CHAPTER-V

CONCLUSIONS AND SUGGESSTIONS

Human rights are those minimal rights which every individual must
have by virtue of his being a ‘member of the human family’ irrespective of
any other consideration. They are based on mankind’s demand for a life in
which the inherent dignity of the human being will receive respect and
protection. They are forming the foundations of a society and they are
inviolable, as the society would disintegrate, if they are violated. There is a
growing rhetoric in the recent past as to the promotion and protection of
human rights around the world. This is because of the flagrant and blatant
violations of human rights by the people in government and non-government
sectors. The promotion and protection of human rights need a conducive and
enabling environment, in particular to appropriate regulations, institutions
and procedures framing the actions of the State. The rule of law is
indispensable for the exercise of the Government in a way that promotes and
protects human rights.

Human rights are considered as the greatest idea of this generation and
a milestone in the development of the rights of man. Innumerable
declarations, covenants and legislations have been initiated and entered into
the national and international levels for the protection and promotion of
human rights. In spite of a proliferation of Declarations and Covenants on
human rights, instances of their violation continue unabated. The issue of
human rights has become a very vital significance to mankind. The violation
of human rights in India has been increasing day by day across its regions,
classes, castes and gender. India has a written Constitution, an active and
independent judiciary and press, which are eternally vigilant in the
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promotion and protection of human rights. Human rights violations,

whatever be the level, is a heinous crime against the society and hence, a
grave problem which is concerned with the entire human race. Today, we
are in the need of a strong society based on the fundamental principles of all
acceptances of human rights both in theory as well as in practice.

The establishment of the National Human Rights Commission in

India has been quite positive. NHRC had come into existence in the year
1993 to provide better protection in cases of violations of human rights.
National Human Rights Commission in India is playing a vital role in
influencing the policy making and sometimes even policy initiations,
facilitating protection and promotion of human rights. NHRC is providing
an excellent mechanism for building the public opinion and strong alliances
and partnerships with Non Governmental Organisations and other human
rights activists for influencing the national agenda on human rights.

It is the bounden duty on the part of the State to implement the human
rights. Strengthening the justice delivery system is the foundation for world
peace which is achieved through universal respect for human rights. The
judiciary has a very significant role in fulfilling the promise of the Universal
Declaration that the recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family.

The function of the judiciary is vital in the protection of human rights

and punishment of the violations. Through various techniques like using the
new strategy of public interest litigation, the Supreme Court of India had
given expansive interpretation to the right to life and liberty, protecting
minority rights, promoting gender justice, creating a new kind of
compensatory jurisprudence, holding executive responsible for avoiding
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public duty and requiring transparency in the conduct of public affairs. All
the concerned issues were discussed in detail in the preceding chapters of
the thesis. In this chapter, the findings of the study and suggestions offered
are presented.

6.1 United Nations and Human Rights: Some Findings:

The United Nations has succeeded in creating awareness among all

for worldwide. One of the major achievements of the United Nations was
the adoption of the Universal Declaration of Human Rights, 1948 and the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights, 1966, which were
intended to bring the rights outlined in the Universal Declaration into the
enforceable realm of International law. The Human Rights Commission,
United Nations High Commissioner for Human Rights, Human Rights
Committee and the Committee on Economic, Social and Cultural Rights are
playing a pivotal role in protecting the human rights at the International
level.

One of the purposes of the United Nations is the promotion and

encouragement of respect for, and observance of human rights and
fundamental freedoms. The role and scope of the United Nation action in
promoting and protecting human rights have tremendously increased in the
last 57 years. The term ‘promotion of human rights’ may mean setting of
International Standard of Human Rights Education and Dissemination.
Under the United Nation Charter, the prime responsibility for the promotion
<0

of human rights lies in the General Assembly, in the Economic and Social
Council and its subsidiary body, the Commission on Human Rights.
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Following the adoption of the Universal Declaration of Human Rights,

1948, the General Assembly called upon all member countries to publicize the
text of the Declaration and ‘to cause it to be disseminated, displayed, read and
expounded principally in schools and other educational institutions, without
distinction based on the political status of countries or territories.

