensure protection of women against sexual harassment at the workplace, both in public and private sectors whether organized or unorganized. This Bill enables women to complain against harassment ranging from physical contact, demand or requests for sexual favours, sexually coloured remarks or showing pornography. The Bill is applicable to all organized and unorganized sectors, and has a penalty provision for employers who do not comply. Implementation of the Bill will be the responsibility of the Central Government in case of its own undertakings/establishments and of the State Governments in respect of every workplace established, owned, controlled or wholly or substantially financed by it as well as of private sector establishments falling within their territory. Through this implementation mechanism, every employer will have a primary duty to implement the provisions of law within his/her establishment while the State and Central Governments have been made responsible for overseeing and ensuring overall implementation of the law. The Governments will also be responsible for maintaining data on the implementation of the law. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 348 Salient features Salient features of the Bill are as follows: (1) The Bill proposes a definition of sexual harassment, which is as laid down by the Honourable Supreme Court in Vishaka v State of Rajasthan (1997). Additionally it recognizes the promise or threat to a womans employment prospects or creation of hostile work environment as sexual harassment at workplace and expressly seeks to prohibit such acts. (2) The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganized sectors. (3) The Bill provides for an effective complaints and redressal mechanism. Under the proposed Bill, every employer is required to constitute an Internal Complaints Committee. The Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer. (4) Employers who fail to comply with the provisions of the proposed Bill will be punishable with a fine which may extend to ` 50,000. (5) Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she will be given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work. (6) The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee. (7) The Bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 349 The sections of the Indian Penal Code that can be applicable to sexual harassment (which makes it a criminal case): 1. Section 294 Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites and utters any obscene songs, ballads or words, in or near any public space, shall be punished with imprisonment of either description for a term that may extend to three months, or with fine, or with both. This provision is included in Chapter XVI entitled Of Offences Affecting Public Health, Safety, Convenience and Morals and is cognizable, bailable and triable by any magistrate. 2. Section 354 Whoever assaults or uses criminal force on any woman, intending to outrage her modesty or knowing it likely that he will thereby outrage her modesty, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both. 3. Section 509 (Word, gesture or act intended to insult the modesty of a woman) This is included in Chapter 22 entitled Of Criminal Intimidation, Insult and Annoyance, and is cognizable, bailable and triable by any magistrate. It holds: Whoever, intending to insult the modesty of a woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture is seen by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. Under the Indecent Representation of Women (Prohibition) Act (1987) if an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing the indecent representation of women, they are liable for a minimum sentence of 2 years. Section 7 (Offenses by Companies) further holds companies where there has been indecent representation of women (such as the display of pornography) on the premises, guilty of offenses under this Act, with a minimum sentence of 2 years. Civil case: A civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 350 7.10 The Beijing Declaration and Action Plan. The Beijing Platform for Action 1995, popularly known as the Beijing Declaration, has identified the following twelve critical areas of concern: 1. Women and poverty Strategic objective A.1. Review, adopt and maintain macroeconomic policies and development strategies that address the needs and efforts of women in poverty. Actions to be taken. Strategic objective A.2. Revise laws and administrative practices to ensure womens equal rights and access to economic resources. Actions to be taken. Strategic objective A.3. Provide women with access to savings and credit mechanisms and institutions. Actions to be taken. Strategic objective A.4. Develop gender-based methodologies and conduct research to address the feminization of poverty. Actions to be taken. 2. Education and training of women Strategic objective B.1. Ensure equal access to education. Actions to be taken. Strategic objective B.2. Eradicate illiteracy among women. Actions to be taken. Strategic objective B.3. Improve womens access to vocational training, science and technology, and continuing education. Actions to be taken. Strategic objective B.4. Develop non-discriminatory education and training. Actions to be taken Strategic objective B.5. Allocate sufficient resources for and monitor the implementation of educational reforms. Actions to be taken. Strategic objective B.6. Promote lifelong education and training for girls and women. Actions to be taken. 3. Women and health Strategic objective C.1. Increase womens access throughout the life cycle to appropriate, affordable and quality health care, information and related services. Actions to be taken. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 351 Strategic objective C.2. Strengthen preventive programmes that promote womens heath. Actions to be taken. Strategic objective C.3. Undertake gender-sensitive initiatives that address sexually transmitted diseases, HIV/AIDS, and sexual and reproductive health issues. Actions to be taken. Strategic objective C.4. Promote research and disseminate information on womens health. Actions to be taken Strategic objective C.5. Increase resources and monitor follow-up for womens health. Actions to be taken. 