Chapter 2

International Instruments on Human

Rights
International Instruments on Human Rights
1. Introduction
2. International Covenant on Civil and Political Rights (ICCPR), 1966
3. International Covenant on Economic, Social and Cultural Rights
(ICESCR) , 1966
4. International Covenant on the Elimination of all Forms of Racial
Discrimination, 1966
5. Relevant Provisions of the Constitution of India
 International Covenant on Civil and Political
Rights (ICCPR), 1966
• The International Covenant on Civil and Political Rights (ICCPR) is a
multilateral treaty adopted by United Nations General Assembly on 16
December 1966, and in force from 23 March 1976.
• As of September 2019, the Covenant has 173 parties.
• The ICCPR is monitored by the United Nations Human Rights Committee,
which reviews regular reports of States parties on how the rights are being
implemented.
• States must report initially one year after acceding to the Covenant and
then whenever the Committee requests (usually every four years). The
Committee normally meets in Geneva and normally holds three sessions
per year.
• Part of the International Bill of Human Rights.
ICCPR Commits parties to respect the civil and
political rights of individuals, including: -
• The right to life
• Freedom of religion
• Freedom of speech
• Freedom of assembly
• Electoral rights
• Rights to due process and a fair trial
 Articles of the Covenant
Part 1 (Article 1) recognizes the right of all peoples to self-determination, including
the right to “freely determine their political status”, pursue their economic, social
and cultural goals, and manage and dispose of their own resources. It recognises a
negative right of a people not to be deprived of its means of subsistence.
Part 2 (Articles 2 – 5) obliges parties to legislate where necessary to give effect to
the rights recognised in the Covenant, and to provide an effective legal remedy for
any violation of those rights. It also requires the rights be recognised “without
distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status,” and to
ensure that they are enjoyed equally by women. The rights can only be limited “in
time of public emergency which threatens the life of the nation, and even then no
derogation is permitted from the rights to life, freedom from torture and slavery,
the freedom from retrospective law, the right to personhood, and freedom of
thought, conscience and religion.
Articles of the Covenant
• Part 3 (Articles 6 – 27) lists the rights themselves. These include rights to:
• physical integrity, in the form of the right to life and freedom from torture and slavery (Articles 6,
7, and 8);
• liberty and security of the person, in the form of freedom from arbitrary arrest and detention
and the right to habeas corpus (Articles 9 – 11);
• procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the
presumption of innocence, and recognition as a person before the law (Articles 14, 15, and 16);
• individual liberty, in the form of the freedoms of movement, thought, conscience and religion,
speech, association and assembly, family rights, the right to a nationality, and the right to privacy
(Articles 12,13,17-24)
• prohibition of any propaganda for war as well as any advocacy of national or religious hatred that
constitutes incitement to discrimination, hostility or violence by law (Article 20);
• political participation, including the right to the right to vote (Article 25);
• Non-discrimination, minority rights and equality before the law (Articles 26 and 27).
Articles of the Covenant
• Part 4 (Articles 28 – 45) governs the establishment and operation of
the Human Rights Committee for the reporting procedure and inter-
state communication system. It also allows parties to recognise the
competence of the Committee to resolve disputes between parties on
the implementation of the Covenant (Articles 41 and 42).
• Part 5 (Articles 46 – 47) clarifies that the Covenant shall not be
interpreted as interfering with the operation of the United Nations or
“the inherent right of all peoples to enjoy and utilize fully and freely
their natural wealth and resources”.
• Part 6 (Articles 48 – 53) governs ratification, entry into force, and
amendment of the Covenant.
 Optional protocols

There are two Optional Protocols to the Covenant.