The United Nations High Commissioner for Human Rights established

a ‘Human Rights Hot Line5 round the clock facsimile line, that will allow
the Office of the High Commissioner for Human Rights in Geneva to
monitor and react rapidly to the human rights emergencies. This Hot Line is
available to the victims of human rights violations, their relatives and Non-
Governmental Organisations. It is valuable to those wishing to establish
urgent, potentially life-saving contact with the Special Procedure Branch of
the Office of the High Commissioner for Human Rights.

United Nations Member States overwhelmingly approved the

establishment of a new Human Rights Council, which would be a subsidiary
body of the General Assembly, aiming to strengthen the world body’s
machinery to promote and protect fundamental rights, and deal with the
major human rights offenders. The new Human Rights Council, created by
General Assembly by its Resolution 60/251 on 15 March 2006 to replace the
Geneva-based Commission on Human Rights, will seek to address violations
of human rights, including gross and systematic violations, and promote
effective coordination and the mainstreaming of human rights within the
United Nations system.

The new Human Rights Council will assume the role and
responsibilities of the Commission on Human Rights relating to the work of
the Office of the High Commissioner. The Council will be a standing body
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that will operate year-round, which would also have the ability to respond to
human rights crisis when they occur, rather than waiting many months to
address urgent issues. The Council will also make recommendations to the
General Assembly for further development of International Law in the field
of human rights. The various Conventions1 and Covenants adopted by the
United Nations constitute some of the principal developments in the
international human rights law.

6.2 Some findings on the Constitutional provisions:

The Constitution of India is the first and foremost a social document.

It is one of the most rights-based Constitutions in the world. The
Constitution of India captures the essence of human rights, in its Preamble,
and the Fundamental Rights and the Directive Principles of State Policy. The
Constitution of India enshrines an elaborate list of fundamental rights and
freedoms. Indeed, the rights are more comprehensive than those found in
any other written Constitution in the world. Over the last five decades,
notwithstanding the constitutional precepts on human rights and freedoms,
we have experienced gross violations of human rights. Abuse of human
rights, discrimination and inequalities, poverty and hunger, long-term
detention without trial, custodial deaths, fake police encounters, sexual
violence, communal violence, corruption and other social ills, are widely

Convention on the Prevention and Punishment of the Crime of Genocide, 1948, League of Nations Slavery
Convention, 1926, and its replacement in 1956, Convention Relating to the Status of Refugees, 1951,
Convention on the Political Rights of Women, 1953, Convention Relating to the Status of Stateless Persons,
1954, International Convention on the Elimination of All Forms of Racial Discrimination, 1966, International
Convention on the Suppression and Punishment of the Crime of Apartheid, 1973, Convention against Torture,
and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Convention on the Elimination of All
Forms of Discrimination Against Women, 1979, Convention on the Rights of the Child, 1989, and International
Convention on the Protection of the Rights of all Migrant Workers and Their families, 1990.
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rampant. The promises made in the Constitution are as far from realisation
now as ever.

It is universally recognised that right to life, liberty and dignity are

inherent in the human nature. These basic human rights are enforceable
rights in every civilized and welfare State. Right to life is one of the basic
human rights. It is guaranteed to every person by Article 21 of the
Constitution and not even the State has authority to violate that right. A
prisoner, a convict or under-trial or a detenue, does not cease to be a human
being. Even when lodged in the jail, he continues to enjoy all his
fundamental rights including the right to life guaranteed to him under the
Constitution. On being convicted of crime and deprived of their liberty in
accordance with the procedure established by law, prisoners still retain the
residue of constitutional rights. Thus, the fundamental rights, which also
include the basic human rights, continue to be available to a prisoner and
those rights cannot be defeated by pleading the old and archaic defence of
immunity in respect of sovereign acts which has been rejected several times
by the Supreme Court.2

6.3 The Working of the Judiciary: An Assessment

Judiciary is the custodian of human rights. The role of judiciary in

handling the cases of violation of human rights is impressive. The Judiciary
has adopted new approaches, developed new tools and invented new
remedies to deal increasing challenges to basic human rights from the
Government as well as from the Centres of power.