4. Violence against women Strategic objective D.1. Take integrated measures to prevent and eliminate violence against women. Actions to be taken. Strategic objective D.2. Study the causes and consequences of violence against women and the effectiveness of preventive measures. Actions to be taken. Strategic objective D.3. Eliminate trafficking in women and assist victims of violence due to prostitution and trafficking. Actions to be taken. 5. Women and armed conflict Strategic objective E.1. Increase the participation of women in conflict resolution at decision-making levels and protect women living in situations of armed and other conflicts or under foreign occupation. Actions to be taken. Strategic objective E.2. Reduce excessive military expenditures and control the availability of armaments. Actions to be taken. Strategic objective E.3. Promote non-violent forms of conflict resolution and reduce the incidence of human rights abuse in conflict situations. Actions to be taken. Strategic objective E.4. Promote womens contribution to fostering a culture of peace. Actions to be taken Strategic objective E.5. Provide protection, assistance and training to refugee women, other displaced women in need of international protection and internally displaced women. Actions to be taken. Strategic objective E.6. Provide assistance to the women of the colonies and non-self-governing territories. Actions to be taken. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 352 6. Women and the economy Strategic objective F.1. Promote womens economic rights and independence, including access to employment, appropriate working conditions and control over economic resources. Actions to be taken. Strategic objective F.2. Facilitate womens equal access to resources, employment, markets and trade. Actions to be taken. Strategic objective F.3. Provide business services, training and access to markets, information and technology, particularly to low-income women. Actions to be taken. Strategic objective F.4. Strengthen womens economic capacity and commercial networks. Actions to be taken. Strategic objective F.5. Eliminate occupational segregation and all forms of employment discrimination. Actions to be taken. Strategic objective F.6. Promote harmonization of work and family responsibilities for women and men. Actions to be taken. 7. Women in power and decision-making Strategic objective G.1. Take measures to ensure womens equal access to and full participation in power structures and decision-making. Actions to be taken. Strategic objective G.2. Increase womens capacity to participate in decision-making and leadership. Actions to be taken. 8. Institutional mechanisms for the advancement of women Strategic objective H.1. Create or strengthen national machineries and other governmental bodies. Actions to be taken. Strategic objective H.2. Integrate gender perspectives in legislation, public policies, programmes and projects. Actions to be taken. Strategic objective H.3. Generate and disseminate gender-disaggregated data and information for planning and evaluation Actions to be taken. 9. Human rights of women Strategic objective I.1. Promote and protect the human rights of women, through the full implementation of all human rights instruments, especially the Convention on the Elimination of All Forms of Discrimination against Women. Actions to be taken. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 353 Strategic objective I.2. Ensure equality and non-discrimination under the law and in practice. Actions to be taken. Strategic objective I.3. Achieve legal literacy. Actions to be taken. 10. Women and the media Strategic objective J.1. Increase the participation and access of women to expression and decision-making in and through the media and new technologies of communication. Actions to be taken. Strategic objective J.2. Promote a balanced and non-stereotyped portrayal of women in the media. Actions to be taken. 11. Women and the environment Strategic objective K.1.Involve women actively in environmental decision- making at all levels. Actions to be taken. Strategic objective K.2.Integrate gender concerns and perspectives in policies and programmes for sustainable development. Actions to be taken. Strategic objective K.3.Strengthen or establish mechanisms at the national, regional, and international levels to assess the impact of development and environmental policies on women. Actions to be taken. 12. The girl child Strategic objective L.1. Eliminate all forms of discrimination against the girl-child. Actions to be taken. Strategic objective L.2. Eliminate negative cultural attitudes and practices against girls. Actions to be taken. Strategic objective L.3. Promote and protect the rights of the girl-child and increase awareness of her needs and potential. Actions to be taken. Strategic objective L.4. Eliminate discrimination against girls in education, skills development and training. Actions to be taken Strategic objective L.5. Eliminate discrimination against girls in health and nutrition. Actions to be taken. Strategic objective L.6. Eliminate the economic exploitation of child labour and protect young girls at work. Actions to be taken. Strategic objective L.7. Eradicate violence against the girl-child. Actions to be taken. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 354 Strategic objective L.8. Promote the girl-childs awareness of and participation in social, economic and political life. Actions to be taken. Strategic objective L.9. Strengthen the role of the family in improving the status of the girl-child. Actions to be taken. The year 2010 marked the 15th anniversary of the adoption of the Beijing Declaration. Self-Assessment Questions 15. Fill in the blanks with appropriate words a. Sexual harassment at workplace is generally classified into two distinct types: quid pro quo and __________________. b. Quid pro quo, means seeking sexual favours or advances in exchange for _________________. 