• The First Optional Protocol establishes an individual complaints mechanism,
allowing individuals to complain to the Human Rights Committee about
violations of the Covenant. This has led to the creation of a complex
jurisprudence on the interpretation and implementation of the Covenant. As
of September 2019, the First Optional Protocol has 116 parties.
• The Second Optional Protocol abolishes the death penalty; however,
countries were permitted to make a reservation allowing for use of death
penalty for the most serious crimes of a military nature, committed during
wartime. As of September 2019, the Second Optional Protocol had 87 parties.
International Covenant on Economic, Social
and Cultural Rights (ICESCR) , 1966
• The ICESCR 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).
• The Covenant is monitored by the UN Committee on Economic, Social and
Cultural Rights.
• The first document became the International Covenant on Civil and
Political rights, and the second the International Covenant on Economic,
Social and Cultural Rights.
• International Covenant on Economic, Social and Cultural Rights was
adopted by the United Nations General Assembly on 16 th December, 1966
and came into effect on 3rd January, 1976.
• ICESCR consists a preamble and 31 Articles, divided into following 5 parts.
What are economic, social, and cultural rights
• Social Rights
• Core needs for a dignified life
• Right to an Adequate Standard of Living
• Economic Rights
• Rights to work
• Right to social assistance
• Right to property
• Pre-conditions for enjoyment of social and other rights
• Cultural Rights
• Right to education
• Right to participate in one’ own culture
• Right to cultural identity
 International Covenant on Economic, Social
and Cultural Rights (ICESCR) , 1966
• Right to self-determination
• Equal rights between men and women
• Right to work
• Right to just and favourable conditions of work
• Right of workers to organise and bargain collectively
• Right to social security and social insurance
• Right to protection and assistance for the family
• Right to an adequate standard of living
• Adequate food
• Adequate clothing
• Adequate housing
• Right to freedom from hunger
• Right to the highest attainable standard of physical and mental health, including health care
• Right to education
• Right to culture and benefit from scientific progress
 International Covenant on Economic, Social
and Cultural Rights (ICESCR) , 1966
• Part 1 (Article 1) recognises the right of all people to self-
determination, including the right to “freely determine their political
status” pursue their economic, social and cultural goals, and manage
and dispose of their own resources.
• Part 2 (Articles 2 – 5) establishes the principle of “progressive
realisation”. It also requires the rights to be recognised “without
discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other status”.
 International Covenant on Economic, Social
and Cultural Rights (ICESCR) , 1966
• Part 3 (Articles 6 – 15)
• these include right to work, under “just and favourable conditions”, with
the right to form and join trade unions (Articles 6, 7, and 8);
• social security, including social insurance (Article 9);
• family life, including paid parental leave and the protection of children
(Article 10);
• An adequate standard of living, including adequate food, clothing and
housing, and the “continuous improvement of living conditions” (Article
11);
• health, specifically “the highest attainable standard of physical and mental
health” (Article 12);
 International Covenant on Economic, Social
and Cultural Rights (ICESCR) , 1966
• education, including free universal primary education, generally
available secondary education and equally accessible higher
education. This should be directed to “the full development of the
human personality and the sense of its dignity” and enable all person
to participate effectively in society (Articles 13 and 14);
• Participation in cultural life (Article 15)
 International Covenant on Economic, Social
and Cultural Rights (ICESCR) , 1966
• Part 4 (Article 16-25) :-
Governs reporting and monitoring of the covenant and the steps taken
by the parties to implement it.

• Part 5 (Article 26-31) :

Governs ratification, entry into force, and amendment of the covenant.
International Covenant on the Elimination of all
Forms of Racial Discrimination, 1966
• The convention was adopted by the United Nations General Assembly
on 21 December 1965, and entered into force on 4 January 1969.
• As of July 2020, it has 88 signatories and 182 parties.
• The Convention is monitored by the Committee on the Elimination of
Racial Discrimination (CERD).
• A third-generation human rights instrument, the Convention commits
its members to the elimination of racial discrimination and the
promotion of understanding among all races.
• The Convention also requires its parties to outlaw hate speech and
criminalize membership in racist organizations.
 Role of ICERD
ICERD consist of preamble and 25 Article, divided into 3 parts.
Fundamental value of equality: made clear from both the general (ICCPR and
ICESCR) and the various specialist Conventions
CERD –
Art 1 define the term ‘racial discrimination’
Art 2 obligation to prevent racial discrimination (negative obligation) and encourage
multiracial institutions (positive obligation)
Supplemented by various additional specifics:
Art 4 – duty to criminalise incitement to racist hatred and discrimination, and
organisations based on such propaganda
Art 5 – need to ensure equality in relation to both civil and political rights and also
economic social and cultural rights
Relevant provisions of the Constitution of india