2 State ofA.P. v. Challa Ramakonda Reddy A.I.R.2000 S.C.2083 at p.2088,

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Over the last fifty years, the Supreme Court has been rendering
invaluable service to the nation by upholding the human rights. A vast
majority of the constitutional cases which came before the Supreme Court
were those, which helped to preserve and maintain the rights of the common
man against the State. In doing so, the court has acted judicially,
uninfluenced by any philosophy other than the philosophy of the
Constitution. The court has protected the personal liberty against arbitrary
invasion by the State. The fundamental rights in our Constitution are
entrenched with so many restrictions and that imposes a heavy duty on the
judiciary, to impose a check on the exercise of government power in
violation of these rights. The Supreme Court has stood to the need and has
proved true to the aspirations of the people. In fact, the judicial attitude has
changed with the need of the time and has ignored the ‘traditional
procedural obstructions’. This has created the concept of ‘judicial activism’
in the Indian legal system.

It is also quite visible that the Courts in India through the judicial
activism have been able to bring astonishing results by vindicating the rights
of degraded bonded labourers, tortured-under trials, blinded prisoners, child-
workers, helpless pensioners, poor hawkers, depressed women, etc.,. It is
because of the judicial endeavour that, it has become possible to each and
every human being in India to lead a life full of dignity, enjoy right to
privacy, shelter, health and medical assistance, and healthy environment.
The scope of Article 21 has brought about a vital change in the field of
human rights jurisprudence. All this ultimately enables us to conclude that,
Indian Judiciary has endeavoured hard to uphold the spirit of Universal
Declaration of Human Rights, 1948, International Covenant on Civil and
Political Rights, 1966, and International Covenant on Economic, Social and
Cultural Rights, 1966 thereby achieved a tremendous success in resurrecting
the Human Rights Jurisprudence.

The Judiciary in India has done matchless service in protecting the

people from police atrocities and thus protected their human rights. The talk
of human rights and declaring them as fundamental rights in the Constitution
is meaningless unless they can be enforced by an effective machinery. If
there is no effective remedy against the violation of human rights, there is no
effective human right in the real sense.

In India, the Supreme Court needs to assimilate the progressive trends

in other jurisdiction in using its inherent powers to build up human rights
jurisprudence. In this connection, the Supreme Court and High Courts have
used Social Action Litigation to protect and safeguard the basic human rights
of the poor and the underprivileged. It is of special importance to mention
that, the Supreme Court has moved away from the traditional concept of
locus standi and the adversary system of justice and has ventured out to even
appoint commissions of inquiry to ascertain the facts of the case before
handling down a decision on allegation of violation of human rights.

In India, the Supreme Court is strong, independent and creative.

Through judicial interpretation, the Supreme Court has widened the sweep
and scope of human rights in India. It has intervened suo motu, whenever
the violations of human rights have taken place and had come to the rescue
of the citizens.

The Supreme Court of India has been very vigilant against the
encroachments upon the human rights of the prisoners. Article 21 of the
Constitution guarantees the right of life and personal liberty and thereby
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prohibits any inhuman, cruel or degrading treatment of any person whether

he is a national or foreigner. In D.K.Basu case, the Supreme Court held that
the torture by police struck a blow at the rule of law. Custodial violence has
been held to be a calculated assault on human dignity, perhaps it is one of
the worst crimes in a civilised society which is governed by the rule of law.
The Supreme Court of India has laid down the detailed guidelines to be
followed by the Centre and States Investigating and Security Agencies in all
cases of arrest and detention.

In the recent years, the judiciary began to award compensation for the
violation of human rights by the State. Judicial activism has not only
protected the human rights of the people, but it has also led to the granting of
exemplary compensation to the victims of police atrocities, which resulted in
human rights violation. The Supreme Court had delivered a series of
decisions from Rudul Shah to D.K.Basu, which conferred an enforceable
right to compensation for the citizens of India in appropriate cases of
violation of human rights. The court maintained an appropriate case one
where the infringement of human rights is patent, incontrovertible and
exfacie glaring and its magnitude is such so as to shock the conscience of the
Constitution and the courts. The findings of the Supreme Court in Nilabati
Behara and D.K.Basu are in tune with National and International human
rights movement to secure compensation to the victims of State lawlessness.
Article 9(5) of International Covenant on Civil and Political Rights, 1966,
provides that “Anyone, who has been the victim of unlawful arrest or
detention, shall have an enforceable right to compensation”. In India,
although there is no specific analogous provision incorporated in the
Constitution, but the judicial grammar of interpretation of Article 21 has
brought about revolutionary breakthrough in the human rights jurisprudence.
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It is necessary to evolve an acceptable and scientific criterion for