16. State whether the following statements are true or false. a. United Nations World Conference on Women held in Beijing in 1995 led to the adoption of the Beijing Declaration and Programme of Action. b. Under the Indecent Representation of Women (Prohibition) Act (1987) if an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing the indecent representation of women, they are liable for a minimum sentence of 3 years. 7.11 Summary Let us recapitulate the important concepts discussed in this unit: UN support for the rights of women began with the Organizations founding Charter. The Convention is the only human rights treaty which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. The CEDAW did not provide for individual complaint system. In order to fulfill this deficiency the Optional Protocol was adopted. Human Rights and Media Unit 7 Sikkim Manipal University Page No. 355 Provisions of Optional Protocol establish that States who become parties to the optional protocol recognize the competence of the Committee to receive and consider communications under the protocol. The optional protocol includes an inquiry procedure, as well as a complaints procedure. State parties have to submit a national report to the Committee within one year of accession or ratification of CEDAW and thereafter every 4 years or when the Committee requests. India has given the equal status to women under its Constitution under Articles 14. Women in India enjoy right to equality. However, in order to improve the status further, some protection has been given to them. UNICEF defines gender equality as leveling the playing field for girls and women by ensuring that all children have equal opportunity to develop their talents. The Suffragette Movement in the late nineteenth century laid the foundation of the movement towards gender equality. The most common forms of violence against women and girls are female foeticide, female infanticide, dowry deaths, bride burning, domestic violence and sexual harassment. The word rape has been derived from the Latin word rapere which means to seize or take by force. Rape is defined under Section 375 of Indian Penal Code 1983 as an unlawful and illegitimate sexual intercourse forced by a man on a woman without her consent. However, this law does not include sex which is forced onto a woman by her husband. The National Crime Records Bureau of Government of India reports approximately 6000 dowry deaths every year. Domestic Violence Act 2005 is the first significant attempt in India to recognize domestic abuse as a punishable offence. Women prisoners constitute a small minority and are often a neglected segment of population in terms of service provision. The National Commission for Women has made some recommendations which states that no woman should be arrested from sunset to sunrise, arresting should only take place in the presence of a lady constable and Human Rights and Media Unit 7 Sikkim Manipal University Page No. 356 there should be separate all-women police stations, separate lock-ups and jails for women. Sexual harassment is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favours. Sexual harassment at workplace is generally classified into two distinct types: quid pro quo and hostile work environment. Quid pro quo, means seeking sexual favours or advances in exchange for work benefits As there is no specific piece of legislation for dealing with the cases of sexual harassment, the action is taken under some sections of Indian Penal Code. Vishaka guidelines apply to both organized and unorganized work sectors and to all women whether working part time, on contract or in voluntary capacity. The Beijing Platform for Action 1995 identified the following twelve critical areas of concern: Women and poverty, Education and training of women, Women and health, Violence against women, Women and armed conflict, Women and the economy, Women in power and decision-making, Institutional mechanisms for the advancement of women, Human rights of women, Women and the media, Women and the environment, and the girl-child. 7.12 Glossary Inter alia : among other things Treaty : a formally concluded and ratified agreement between state Ratify: sign or give formal consent to Convention: an agreement between states covering particular matters, especially one less formal than a treaty Provision: a condition or requirement in a legal document Protocol: the official procedure or system of rules governing affairs of state or diplomatic occasions Human Rights and Media Unit 7 Sikkim Manipal University Page No. 357 Amniocentesis: A procedure which is used to diagnose fetal defects in the early second trimester of pregnancy Chorionic villus biopsy: A procedure used for prenatal diagnosis at 10- 12 weeks gestation. 7.13 Terminal Questions 1. Discuss the objectives and provisions of CEDAW. 2. What is the difference between rape and marital rape? Explain the legal procedure met out on people who are found guilty of these crimes. 3. Critically analyse the Dowry Prohibition Act. 4. What kind of problems do women prisoners face? List the legal provisions for women prisoners in India. 5. How do Vishakha Guidelines help in the prevention of sexual harassment at workplaces? 6. Describe the salient features of Protection of Women against Sexual Harassment at Workplace Bill, 2010. 7.14 Answers Answers to Self Assessment Questions 1. (a) 1975; (b) Mexico City 2. (a) True; (b) False 3. (a) CEDAW; (b) 22 December 2000 4. (a) False; (b) True 5. (a) gender equality; (b) non-western 6. (a) False; (b) True 7. (a) rapere; (b) 375 8. (a) True ;(b) False 9. (a) 6000 (b) one year Human Rights and Media Unit 7 Sikkim Manipal University Page No. 358 10. (a) True; (b) False 11. (a) domestic abuse; (b) sixty days 12. (a) True; (b) False 13. (a) health problems; (b) Custodial 14. (a) True; (b) True 15. (a) hostile work environment; (b) work benefits 16. (a) True; (b) False Answers to Terminal Questions 1. Refer to Section 7.3 2. Refer to Section 7.5 3. Refer to Section 7.6 4. Refer to Section 7.8 5. Refer to Section 7.9.3 6. Refer to Section 7.9.5 7.15 Further Reading 1. http://en.wikipedia.org/wiki/Rape 2. http://en.wikipedia.org/wiki/Marital_rape