Preamble
Part III and Part IV
 Preamble
• Preamble declares India as Sovereign, Socialistic, Secular, Democratic,
Republic
• It calls to secure to all its citizens
• Justice – Social, Economic and Political
• Liberty – of thought expression, belief, faith and worship
• Equality-of status and opportunity, and to promote among them all,
• Fraternity-assuring the dignity of the individual and the unity and
integrity of the nation.
Features Fundamental rights are:-
• Justiciable.
• Taken from constitution of U.S.A.
• Not absolute but qualified.
• Suspended during the operation of national emergency (352) except
the rights guranteed by Article 20 & 21.
Relevant provisions of the Constitution of india
• Six broad categories of Fundamental Rights are:
• Right to equality (Article 14-18)
• Right to freedom (article 19-22)
• Right against exploitation (article 23-24)
• Right to freedom of religion (Article 25-28)
• Cultural & educational rights (Article 29-30)
• Right to constitutional remedies (Article 32)
 Right To Freedom (Articles 19-22)
Article 19
It guarantees to all citizens 6 rights:
1. Right to Freedom of Speech & expression.
2. Right to assemble Peaceably & without arms.
3. Right to form Associations or Unions or Co-operative societies.
4. Right to move freely throughout the Territory of India.
5. Right to reside and settle in any part of the Territory of India.
6. Right to practice any Profession or to carry on any Occupation,
Trade /Business.
 Article 19 (1) (a) :- Freedom of speech and
expression
Every Citizen can express his views. Opinions, belief & convictions by whatsoever manner. It includes:
Freedom of silence
Press
Commercial Advertisements
Telecast
Freedom against Taping of Phone etc.
State can impose reasonable restrictions on the Right to freedom & speech & expression on the grounds of :
Sovereignty & Integrity of India.
Security of the state.
Public Order.
Decency / Morality.
Contempt of Court, Defamation.
Right to Assemble Peaceably & Without Arms
Art. 19(1)(b)
> Every Citizen has the Right to Assemble peaceably & without arms.
> Hold Public meetings, Demonstrations & take out Processions.
> Can be exercised only on Public land.
> Doesn’t Include Right to Strike

Under Section 144 of CrPC 1973, A Magistrate can restrain an assembly

/ meeting if any unlawful activity is suspected.
Under section 141 of IPC, Assembly of 5 or more than 5 becomes
unlawful if the object is ;
1) To resist the execution of any law or legal process.
2) To forcibly occupy the property of some person.
3) To commit any mischief / Criminal Trespass.
4) To force some person to do an Illegal Act.
5) To threaten the government or its officials on exercising lawful
powers.
> Here State can impose reasonable restrictions on this right on 2
grounds ;1) Sovereignty & Integrity of India. 2) Public Order
 Art 19(1)(c):-
Right to form Associations/Unions/Co-operative
• All Citizens have the Right to form Associations / Unions / Co-
operative Societies. Includes Right to form Political Parties,
Companies, Partnership firms, Clubs, Societies, Organizations, etc.

• Reasonable restrictions can be imposedon the grounds of ;

• Sovereignty & Integrity of India.
• Public Order
• Morality
 Art 19(1) (d) Freedom to move freely through the
territory of India
Movement can be of 2 types : 1) Right to move out of the country & come
back. 2) Right to move inside the country.
Article 19 only protects the Right to move inside the country :
> It entitles every citizen to move freely throughout the country.
>One can move freely from one state to another or from one place to
another within a state.

This Right can be restricted on 2 grounds.

i. The interests of general Public.
Ii. Protection of interests of Scheduled Tribe.
Freedom of Residence 19(1) (e)
1. Every Citizen has the Right to reside and settle in any part of the
Territory of India.
(Temporary + Permanent)
State can impose reasonable restrictions on this right on 2 grounds ;
i.Interests of General Public.
Ii. Protection of interests of any Scheduled Tribes.
[E.g. Outsiders can’t settle & reside in Tribal areas).
Freedom of Profession
• > All the Citizens have the Right to practice any Profession or to carry
on any Occupation, Trade / Business.
• > It covers all the means of earning one's livelihood.
• > Does not include the Right to carry on Dangerous / Immoral
Business / Trade.
 Protection Against Conviction of Offences:
Art 20
Art. 20 of Indian Constitution provides for protection in respect of
conviction of offences. In other words, it lays down certain safeguards
to the person accused of crimes as stated below:
1.Ex post facto law (Art. 20(1)).
2.Double Jeopardy (Art. 20(2); and
3.Self-incrimination (Art. 20(3).
 Ex post facto law
• Article 20(1) provides: 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..
• Illustration:- A commits an offence in the year 1947, as per the act in
that year the punishment was imprisonment of fine or both the same
act was amended in 1949 which enhanced the punishment of the
same offence by as additional fine. In such a case the punishment
enhanced would not be applicable to the act of 1947, the same would
be set-aside.
• Double Jeopardy (Art. 20(2)) :-No person shall be prosecuted and
punished for the same offence more than once.