assessment of compensation. Another policy evolved by the Supreme Court
and the various High Courts is that the quantum of compensation would be
recovered from the State exchequer for the wrongful acts of individual
police personnel. In this direction, in Saheli case, the Supreme Court
ordered that the payment of compensation be recovered from the wrong-
doer. It is to be noted that mere granting of the compensation by the
Supreme Court to the victim is not sufficient, but at the same time, there
should be a punitive action against the guilty police personnel.

It is now well settled that the award of compensation against the State
is an appropriate and effective remedy for redress of an established
infringement of fundamental right under Article 21, by a public servant. The
quantum of compensation will depend upon the facts and circumstances of
each case.

The protection of environment is the watch word the of late 20

century. The Supreme Court of India had opened a new vistas and new
aspirations in the arena of environmental protection. It is to be noted that the
Constitution of India did not originally contain any direct provision
regarding the protection of natural environment, but taking note of the
Stockholm Conference and growing awareness of the environment crises,
amended it to add direct provision for the protection of environment. The
42nd Amendment Act, 1976, has made it a fundamental duty to protect and
improve the natural environment and to safeguard the forests and wild life of
the country.

It is to be noted that the Courts in India had slowly expanded the

concept of quality of life and applied the same to different facets of
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environment. The Supreme Court later on widened the horizons of

environmental protection. The Supreme Court has, moreover, made it amply
clear that the PEL is maintainable for ensuring pollution free water and air,
which is implicit in right to live under Article 21 of the Constitution.

Without policing the police, it is impossible to expect protection and

promotion of human rights. The police training should be re-oriented so as
to generate the values of ethics and morals. Apart from physical fitness, the
mental health of the police should receive due consideration. No person
should be detained without the reasons, the place, the time of detention, the
identity of the relevant detaining officials and the law applied, being
recorded. Place and cause of detention must be communicated to the
families and the lawyers who must also be allowed to have access to
detainees under the law.

Custodial violence or harassment cannot always be supported by a

medical report or independent evidence on the basis of marks or scars.
Every illegal detention irrespective of its duration, and every custodial
violence, irrespective of its degree or magnitude, is outright condemnable
and per se actionable. Remedy for such violation is available in civil law
and criminal law.

Majority of the population of India covered particularly the village

people, who are backward, poor, and illiterate. In fact, the concept of human
rights is still not known to remote areas. Hence, wider dissemination of
knowledge of human rights is an important aspect to create human rights
culture in India. To achieve this goal, vast changes are to be brought in the
area of education, in general, and human rights education in particular,
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which should serve as an appropriate tool for the protection of the human
rights.

It is to be noted that currently, child labour is the most serious

problem with which India is confronted and it is one of the worst forms of
human rights violation. In India, the role of judiciary has been quite
significant in promoting the chid welfare. It is pertinent to mention that the
judiciary has almost brought a revolution in the life of child workers in India
and it has time and again interpreted and developed the laws to eradicate the
child labour. Various laws were enacted to restrict the minimum age for
employment and to regulate the conditions of child employment like Child
Labour (Prohibition and Regulation) Act, 1986, Factories Act, 1948, etc.,

The system of bonded labour is a stigma on human society. The

practice of employing bonded labour has been one of the worst forms of
abuse of human rights. Many attempts have been made to eradicate the
system of bonded labour at National and International levels. It is also to be
noted that the Supreme Court had played an effective role in eradicating the
bonded labour system. . The decisions of the Supreme Court in Bandhua
Mukthi Morcha and Neeraja Choudary unequivocally condemned the
callous attitude on the part of the State in rehabilitating the bonded labourers
in the country.