• Self-incrimination (Art. 20(3):- No person accused of any offence

shall be compelled to be a witness against himself.
Article 21: Protection of life and personal
liberty
• No person shall be deprived of his life or personal liberty except
according to procedure established by law.
• Right to Life means the right to lead meaningful, complete and
dignified life. It does not have restricted meaning. It is
something more than surviving or animal existence. The
meaning of the word life cannot be narrowed down and it will
be available not only to every citizen of the country .
Personal Liberty means freedom from physical restraint of the person by personal incarceration or otherwise
and it includes all the varieties of rights other than those provided under Article 19 of the Constitution.
Procedure established by Law means the law enacted by the State.. Right covered under Article 21 on the
basis of earlier pronouncements and some of them are listed below:
(1) The right to go abroad.
(2) The right to privacy.
(3) The right against solitary confinement.
(4) The right against hand cuffing.
(5) The right against delayed execution.
(6) The right to shelter.
(7) The right against custodial death.
(8) The right against public hanging.
(9) Doctors assistance
Article 22 Protection against arrest and
detention in certain cases
• Two parts of Article 22: First part deals with the cases of ordinary law
(i.e. When a person is alleged to have committed an offence) and the
second part deals with the cases of preventive detention law [i.e.
When police authorities are suspicious].
• However, the Article 22(3) says that the above safeguards are not
available to the following: [i]If the person is at the time being an
enemy alien. [ii]If the person is arrested under the certain law which
is made for the purpose of the “Preventive Detention”.
• The first part of the Article 22 confers the following rights on a person
who is arrested or the detained under the ordinary law: (i) The right
to be informed of the grounds of arrest. (ii) The right to consult and
to be defended by the legal practitioner. (iii) The right to be produced
before a magistrate within 24 hours, excluding the journey of the
time. (iv) Right to be released after 24 hours unless the magistrate
authorizes further detention. In fact, these safeguards are not
available to an alien or a person arrested or to detained under a
preventive the detention law. Note:
• In Hussainara Khatoon case, S.C. Declared Right to Free Legal Aid as
the Fundamental Right. 2. Constitutional Amendment Act, 1976
provided for Article 39A: Free legal Aid.
• The second part of the Article 22 grants protection to the persons who are
arrested or detained under the preventive detention law. Well, this
protection is available to both the citizens as well as aliens and it includes
the following: (i) The detention of the person cannot exceed three months
unless an advisory board reports sufficient cause for the extended
detention. In fact, the board is to consist of the judges of the high court. (ii)
The grounds of detention should be communicated to the detenu.
However, the facts which is considered to be against the public interest
need not be disclosed. (iii) The detenu should be afforded an opportunity
to make a representation against the detention order. The essence of
Article 22(2) is that this right is available only against illegal detention and
not against custody of person on the basis of a judicial order.
• Safeguards against the misuse of power of Detention:-
• The Every case of the preventive detention must be authorized by the law and
not at the will of the executive.
• In fact, the Preventive detention cannot extend beyond a period of the 3 months .
• The every case of the preventive detention must be placed before an Advisory
Board composed of the Judges of the High Court (or persons qualified for Judges
of the High Court)
• In fact, the case must be presented before the Advisory Board approx within 3
months.
• A continued detention after 3 months must have consent of the Advisory Board.
• In fact, the person will be given the opportunity to afford the earliest opportunity
to make a representation against the preventive detention.
• No person can be detained indefinitely.
 Right against exploitation
(Article 23 And article 24 )

Article 23 : Prohibition of traffic in Human beings and forced labour.

Article 24 : Prohibition of employment of children in factories etc.
Article 23 : Prohibition of traffic in Human
beings and forced labour.
• The Indian laws prohibit slavery and any act which harms the dignity
and freedom of a person. Every year many people are forced to
provide labour at cheap rates and millions of women and children
become victims of human trafficking. In 2016, there were 18.3 million
people in modern slavery in India according to the Global Slavery
Index.
• The Right against exploitation enshrined in Article 23 and 24 of the
Indian Constitution guarantees human dignity and protect people
from any such exploitation. Thus, upholding the principles of human
dignity and liberty upon which the Indian Constitution is based.
Article 23 : Prohibition of traffic in Human
beings and forced labour.
• Part one of Article 23 of Indian Constitution: prohibits the trafficking
of human beings, begar and any other similar form of forced labor.
• It also states that any contravention of this provision is punishable by
the law.
• It explicitly prohibits:-
-Begar
-Similar forms of forced labour like Bonded Labour or Prison Labour
-Human Trafficking
Article 23 : Prohibition of traffic in Human
beings and forced labour.
• Part (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
Article 24 Prohibition of employment of
children in factories etc.
• Article 24 Prohibition of employment of children in factories, etc.
“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.”
Some important case laws:-
1. People’s Union for Democratic Rights v. Union of India
2. Bandhua Mukti Morcha v. Union of India
 Right to freedom of Religion (Article 25 to 28)