The problems of bonded labour cannot be solved by mere

identification, abolition and prohibition of bonded labourers and by
penalising the persons practising such system. These problems are deep
rooted in the socio-economic set-up of the country and despite the court
verdicts in their favour; their conditions have not been improved. This
shows the lack of determination on the part of the Government. It is high
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time for the administration to take serous note of the directions of the
Supreme Court in a positive manner. Indeed, there is a greater need not only
to identity and release but also rehabilitate the bonded labourers, then only it
can be considered that the human rights of bonded labourers are well
protected in India, in the welfare state established under the Constitution
with long cherished goals.3

Public Interest Litigations and the judicial activism of the Supreme

Court initiated by Justice V.R. Krishna Iyer and Justice P.N. Bhagwati has
played a major role in expanding the scope of human rights and giving it, a
much needed legitimacy through important decisions on the rights of
prisoners and bonded labourers etc.,

6.4 Findings on the Role of NHRC:

The National Human Rights Commission of India came into

existence, in the year 1993, to provide better protection in cases of violations
of human rights expeditiously, and to remove the defect of the existing
judicial process. Truly speaking, it is a unique and independent institution,
which plays an ideal, supportive and supplementary role, to other institutions
that are engaged in upholding rule of law in Indian society. The National
Human Rights Commission is necessary in a graded society in the
promotion and protection of basic human rights.

The main purpose of setting up of the Commission is to strengthen the

machinery for more effective enforcement of fundamental rights of the
people. Ever since the establishment of the Commission, it has been

3 Dr.Subrahmanyam A, ‘Human Rights ofBonded Labour: A Constitutional Perspective Labour and

Industrial Cases, at p.341
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discharging its functions effectively. The Commission has awarded

compensation in many cases of custodial deaths and also recommended for
prosecution of the concerned police personnel. The Commission issued a
number of guidelines to the States like mandatory requirement of reporting
all custodial deaths to the NHRC within 24 hours, sending of magisterial
enquiry reports in all cases of custodial deaths, and videography of post
mortem in all cases of custodial deaths. These guidelines as well as the
investigative mechanisms of the Commission had its salutary effect on
checking the rising of custodial deaths.

Most of the States are yet to constitute State Human Rights

Commissions. Especially in the context of increasing violations of human
rights, it is difficult for any single institution to meet the growing demand for
the protection of human rights of all persons. In a very short span of time, the
National Human Rights Commission has been receiving many complaints of
human rights violation from all parts of the country. Thus, its work-load has
increased beyond proportion. Therefore, it is the need of the hour that every
State must constitute its own Human Rights Commissions, so as to provide
speedy justice to the people and protect them from the violation of their human
rights. Till so far, only 14 State Human Rights Commissions are established for
the effective implementation of human rights.

The Commission has become an effective check on the misdeeds,

negligence, excesses, abuse of powers by police and other governmental
agencies. The powers of the Commission which are in the nature of
recommendatory, does not render it impotent. The Commission’s power to
follow-up its recommendations and the corresponding statutory obligations
imposed upon the State authorities to answer them with action taken report
are proposed to be taken, within a stipulated time, would speak of
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Commission’s real authority. It is to be noted that the Commission has no

power to take action directly. It does not have any power to punish the
guilty. This position is far from satisfactory.

The functioning of the Commission is very much impressive in nature.

The implementation mechanisms of the Commission make it abundantly
clear that it does not replace the role of the regular Courts. Thus, the
Commission has been functioning as supplement to the regular courts in
cases of violations of human rights in providing better protection. Section 12
(a) of the Protection of Human Rights Act, 1993 provides that the
Commission shall intervene in any proceeding involving any allegation of
violation of human rights pending before a court with the approval of such
court. It is important to note that the Commission has intervened in a number
of pending proceedings involving human rights issues in different courts
including the Supreme Court.

It is to be noted that for better realisation of human rights, public must

be made aware of their rights and the safeguards available for the protection
of those rights. Section 12 (h) of the Protection of Human Rights Act, 1993,
imposes an obligation of the Human Rights Commissions to “spread human
rights literacy among various sections of society and promote awareness of
the safeguard available for the protection of these rights through
publications, the media, seminars and other available means”. The media can
play a positive role by publishing details about the human rights and the role
of NGO’s in protecting human rights.