• Article 25 (Freedom of conscience and free profession, practice, and

propagation of religion)
• Freedom of conscience: Inner Freedom of an individual to mould his
relation with God or Creature in whatever way he desire.
• Right to profess: Declaration of one’s religious beliefs and faith openly
and freely
• Right to practice: Performance of religious practices, worship, rituals,
etc.
• Right to propagate: Transmission & Dissemination of one’s religious
beliefs to others.
 Article 25
• The above-mentioned freedoms are subject to public order, health, and
morality.
• This article also gives a provision that the State can make laws which
regulates and restricts any financial, economic, political, or other secular
activity associated with any religious practice.
Explanation:-
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 reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina or
Buddhist religion, and the reference to Hindu religious institutions shall be
construed accordingly
 Article 26
• Article 26 (Freedom to manage religious affairs)
• This Article provides that every religious denomination has the
following rights, subject to morality, health, and public order.
• The right to form and maintain institutions for religious and charitable
intents.
• The right to manage its own affairs in the matter of religion.
• The right to acquire the immovable and movable property.
• The right to administer such property according to the law.
 Article 27
• Article 27 (Freedom as to payment of taxes for promotion of any
particular religion)
• According to Article 27 of the Constitution, there can be no taxes, the
proceeds of which are directly used for the promotion and/or
maintenance of any particular religion/religious denomination.
 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 recognised 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.
4 type of educational institutions:-
1. Wholly maintained by state
2. Administered by state but established under trust
3. Recognized by the state, or
4. Receiving Aid from the state l
 Cultural and Educational Rights
(Article 29 & 30)
Protection of interests of minorities (Article 29)
1. Any section of citizen residing in any part of India 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
• The First Provision Protects the right of a group while the second
Provision Guarantee the right of a citizen as an Individual
• Article 29 Grants Protection to both Religious Minorities as well as
Linguistic Minorities.
• SC also held that the right to conserve thelanguage Includes the right
to agitate forProtection of Language, hence political speeches does
not amount to corrupt practices.
 RIGHT OF MINORITIES TO ESTABLISH AND
ADMINISTER EDUCATIONAL INSTITUTION (Art 30)
• RIGHT OF MINORITIES TO ESTABLISH AND ADMINISTER EDUCATIONAL
INSTITUTION (ARTICLE 30)
• All minorities shall have the right to establish and administer
educational institution of their choice
• The compensation amount fixed by the state for the compulsory
acquisition of any property of the minority educational institution
shall not restrict the right guaranteed to them
• In granting aid State shall not discriminate against any educational
institution managed by minorities.
MINORITY EDUCATIONAL INSTITUTE ARE OF 3 TYPES
1. RECOGNITION AND MONEY/AID FROM THE STATE
2. RECOGNITION AND NO MONEY/AID
3. NEITHER RECOGNITION NOR MONEY/AID
 MALANKARA CATHOLIC COLLEGE
CASE 2007, SC JUDGEMENT
• Choose governing bodies
• Appoint teaching and non-teaching staffs
• Admit eligibility of students
• Use its properties and assets for benefit of institutions
• Rights are for equality with the majorities not to place minority in
advantageous position
• Rights are not absolute nor it include right to mal administration
• Ensure the administration is efficient and sound
• Extension of aid does not alter the nature and character of minority
education
• Article 12 deals with the definition of state. This definition is applicable for part III of constitution.
• Article 13 deals with the laws inconsistent or in derogation of the fundamental rights.
• Right to equality, including equality before law, prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment.
• Right to freedom of speech and expression, assembly, association or union, movement, residence,
and right to practice any profession or occupation (some of these rights are subject to security of
the State, friendly relations with foreign countries, public oorder decency or morality).
• Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human
beings.
• Right to freedom of conscience and free profession, practice, and propagation of religion.
• Right of any section of citizens to conserve their culture, language or script, and right of
minorities to establish and administer educational institutions of their choice.
• Article 31 is repealed by the constitution (Forty-forth Amendment) Act, 1978, which was earlier
right to property in original constitution ; and
• Right to constitutional remedies for enforcement of Fundamental Rights