Thus, it is clear that as far as the protection of human rights is

concerned, the media especially the press has played a vital and positive role
in the protection of human rights by bringing to light, the human rights
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violations whether committed by the Government and its machineries or by

others. The role of media is very much appreciated, especially in cases
where the Government agents who are supposed to protect human rights
have in fact abused them. In this process, the media has proved that it can
act as a saviour of the human rights of the poor, needy and the oppressed.
While, as far as promoting human rights is concerned, it is greatly
acknowledged that the media, being a source of information can also play a
telling role. It can educate people and create awareness of human rights etc.,
The media is expected not to play a negative role in the protection and
promotion of human rights.

Creating human rights awareness is considered important and useful

for the better protection and promotion of human rights. With this in view,
the Human Rights Commission has organised and supported several
workshops, training programmes and seminars for sensitizing the
stakeholders on human rights issues consisting of academicians, activists,
Non-Governmental Organisation’s, civil servants, etc., In 2005-2006, twenty
five training programmes were conducted addressing problems of human
rights and prevention of atrocities against the weaker sections, legal literacy
for the women, mental health education, combating trafficking in women
and children, etc.,

In India, a large number of people do not have adequate access to

basic amenities like water, food, shelter, sanitation, health, and education.
Moreover, they do not know what their rights are. Chronic poverty,
oppression, and deprivation have made them most vulnerable. To bring
about a change, many Non-Governmental Organisations have been playing
an effective role. In civil society, NGO’s have been playing significant role
in generating awareness about various issues affecting the society and also
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undertaking the development activities for the amelioration and betterment

of the deprived sections of the society. Currently, there are a large number of
NGO’s around the world for propagating, advocating, campaigning and
creating awareness among the people about human rights. There are NGO’s,
though not directly involved in human rights violation but indirectly assist
in promoting human rights in society. In India, thus, NGO’s have been
playing the most important role in promoting knowledge of human rights,
identifying problems in the protection and enjoyment of human rights and
seek changes in the legislations.

Promotion and protection of human rights ensures prevalence of

freedom, justice, peace and order in each society. It ensures recognition of
worth of individual on equal basis and also that every human being fulfils a
quality, life based equality, dignity, respect and concern. A human rights
culture has to be developed in each component society. Observance of
human rights is very essential and vital for every society to live in peace,
harmony and brotherhood.

The human rights movement in the new millennium needs to reflect

on and be pro-active rather than reactive in evolving a new culture which is
more sensitive, reflective and responsive to social relations. There is a need
to evolve new culture at various levels such as:

a) Spreading awareness amongst masses, particularly amongst the weaker,

the poor, disadvantaged and vulnerable groups, about their human
rights;
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b) Improving capacities and confidence more so in the case of weak and

disadvantaged to stand and ask for enforcement, protection and
preservation of their rights;

c) Sensitizing and requiring people to shed away some of their prejudices

and attitudes which are derogatory of others’ dignity;

d) Creating different kind of knowledge, innovating or reforming

structures, evolving methodologies and normative regimes that are more
responsive to human rights jurisprudence;

e) Devising and imparting new skills, training and competencies amongst

the policy-makers, decision-makers and those responsible for executing
these policies and human rights in discharging their functions;

f) A new Ministry or Department of Human Rights should be created both

at the Central and State levels and all the human rights commissions
should be required to function under its jurisdiction;

g) There should not be delay in the tabling of annual reports of the

commissions on human rights in Parliament. Since these reports contain
significant data and information concerning the protection or violation of
human rights, they should be tabled at once in the Houses of Parliament.
It is only after the report is tabled, it is made to the public;

h) All the States should be asked to set up Human Rights Courts in every
District, as envisaged in the Protection of Human Rights Act, 1993,
which will reduce the workload of the Supreme Court and the High
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Courts, which are already having huge backlog of cases, including

petitions under the Articles 32 and 226.

i) Protection of Human Rights Act should be amended to ensure an

enforceable right to compensation for unlawful detention or arrest;

j) In curbing the menace of custodial violence, India should immediately

ratify the United Nation Convention against Torture.

k) Training, education and sensitization programmes in human rights and

duties should be regularly imparted to law enforcing agencies,
particularly to the police and paramilitary personnel.